Naki v. Hawaii, State of, et al

Filing 138

ORDER denying 131 Plaintiff's Motion for Reconsideration. See attached Order. Signed by Senior Judge James A Teilborg on 10/14/2015.(TLB)

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WO 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Peter K. Naki, No. CV-13-02189-PHX-JAT Plaintiff, 10 11 v. 12 ORDER Hawaii, State of, et al., 13 Defendants. 14 15 Pending before the Court is Peter K. Naki’s (“Plaintiff’s”) Motion for 16 Reconsideration (Doc. 131) pursuant to Fed. R. Civ. P. 59(e) of the Court’s August 5, 17 2015, Order granting summary judgment in favor of Defendants Hawaii, State of, et al. 18 (Doc. 127). The Court now rules on the motion. 19 I. 20 Background 21 This matter arises out of injuries suffered by Plaintiff after he allegedly fell from 22 the top bunk of his prison cell in Saguaro Correctional Center (“SCC”). (Doc. 127 at 1). 23 Plaintiff alleges, among other claims, that Defendant1 was negligent when it forced 24 Plaintiff to use the top bunk in his cell without providing adequate safety measures and 25 proper means to ascend to and descend from his bunk. (Doc. 39 at 7-8). 26 On August 5, 2015, the Court ruled on Defendant’s Motion for Summary 27 1 28 Defendants Hawaii, State of, the Hawaii Department of Public Safety, and Doe Defendants 1-100 were dismissed from the case. (Doc. 43). Corrections Corporation of America is the only remaining defendant in the matter. 1 Judgment (Doc. 108) and Motion to Exclude Plaintiff’s Human Factors Expert Joellen 2 Gill. (Doc. 107). The Court found—with respect to Plaintiff’s proposed expert witness— 3 that under Fed. R. Civ. P. 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 4 U.S. 579 (1993), Ms. Gill’s proposed testimony was “unsupported by any reasoning, 5 data, facts, principles, techniques, or methods,” and would not be admitted. (Doc. 127 at 6 6). Turning to Defendant’s motion for summary judgment, the Court found that “under 7 Arizona law, when ‘the alleged lack of care occurred during [a] professional or business 8 activity, the plaintiff must present expert witness testimony’” to establish the requisite 9 standard of care, (Doc. 127 at 9 (quoting St. Joseph’s Hosp. & Med. Ctr. v. Reserve Life 10 Ins. Co., 742 P.2d 808, 816 (Ariz. 1987))), and that “[c]ourts have applied this principle 11 to prison operations.” (Id. (citations omitted)). Absent Plaintiff’s ability to proffer expert 12 testimony, Defendant was entitled to summary judgment on the negligence claim. (Id.). 13 The Court also granted Defendant summary judgment on Plaintiff’s Title 42 U.S.C. § 14 1983 (2012) claim. (Id. at 10). 15 On August 19, 2015, Plaintiff filed a motion that the Court characterized as a Rule 16 59(e) motion to provide relief from a final judgment.2 (Doc. 131). Although Plaintiff had 17 simultaneously filed a notice of appeal, the Court retained jurisdiction over the matter 18 under Fed. R. App. Proc. 4(a)(4)(B)(i). (Doc. 134 at 2). On September 11, 2015, the 19 Court issued an Order that acknowledged it had “recently held that a claim for negligence 20 against prison officials in the failure to provide medical attention in some circumstances 21 does not require expert testimony as to the standard of care,” and ordered Defendant to 22 respond to Plaintiff’s motion and address whether the issues surrounding the negligence 23 claim fell within “the common understanding of jurors.” (Doc. 134 at 5). Having 24 reviewed the parties’ filings, the Court now addresses the motion. 25 26 27 28 2 Plaintiff’s motion failed to address the Court’s rulings that barred Ms. Gill’s testimony and granted Defendant summary judgment on the 42 U.S.C. § 1983 claim. The Court therefore confines its discussion to Plaintiff’s contention that the Court committed clear error when it granted Defendant summary judgment on his negligence claim. -2- 1 II. Legal Standard 2 “Although Rule 59(e) permits a district court to reconsider and amend a previous 3 order, the rule offers an ‘extraordinary remedy, to be used sparingly in the interests of 4 finality and conservation of judicial resources.’” Kona Enters. v. Estate of Bishop, 229 5 F.3d 877, 890 (9th Cir. 2000) (citation omitted). “[A] motion for reconsideration should 6 not be granted, absent highly unusual circumstances, unless the district court is presented 7 with newly discovered evidence, committed clear error, or if there is an intervening 8 change in the controlling law.” Id. (quoting 389 Orange Street Partners, 179 F.3d 656, 9 665 (9th Cir. 1999)). “A Rule 59(e) motion may not be used to raise arguments or present 10 evidence for the first time when they could reasonably have been raised earlier in the 11 litigation.” Id. (emphasis in original). 12 13 III. Analysis 14 Plaintiff has not brought to the Court’s attention newly discovered evidence 15 pertaining to his case, and has not argued that there has been an intervening change in the 16 controlling law. Rather, Plaintiff contends that the Court committed clear error in two 17 respects: (1) the Court “overlooked the common law standard of care,” because “[i]t is 18 not necessary to have an expert witness to establish the standard of care in prisons”; 19 (Doc. 131 at 2); and (2) the Court ignored Plaintiff’s argument that his negligence claim 20 was also based on Defendant repeatedly instructing Plaintiff to climb on to his bunk using 21 unsecured “lockers” stacked on top of one another. (Id. at 4). The Court analyzes each 22 argument in turn. 23 24 A. The Necessity of Expert Testimony to Establish the Standard of Care 25 The Court first considers Plaintiff’s argument that under Arizona law a proffer of 26 expert testimony is not necessary to establish the standard of care for a correctional 27 facility. As stated in the August 5, 2015 Order: in ordinary negligence actions, “the 28 standard imposed is that of the conduct of a reasonably prudent man under the -3- 1 circumstances.” Bell v. Maricopa Medical Ctr., 755 P.2d 1180, 1182 (Ariz. Ct. App. 2 1988) (citing Paul v. Holcomb, 442 P.2d 559, 561 (Ariz. 1968)). (Doc. 127 at 9). “In such 3 cases, it is not necessary for the plaintiff to present evidence to establish the standard of 4 care because the jury can rely on its own experience in determining whether the 5 defendant acted with reasonable care under the circumstances.” Id. (citing Rossell v. 6 Volkswagen of Am., 709 P.2d 517, 523-24 (Ariz. 1985)). But under Arizona law, when 7 “the alleged lack of care occurred during [a] professional or business activity, the plaintiff 8 must present expert witness testimony as to the care and competence prevalent in the 9 business or profession.” St. Joseph’s Hosp. & Med. Ctr., 742 P.2d at 816. A number of 10 courts have applied this standard to correctional facilities.3 11 Plaintiff argues that Ballesteros, 2013 Ariz. App. Unpub. LEXIS 19, at *10, stands 12 for the principle that under Arizona law, “in prisons, the standard [of care] is that of a 13 reasonably prudent person and it is not necessary for the plaintiff to present evidence to 14 establish the standard of care . . . .’” (Doc. 131 at 2 (citation omitted)). The Court 15 disagrees. Ignoring the unpublished status of the opinion, the Ballesteros court did not 16 articulate such a broad, sweeping holding. Rather, the court—after acknowledging that 17 generally “the issue of inmate safety is not ‘within the realm of the everyday experiences 18 19 20 21 22 23 24 25 26 27 28 3 See e.g., Gordon v. Kitsap County, No. 45648-6-II, 2015 Wash. App. LEXIS 981, at *7-*8 (Wash. Ct. App. May 5, 2015) (internal quotation marks omitted) (concluding that “in light of the complex considerations inherent in the management of a correctional facility . . . expert testimony [is] necessary to establish what constitutes reasonable care”); Red. Equip. PTE Ltd. v. BSE Tech, LLC, No. 2:13-CV-1003-HRH, 2014 U.S. Dist. LEXIS 13070, at *17 (D. Ariz. Sept. 18, 2014) (citing Porter v. Arizona Dep’t of Corr., No. 2:09-CV-2479-HRH, 2012 U.S. Dist. LEXIS 186799, at *3–*5 (D. Ariz. Sept. 17, 2012)); Villalobos v. Bd. of County Comm’rs, 322 P.3d 439, 442 (N.M. Ct. App. 2014) (holding that expert testimony was required to assist the jury in rendering a decision on the standard of care imposed on prison officials monitoring inmates); Seawright v. State, No. 2:11-CV-1304-PHX-JAT, 2013 WL 4430928, at *1 (D. Ariz. Aug. 16, 2013) (noting that the plaintiff conceded “that the law in Arizona requires an expert witness to establish the standard of care” for a gross negligence and wrongful death claim brought against prison officials); Ballesteros v. State, 1 CA-CV 12-0005, 2013 Ariz. App. Unpub. LEXIS 19, at *10 (Ariz. Ct. App. Jan. 8, 2013) (quoting with approval Hughes v. District of Columbia, 425 A.2d 1299, 1303 (D.C. 1981), for the general proposition that “the issue of inmate safety is not ‘within the realm of the everyday experiences of a lay person’”); Porter, 2012 U.S. Dist. LEXIS 186799, at *3– *5 (concluding that the “professional standard of care” applied “because the alleged lack of care was by correction officers acting in their professional capacity”). -4- 1 of a lay person,’” 2013 Ariz. App. Unpub. LEXIS 19, at *10 (quoting Hughes, 425 A.2d 2 at 1303)—concluded that “inmate access to medical care, after an appropriate request, is 3 within a lay person’s realm of experience.” Id. Thus, “under the circumstances of [the] 4 case, the State and its prisons officials [were not] subject to a professional standard of 5 care . . . .” Id. The court reasoned that because the plaintiff was “experiencing influenza- 6 like symptoms” and “did not receive medical evaluation or treatment” for over a week 7 despite having “repeatedly requested medical attention,” id. at *2, “[t]he State’s 8 management of prisoner medical care and its failure to respond to Ballesteros’s repeated 9 requests for care [were] not factual issues outside the common understanding of jurors.” 10 Id. at *8-*9. The court’s holding comports with ample Arizona precedent recognizing 11 that expert testimony is necessary when “the jury [cannot] rely on its own experience in 12 determining whether the defendant acted with reasonable care under the circumstances,” 13 Bell, 755 P.2d at 1182 (citation omitted). Consequently, Plaintiff’s argument fails. 14 The Court’s inquiry continues, however. As noted supra, the September 11, 2015, 15 Order explained that this Court recently held in Reidhead v. Arizona, No. 2:12-CV-12- 16 00089-PHX-JAT, 2014 U.S. Dist. LEXIS 85626, at *16-*18 (D. Ariz. June 24, 2014)— 17 that at least in some circumstances—expert witness testimony is not required to establish 18 the standard of care in a negligence claim against prison officials. (Doc. 134 at 5). Having 19 reviewed the parties’ filings and requisite case law, the Court concludes that Plaintiff’s 20 negligence claim is not within the “common understanding of jurors,” Rossell, 709 P.2d 21 at 524 (citation omitted), and Reidhead does not absolve Plaintiff of the requirement to 22 proffer expert testimony on the standard of care. 23 At issue in Reidhead was the failure, by numerous prison officials, to monitor the 24 condition of a female inmate exhibiting commonly recognized symptoms of a life- 25 threatening health issue. Inmate Brenda Todd was in her cell when she first “reported to 26 another inmate that she was having trouble breathing,” and then when the on-duty “pill 27 nurse” made her rounds that evening, Todd informed the nurse that she was suffering 28 from the “classic symptoms” of a heart attack. Reidhead, 2014 U.S. Dist. LEXIS 85626, -5- 1 at *2, *11. Specifically, Todd “was experiencing chest pain, left arm pain, numbness, 2 tingling, pain in her neck, and throat constriction.” Id. at *2. Despite “begging for help,” 3 id. (internal quotation marks omitted), the nurse told Todd to take an ibuprofen, drink 4 water, lay down, and that there was “nothing” that the nurse could do for her. Id. at *2- 5 *3. That evening, no efforts were made by on-site prison officials to monitor Todd or 6 address the symptoms she articulated earlier. Id. at *3-*4. Todd’s body was discovered 7 the next morning by a corrections officer conducting a security check, and an autopsy 8 revealed that she “had been dead for a number of hours.” Id. at *4 (internal quotation 9 marks omitted). 10 The defendants argued that the plaintiff’s negligence claims must fail because the 11 plaintiff failed to proffer expert witness testimony on “the standard of care of a pill nurse 12 employed by the Arizona Department of Corrections.” Reidhead, 2014 U.S. Dist. LEXIS 13 85626, at *10-*11. This Court rejected the argument, finding that in light of Todd 14 exhibiting “the classic symptoms of a heart attack that are widely known even among 15 those with no formal training,” id. at *17, and the prison officials’ failure to conduct 16 standard “security checks,” “investigate . . . banging noises,” inform on-duty officials of 17 the “identify of the inmate having breathing problems,” and their failure to respond to 18 Todd’s numerous “requests for medical attention,” id. at *16-*17, “[a] reasonable juror 19 could find such negligence occurred not only by the pill nurse’s failure to obtain medical 20 aid for Todd, but also by the other prison officers’ failure” to adequately carry out their 21 job responsibilities. Id. Similarly, Ballesteros, supra, involved a visibly ill inmate 22 repeatedly having his requests for medical assistance denied over the course of an entire 23 week by prison officials—even as his condition worsened to the point of becoming 24 terminal. 2013 Ariz. App. Unpub. LEXIS 19, at *10. Reidhead and Ballesteros therefore 25 do not stand for the principle that the standard of care for correctional facilities is simply 26 that of a reasonably prudent person, but rather both cases are examples of the exception 27 under Arizona law recognizing that expert testimony on a profession’s or business’s 28 standard of care is not necessary when “the negligence is so grossly apparent that a -6- 1 layman would have no difficulty in recognizing it.” Bell, 755 P.2d at 1183 n.1; see also 2 Nina Dejonghe v. E.F. Hutton & Co., Inc., 830 P.2d 862, 867 (Ariz. Ct. App. 1991). 3 In the instant matter, Plaintiff seeks to establish that Defendant was negligent by 4 “failing to provide Plaintiff with proper . . . devices to enable [Plaintiff] to safely descend 5 and/or ascend” from his top bunk, (Doc. 39 at 8), by “refusing to reassign Plaintiff from 6 the top level of the bunk,” (Doc. 39 at 9), by “instructing” Plaintiff to climb up to his 7 bunk by using “unstable plastic locker crates,” and by “repeatedly ignoring Plaintiff’s 8 complaints.” (Doc. 39 at 9). First, the Court finds that Defendant’s system-wide cell bunk 9 policies involve “factual issues outside the common understanding of jurors.” Rossell, 10 709 P.2d at 524 (citing Atchison, Topeka, & Santa Fe Railway Co. v. Parr, 391 P.2d 575, 11 578-79 (Ariz. 1964)). Specifically, Plaintiff’s claim attacks the policy and process by 12 which Defendant places inmates in particular cell bunks, the administrative process for 13 requesting bunk changes, the authority of correctional officers to make such changes, the 14 rationale behind Defendant’s refusal to affix ladders or other fixtures to the top bunks, the 15 frequency and severity of injuries suffered among the prison population from bunk falls, 16 and consideration of inmates’ physical characteristics in assigning bunks. Generally, 17 “[p]rison operations are outside the common knowledge of the average juror,” Porter, 18 2012 U.S. Dist. LEXIS 186799, at *14-*15, and the prison operation being attacked here 19 is a system designed to house a large number of inmates of differing physical 20 characteristics while balancing the interests of a particular inmate’s physical safety and 21 well-being with the safety of correctional officers and other inmates in the facility. These 22 factual issues are beyond a lay juror’s understanding. Rossell, 709 P.2d at 524 (citation 23 omitted). 24 Second, Plaintiff has failed to establish “grossly apparent” negligence on the part 25 of Defendant that would be obvious to a layman. Bell, 755 P.2d at 1183 n.1. Plaintiff’s 26 claim is premised on three principal factual allegations: (1) Defendant failed to provide 27 Plaintiff with a ladder to access his bunk; (2) Defendant failed to permit Plaintiff to 28 transfer to a lower bunk; and (3) Defendant instructed Plaintiff to access his bunk by -7- 1 climbing up lockers that were stacked on top of one another.4 (Doc. 39 at 8-9). In 2 contrast, in Reidhead, the negligence was grossly apparent where the defendants flatly 3 ignored the “classic symptoms” of widely recognizable trauma. 2014 U.S. Dist. LEXIS 4 85626, at *16-*17. In Ballesteros, the defendants’ negligence was grossly apparent and 5 evident to a lay juror where prison officials ignored an inmate’s deteriorating physical 6 condition to the point where it became terminal. 2013 Ariz. App. Unpub. LEXIS 19, at 7 *10; see also Tiller v. Von Pohle, 230 P.2d 213 (Ariz. 1951) (negligence was grossly 8 apparent when a doctor left a medical rag in a patient for two years); Carranza v. Tucson 9 Med. Ctr., 662 P.2d 455, 456-57 (Ariz. Ct. App. 1983) (concluding that expert testimony 10 was not required to prevail on the theory of res ipsa for a burn on the patient’s leg 11 following heart surgery). Taken together, the Court finds that the facts alleged by 12 Plaintiff do not rise to the level of what courts have treated as “grossly apparent” 13 negligence in the past. 14 Because the Court has found that Plaintiff’s negligence claim rests on factual 15 issues beyond the common understanding of the average juror, and Plaintiff is unable to 16 show that Defendant was negligent in a “grossly apparent” manner, the Court concludes 17 that Plaintiff must proffer expert testimony to establish the standard of care in this case. 18 See St. Joseph’s Hosp. & Med. Ctr., 742 P.2d at 816. 19 20 B. The Court’s Consideration of Plaintiff’s Factual Allegations 21 The Court now turns to Plaintiff’s remaining argument, that the Court committed 22 clear error when it ignored Plaintiff’s argument that his negligence claim was based on 23 Defendant’s repeated instructions to Plaintiff directing him to climb on to his bunk by 24 stacking unsecured boxes on top of one another in violation of institution staff 25 instructions. (Doc. 131 at 2, 6). The Court disagrees. The Court considered all of 26 Plaintiff’s factual allegations when it ruled on whether Defendant was entitled to 27 judgment as a matter of law. As a general matter, the Court has treated Plaintiff’s claims 28 4 The Court’s consideration of this factual allegation is addressed fully infra. -8- 1 against Defendant as a “professional standard of care case because the alleged lack of 2 care was by correction officers acting in their professional capacity.” Porter, 2012 U.S. 3 Dist. LEXIS 186799, at *14-*15. Ordinarily, “[p]rison operations are outside the 4 common knowledge of the average juror,” as “[c]orrection officers have to manage 5 potentially dangerous individuals living in close proximity to each other,” and “[t]he 6 standard of care required in such an environment is a matter beyond the ken of the 7 average juror that requires expert testimony.” Id. at *15 (citation and internal quotation 8 marks omitted). However, Plaintiff need not present expert testimony if he can 9 demonstrate that “the negligence is so grossly apparent that a layman would have no 10 difficulty in recognizing it,” Bell, 755 P.2d at 1183 n.1, as the plaintiff did in Reidhead, 11 2014 U.S. Dist. LEXIS 85626, at *16-*17. 12 The Court acknowledges that Plaintiff’s factual allegation—that Warden Griego 13 directed Plaintiff to use stacked and unsecured “lockers” to climb on to his top bunk—is 14 a closer call. (Doc. 115-2 at 4). A cursory examination of the facts, allegedly showing 15 that an individual in a position of authority directed Plaintiff to stack unsecured items on 16 top of one another in order to hoist himself on to a bunk 4’8” off of the floor, (Doc. 115-1 17 at 8), may appear to be within the “common understanding of jurors.” However, the court 18 concludes otherwise for two reasons: (1) the allegation is based wholly on the 19 management of “potentially dangerous individuals living in close proximity to each 20 other” by correctional officers “acting in their professional capacity,” Porter, 2012 U.S. 21 Dist. LEXIS 186799, at *14-15; and (2) as the Court discussed supra, the placement of 22 cell bunks and inmate assignments encompass myriad considerations to be weighed by 23 the correctional facility that are “beyond the ken of the average juror.” Further, although 24 Plaintiff’s allegation that Warden Griego violated Defendant’s “internal policies and 25 procedures” by instructing Plaintiff to use stacked lockers to climb on to his bunk may be 26 evidence of negligence,” id. at *14, that factual allegation alone does not constitute 27 “grossly apparent” negligence. Bell, 755 P.2d at 1183 n.1. Thus, in the context of a 28 correctional facility, Plaintiff’s negligence claim rests on factual issues “beyond the -9- 1 common understanding of jurors,” and expert testimony is necessary. Rossell, 709 P.2d at 2 524 (citation omitted). 3 Based on the foregoing analysis, Plaintiff has failed to demonstrate that the Court 4 committed clear error when it granted Defendant’s motion for summary judgment. 5 Accordingly the Court will deny Plaintiff’s motion for reconsideration. 6 7 IV. 8 For the aforementioned reasons, 9 IT IS ORDERED that Plaintiff’s motion for reconsideration (Doc. 131) is hereby 10 11 Conclusion DENIED. Dated this 14th day of October, 2015. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 10 -

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