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Arizona Must Defend Claims Over Jail Attack

PHOENIX (CN) - Arizona may be liable for claims filed on behalf of a prison inmate who was assaulted by two others while a prison guard escorted them through "no man's land," a back-alley area without cameras, the 9th Circuit ruled Monday.

Marty Cortez filed suit against Arizona and Bill Skol, the prison guard, in 2009 for failure-to-protect and negligence on behalf of her now-deceased son, Philip.

On Nov. 16, 2007, officers applied belly chains -- but not leg irons, as allegedly required by prison policy - to move Cortez, Juan Cruz, and Steven Lavender from the detention unit to the visitation building. Skol, a visitation officer, was responsible for escorting inmates between the two structures.

While in "no man's land" - a back alley hidden from cameras and non-escorting officers - Cruz and Lavender attacked Cortez and stomped on the back of his head as he lay on the ground, handcuffed. Skol allegedly used pepper spray on Cruz and Lavender, but did not physically intervene in the attack, which allegedly lasted for five minutes.

Cortez suffered a brain injury from the assault, was granted clemency and released from prison. He later died of an apparent drug overdose.

The defendants filed motions for summary judgment, and a magistrate judge found that the evidence supported her claims. U.S. District Judge Jennifer Zipps disagreed, however, and found for Skol and Arizona.

"Given the inherently risky environment in which plaintiff Cortez's injuries occurred, there is no material issue of fact regarding whether plaintiff Cortez was exposed to an unreasonable risk, nor is there evidence to suggest that it was highly probable that harm would result," Zipps wrote.

Cortez promptly appealed. On Monday, the 9th Circuit held that there was enough evidence to show the "high-security" inmates were undermanned, and that Skol acted with indifference to Cortez's safety.

The opinion written by U.S. Circuit Judge Michelle T. Friedland, on behalf of a three-judge panel, noted that Skol admitted to an investigator that he overhead "a lot [of] talk and harassing words between the three inmates in the back cage," had reason to know that Cortez was in protective custody and was at risk for attack by other prisoners, and knew that prison policy required leg restraints.

"Skol's admitted awareness of the policy, combined with the prison administrators' testimony regarding its effect, raises a genuine issue as to whether Skol proceeded with the escort despite knowing that the inmates were not properly restrained," Friedland wrote.

Since there was enough evidence to show Skol acted with "deliberate indifference" toward Cortez, the State of Arizona still faces negligence claims against it, the panel said.

"Because we have concluded that there are material fact disputes with respect to deliberate indifference, and because Arizona's gross negligence standard is lower than the federal deliberate indifference standard, we necessarily conclude that there are also material fact disputes with respect to gross negligence," Friedland wrote. "Indeed, in addition to being responsible for Skol's behavior, the State may also be liable for the aggregate conduct of other prison staff."

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