The Eighth Amendment in an Arizona prison: housing the predator with the prey

Cortez v. Skol, No. 12-16688 (9th Cir. Jan. 26, 2015). 

 Red wolf watching deer, courtesy of B. Crawford / USFWS

Red wolf watching deer, courtesy of B. Crawford / USFWS

The Lewis Prison Complex is a sprawling prison some 40 miles west of Phoenix. In 2004, the prison’s Morey Unit, home to some of Arizona’s most dangerous prisoners, was the site of the longest prison standoff in U.S. history. During the 15-day standoff, two officers were taken hostage. Eventually, a surrender plan was negotiated and the crisis ended peacefully. A report on the standoff later found that the prison’s Morey Unit “suffered from complacency and a general lack of professionalism.” If this case is any indication, the Morey Unit may still have some serious problems.

Within the Morey Unit is a smaller “detention unit.” This unit, oddly, holds both inmates who had recently assaulted others and inmates who were at risk of being assaulted and had sought protection. This case arises from the detention unit.

One day, a prison guard escorted three detention-unit inmates to see visitors. On the way, he led them through a dirt path called “no man’s land,” where there are no cameras and no other prison guards. On the way back from seeing visitors, two of the inmates brutally assaulted the third, Philip Cortez. Cortez suffered severe brain damage from the attack. He was later granted clemency, was released from prison, and, sadly, died of an apparent drug overdose. 

Cortez’s mother brought suit against Bill Skol, the prison guard who had been escorting the three inmates when the attack occurred. She asserted that Skol had violated Cortez’s rights under the Eighth Amendment. The suit was dismissed by the district court. On appeal, the question is whether there should be a trial to determine whether Skol was deliberately indifferent to a serious risk to Cortez’s safety. The Ninth Circuit answers “yes.

To begin with, Skol’s colleagues testified during discovery that trying to escort three inmates by yourself is dangerous, especially in no man’s land. One of Skols colleagues even testified that Skol himself had cautioned him not to escort three prisoners by himself.

There was also a perception among the other inmates that Cortez was in the detention unit because his safety had been threatened elsewhere. There is some evidence that Skol knew of this perception. These facts are important: it was common knowledge among the prison guards that inmates placed in the detention unit for their own safety are targeted for attack by other inmates in the detention unit. And, in fact, Skol later admitted that the three inmates he was escorting had recently exchanged heated words.

Finally, the Morey Unit’s written policy was to restrain both the arms and the legs of the inmates when they were moved from one place to another. Skol knew of that policy. For these three inmates, though, Skol used only leg chains—leaving the inmates’ arms free.

So the Ninth Circuit remands for a trial on the Eighth Amendment claim. What remains puzzling, however, is why the prison would put the most dangerous and the most threatened inmates in precisely the same place.