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Fifer v. United States

United States District Court, D. Arizona

July 28, 2017

Oray Fifer, Plaintiff,
v.
United States of America, Defendant.

          FINDINGS OF FACT AND CONCLUSIONS OF LAW

          NEIL V. WAKE, SENIOR UNITED STATES DISTRICT JUDGE

         On August 16, 2012, plaintiff Oray Fifer filed a suit against the United States that the Court construed as alleging federal corrections officers committed a battery when they shot him with a rubber pellet gun amid a 2010 prison riot at the Federal Correctional Institution in Phoenix, Arizona (“FCI Phoenix”), where he was an inmate. Such an action against the United States for damages lies under the Federal Tort Claims Act (“FTCA”). After a three-day trial, the Court makes the following findings of fact and states the following conclusions of law pursuant to Rule 52(a)(1).

         I. FINDINGS OF FACT

         A. Evidence at Trial

         On September 3, 2010, Fifer was an inmate at FCI Phoenix. At the time, Fifer lived in unit “Navajo A, ” a triangular cell block with a large common area in the center. The unit featured two floors of cells that altogether housed about 120 inmates. Fifer was assigned to a cell on the second floor. In addition to bunk beds and bathroom fixtures, each cell contained desks with removable chairs and lockers with removable padlocks. Interior stairwells connected the two floors, and a railing made of metal piping bordered the edge of the upstairs hallway. This formed a balcony overlooking the “dayroom, ” the central common area surrounded by the cell blocks. One corner of Navajo A also included a “crossover” hallway, sealed on both ends with secure doors that connected the unit with other wings of the prison.

         At approximately 5:00 PM that day, a racially-charged riot broke out between groups of Latino and African-American inmates in Navajo A. Fifer, an African-American, noticed the first signs of a disturbance from inside his cell, where he observed several Latino inmates standing in a line in the hallway. After leaving his cell to investigate, Fifer headed downstairs and stood near a TV on the dayroom perimeter. There he heard another inmate rush by and shout that an African-American inmate was being attacked. Fifer walked toward the stairs and saw a group of Latino inmates rush past him. He went back up to his cell, locked his locker to secure his belongings, and put on his boots to protect himself from the incident unfolding.

         Fifer then peered out of his cell and witnessed events escalate. He watched inmates congregate by race and attack each other in groups. Projectiles flew across Navajo A in multiple directions, everything from splintered mop handles and homemade “shanks” (improvised sharp weapons) to chairs and a mop bucket. At one point someone hurled a microwave over the second-floor balcony. A photograph depicting the aftermath shows scattered objects throughout the dayroom floor and a vandalized computer terminal previously available for inmates to use to check their email. Several witnesses recalled seeing blood and teeth on the ground.

         At this point Fifer observed a significant number of white and Latino inmates gathering down the hall from his cell. Fifer had recently learned of racially motivated violence against African-Americans at other prisons throughout the country and believed this could be something along the same lines. Uneasy at being the only black inmate on the second floor, Fifer decided to go downstairs rather than stay in his cell, characterizing the latter option as a “death trap” given his inability to lock the cell from the inside. Fifer ran back downstairs to roughly the same spot he had been before. From there he watched groups of inmates continue to fight and throw objects at one another. Fifer was never observed throwing anything, attacking anyone, or using any object as a weapon.

         Just before this unfolded, Corrections Office Justin Fletcher had entered a first-floor administrative office inside Navajo A with a window looking out into the dayroom. As he looked through the office window, he witnessed several inmates suddenly attack another inmate with a padlock wrapped in a sock, striking the individual on the head numerous times. Fletcher immediately called for backup and ordered the inmates to get on the ground and stop fighting. The inmates did not comply. As the uproar escalated, Fletcher repeated his calls for backup and eventually fled the office fearing for his personal safety.

         A backup team of about ten prison security officers soon arrived led by Lieutenant Thomas Peterson. Upon arrival, Peterson listened through the door leading to the Navajo A unit and determined the events on the other side to be chaotic. Outside the door two officers stood over an inmate who was sitting on the ground, his face covered in blood. After briefly observing the events from afar, Peterson and his staff determined that the unfolding riot was likely serious enough to require non-lethal force if inmates would not comply with verbal orders. Accordingly Peterson called for an arsenal of non-lethal riot-control weapons, though he and his team did not have time to obtain body armor or other defensive gear. The items that arrived included the following: L-8 “stinger-ball” grenade launchers, which fire exploding rubber balls filled with small rubber pellets; “pepper-ball” launchers, which fire small projectile balls filled with chemical irritants; and “flash-bang” grenades, which generate high-intensity light and sound for a short period of time upon detonation.

         As a first step to regain control of Navajo A, Peterson opened the door to the dayroom just long enough to throw a flash-bang grenade inside, and then quickly shut the door. Fifer heard the device explode, which caused the inmates in the dayroom to scatter. Fifer, too, ran for a stairwell and attempted to go back upstairs for fear that officers would soon arrive and discipline those remaining in the dayroom. He opted not to duck into a cell on the first floor given the risk of inflaming more racial tension by entering a cell occupied by members of another race. However, impaired vision in his right eye, dating back to an accident several years prior, required him to look down at his feet to avoid tripping. That impairment significantly slowed his pace.

         As Fifer slowly made his way up the stairs, Peterson and his team rushed in and began yelling orders. The evidence at trial was mixed as to what orders were given and when:

- Fifer himself testified that officers ordered inmates first to get to their cells, then to get down on the ground. According to him, there were several different officers calling out different orders, apparently at the same time.
- Fletcher testified at trial that upon entering Navajo A, he ordered inmates to get on the ground or stop fighting. In an affidavit submitted just after the incident in 2012, Fletcher said the same thing but added that at least one officer also ordered inmates to go back to their cells. (Doc. 73 at 22.)
- Lieutenant Kevin Schuster, one of the other officers present at the scene, initially testified at trial that both he and the other officers directed inmates only to get down on the ground. However, Schuster also submitted a 2012 affidavit in which he stated that upon entering Navajo A, his team encountered two groups of inmates. According to that affidavit, he and the other officers ordered the first group “to lay on the ground or get in their cells.” (Doc. 73 at 31.) The affidavit stated that this group complied, but that upon encountering a second group still fighting, he and the officers likewise instructed them “to lie down or get in a cell.” (Doc. 73 at 31.)
- Peterson, however, testified that the inmates were given two different sets of orders at two distinct points in time. According to his testimony, upon entering Navajo A, he and his team immediately instructed the inmates to get down on the ground or to get to cells. No one fired weapons at any specific inmates upon issuing these initial instructions. Most inmates had either dropped to the ground or holed up in cells soon after the orders were issued. However, some inmates still remained out in the open. To address this, Peterson testified that he and his team switched tactics, ordering those inmates only to get on the ground. Like Schuster and Fletcher, however, Peterson also submitted an affidavit in 2012. This affidavit tells it differently. According to his affidavit, Peterson and his team initially ordered inmates “to get on the ground in English and Spanish saying to lie on their stomach with their hands behind their back and to cover their heads.” (Doc. 73 at 26.) After an initial group of inmates complied with these orders, the officers moved farther into Navajo A and encountered inmates fighting and throwing objects at each other. In his affidavit, Peterson states that “these inmates were told to lie down or get in a cell.” (Doc. 73 at 27.)

         As Fifer ascended the stairs back up to the second floor, Peterson and a number of officers continued deploying various non-lethal weapons to quell the riot. According to Peterson, he and his staff did so only to the extent needed to regain control of the inmate population. However, they did not have time to deliberate over specific instances of weapon deployment given the rapid pace of events. Peterson testified that while he and his staff deployed some items intended to subdue all inmates at once, such as the flash-bang grenade and pepper-balls, they also sought to quell the chaos by targeting individual inmates. According to Peterson, part of the ...


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