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Petty v. State

United States District Court, D. Arizona

May 15, 2018

Penny Petty, et al., Plaintiffs,
v.
State of Arizona, et al., Defendants.

          ORDER

          Douglas L. Rayes United States District Judge.

         On July 4, 2014, prisoner Gordon Emil Lee was murdered by his fellow inmates. Lee's Estate, through Personal Representative Penny Petty, and his two surviving sons, Shenison and Kyle Lee (collectively “Plaintiffs”) bring this action against the State of Arizona and various prison officials. Plaintiffs allege that the State and Correctional Officers Fernando Herrera and Raymond Cedillos caused Lee's death through gross negligence. Plaintiffs also allege that Warden Chris Moody, Deputy Warden Burgess, Security Operations Officer Keith Smith, Correctional Lieutenant Swirsky, Herrera, and Cedillos violated Lee's Eighth and Fourteenth Amendment rights by failing to protect him from harm by other inmates. Before the Court is Defendants' motion for summary judgment on all claims, which is fully briefed. (Docs. 116, 126, 132.) The motion is fully briefed. For the following reasons, Defendants' motion is granted.[1]

         SUMMARY JUDGMENT STANDARD

         Summary judgment is appropriate when there is no genuine dispute as to any material fact and, viewing those facts in a light most favorable to the nonmoving party, the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Summary judgment may also be entered “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is material if it might affect the outcome of the case, and a dispute is genuine if a reasonable jury could find for the nonmoving party based on the competing evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         The party seeking summary judgment “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323. The burden then shifts to the non-movant to establish the existence of a genuine and material factual dispute. Id. at 324. The non-movant “must do more than simply show that there is some metaphysical doubt as to the material facts, ” and instead “come forward with specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (internal quotation and citation omitted). Conclusory allegations, unsupported by factual material, are insufficient to defeat summary judgment. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).

         In addition to these general principles, this District's Local Rules of Practice impose specific requirements on the form and content of summary judgment motions. “Any party filing a motion for summary judgment must file a statement, separate from the motion and memorandum of law, setting forth each material fact on which the party relies in support of the motion.” LRCiv 56.1(a). Each of these facts “must refer to a specific admissible portion of the record where the fact finds support (for example, affidavit, deposition, discovery response, etc.).” Id. Likewise:

Any party opposing a motion for summary judgment must file a statement, separate from that party's memorandum of law, setting forth: (1) for each paragraph of the moving party's separate statement of facts, a correspondingly numbered paragraph indicating whether the party disputes the statement of fact set forth in that paragraph and a reference to the specific admissible portion of the record supporting the party's position if the fact is disputed; and (2) any additional facts that establish a genuine issue of material fact or otherwise preclude judgment in favor of the moving party. Each additional fact must be set forth in a separately numbered paragraph and must refer to a specific admissible portion of the record where the fact finds support.

LRCiv 56.1(b). The rule distinguishes between a separate statement of facts and a memorandum of law because the two documents serve different purposes. The court should be able to glean which facts, if any, are genuinely disputed by reviewing the parties' separate and controverting statements of facts. Working from that baseline of facts, the court then looks to the parties' memoranda of law to determine whether any genuinely disputed matters are material under governing law, or whether the movant is entitled to judgment as a matter of law. Thus, factual disputes should be aired in the parties' separate statements, while legal disputes should be addressed in their memoranda of law. The court may deem a movant's separate statement of facts to be true if the non-movant does not comply with these rules. See Szaley v. Pima Cty., 371 Fed. App'x 734, 735 (9th Cir. 2010).

         Here, Defendants submitted a separate statement of facts setting forth each material fact upon which they rely. (Doc. 117.) Each paragraph cites to specific evidence in the record against which no admissibility objections have been raised. In response, Plaintiffs submitted a controverting statement of facts that fails to put forth correspondingly numbered paragraphs, indicate whether facts asserted by Defendants are disputed or admitted, or cite to admissible portions of the record. (Doc. 127.) Plaintiffs' separate controverting statement of facts amounts to no more than a disorganized list of evidence and largely is unhelpful. Because Plaintiffs' controverting statement of facts is entirely out of compliance with LRCiv 56.1(b)(1), the Court deems admitted the facts set forth by Defendants for purposes of this order.[2]

         BACKGROUND

         In 1988, Lee was sentenced to 75 years in an Arizona state prison. (Doc. 117 ¶¶ 1-2.) Lee initially was placed in a close custody sex offender unit because of his sex-related crimes. (¶ 5.) In 1998, Lee requested to be housed in a protective custody unit. (¶ 95.) When an inmate is given protective custody, they are housed only with other protective custody inmates. (¶ 83.) Lee's request was granted, and he was moved into protective custody. (¶¶ 59-60, 97-98.) At the time of his death, Lee was housed at the Arizona State Prison Complex-Lewis (“ASPC-Lewis”), Bachman unit (“Bachman”), which is a protective custody unit. (¶ 99.)

         On June 25, 2014, there was a fight in Bachman between inmates Swan and Burns. (¶¶ 11-12.) Bachman Shift Commander Swirsky interviewed Swan, the suspected instigator of the altercation, and determined that the fight began as an attempt to stop harassment within the unit. (¶¶ 7, 12, 16, 19-20.) At no time during the interview did Swan mention Lee. (Id.) Although Lee was not directly involved in the altercation, he suffered superficial injuries that required medical treatment. (Doc. 117 ¶¶ 11, 12, 18, 69, 71; Doc. 117-1 at 13, 28.) At no time subsequent to the June 25 altercation, but prior to Lee's murder, did Lee complain of being harassed, report that he was in danger of being assaulted, or request to be moved from Bachman Unit. (¶¶ 19, 100.)

         In the early morning hours of July 4, 2014, Lee was murdered by ...


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