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McCormick v. State

United States District Court, D. Arizona

November 13, 2019

Steven McCormick, et al., Plaintiffs,
v.
State of Arizona, et al., Defendants.

          ORDER

          David G. Campbell Senior United States District Judge

         Plaintiff Steven McCormick, the father of Andrew McCormick, and Jody McCormick, on her own behalf and as personal representative of the Estate of Andrew McCormick, et al., filed this action in Maricopa County Superior Court. (Doc. 1-3.) Defendants removed the action. (Doc. 1.) Defendant State of Arizona moves to dismiss the wrongful death claim, and Plaintiffs oppose the Motion. (Docs. 25, 28.) The Court will deny the Motion to Dismiss.[1]

         I. Background

         In their Amended Complaint, Plaintiffs allege as follows. Andrew McCormick died four days after being beaten by prisoners who entered his cell in the Morey Unit of the Arizona State Prison Complex (ASPC)-Lewis. (Doc. 22 at 2.) For at least four years prior to Andrew's death, the State of Arizona knew that the cell door locks on the Morey Unit were broken. (Id.)

         Defendants are: the State of Arizona, Thomas Heathcock, a corrections officer assigned to the control room at the Morey Unit, and Eduardo Cardenas, a corrections officer assigned to the floor at the Morey Unit.

         Plaintiffs allege that as early as 2006, Arizona Department of Corrections (ADC) officials knew prisoners could defeat cell door locks and open their cell doors at will. (Doc. 22 at 4.) In April 2017, a prisoner was murdered when other prisoners defeated their cell door locks and beat the prisoner to death in his cell. (Id. at 6.)

         On June 6, 2018, Heathcock was in the control room assigned to monitor Andrew's pod and knew that at least two prisoners were out of their cells when they should not have been. (Id. at 11, 13.) Heathcock was aware that many of the cell doors were broken and prisoners could leave their cells at will. (Id. at 11.) Cardenas was assigned to be the sole floor officer circulating through four pods in Andrew's building. (Id.) That evening, Morey Unit was short staffed and there was no floor officer dedicated to pod B, where Andrew was housed. (Id. at 12.) Cardenas knew that remaining in motion and conducting security checks was required by ADC policy and that it was the only way to ensure that prisoners remained in their cells, but Cardenas sat in the inmate movement office to review his own personnel file and paycheck on the computer. (Id. at 12.) While Heathcock was on a phone call and Cardenas was in the office, prisoners opened their own cell doors and entered Andrew's cell and took turns beating and stomping him, leading to his death. (Id. at 11-12.)

         In Count One, Plaintiffs allege a Wrongful Death claim against the State of Arizona. (Id.) In Count Two, Plaintiffs allege an Eighth Amendment claim against Heathcock and Cardenas. (Id. at 15.)

         II. Motion to Dismiss

         Defendant State of Arizona argues that Plaintiffs' wrongful death claim fails because the Notice of Claim that was served on the state was not “factually sufficient” and was not timely amended as required by Haab v. County of Maricopa, 191 P.3d 1025 (Ariz.Ct.App. 2008). The State of Arizona argues that Plaintiff's notice was factually deficient because it did not mention Heathcock or Cardenas by name or position and provides no facts suggesting Plaintiffs would allege that the individual officers on duty at the time of Andrew's death were grossly negligent.

         A. Arizona's Notice of Claim Statute

         Persons who have claims against “a public entity or public employee” shall file claims within 180 days after the action accrues. Ariz. Rev. Stat. § 12-821.01(A). “The statute permits an action against a public entity to proceed only if a claimant files a notice of claim that includes (1) facts sufficient to permit the public entity to understand the basis upon which liability is claimed, (2) a specific amount for which the claim can be settled, and (3) the facts supporting the amount claimed. Backus v. State, 203 P.3d 499, 502 (Ariz. 2009) (en banc). “The purpose of the notice of claim statute is to allow the public entity to investigate and assess liability, to permit the possibility of settlement prior to litigation, and to assist the public entity in financial planning and budgeting.” Haab, 191 P.3d at 1028.

         B. Plaintiffs' Notice of Claim

         Plaintiffs' Notice of Claim is dated October 5, 2018 and includes the following facts. “On or around June 6, 2018, Andrew Stephen McCormick was injured while in the custody of [the ADC] at Lewis Complex [and] died seven days later.” (Doc. 28-1 at 1.) Andrew's medical records from the Abrazo West Campus Trauma Center on June 6, 2018 indicated that there was suspicion of assault. (Id.) “ADC conducted an investigation into the cause of Mr. McCormick's death. To date, despite repeated requests, ADC has refused to release the results of the investigation or any information that would indicate the cause of Mr. McCormick's injuries. Our preliminary investigation suggests that ADC failed to ...


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