United States District Court, D. Arizona
G. Campbell Senior United States District Judge
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.
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.
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.
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.)
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
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.)
Motion to Dismiss
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.
Arizona's Notice of Claim Statute
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.
Plaintiffs' Notice of Claim
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 ...