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Ninth Circuit Revives Failure-to-Protect Claim of Arizona Prisoner Beaten by Gang

by David M. Reutter

On July 5, 2022, the U.S. Court of Appeals for the Ninth Circuit held that giving a jury a standard instruction to defer to prison officials was error when the jury needed to decide whether prison officials failed to protect a prisoner from violence.

Before the Court was the appeal of Arizona prisoner Jose Abel Fierro. While at the Lewis-Rast Unit, a guard told several prisoners to “keep an eye on” Fierro. That led them to infer Fierro was a snitch, and Fierro’s cellmate then accused him of being a “rat.” The two got into a fist fight, during which Fierro accidentally punched the wall and broke his hand.

After the fight, Fierro requested protective custody (PC) from his cellmate, who was a suspected member of the “Border Brothers” gang. But Fierro was not forthcoming in his PC interview, stating only that it was best if he got off the yard. A guard concluded Fierro’s injuries were self-inflicted. A deputy warden recommended an alternative remedy: transferring Fierro to the Cimarron Unit.

Once there, Fierro reported a scuffle with his new cellmate, a suspected Border Brothers leader. Later he reported that other prisoners entered his cell, hit him, and took his legal papers and address book. Fierro again requested PC. That request was denied as unsubstantiated. Fierro was then transferred to the Lewis-Morey Unit.

The day he arrived there, a note was stuck under his cell door that warned him to “leave the yard or get stuck.” A guard documented threats against Fierro. Therefore, it was recommended by the guard and Deputy Warden Douglas Schuster that Fierro be placed in PC. Deputy Warden Marlene Coffey, however, overruled that recommendation, concluding there was no threat against Fierro. He was then transferred to the Dakota Unit, the Kaibab Unit, and the Central Unit after repeated threats and denials of PC.

After a year at Central without incident, Fierro was transferred back to the Cimarron Unit. After another denied request for PC, he was transferred back to the Lewis-Morey Unit. Within fifteen minutes of his arrival, three prisoners, two of whom were suspected Border Brothers members, attacked Fierro, leaving him with a limp and “bumps, bruises, and contusions.”

In a failure-to-protect claim he filed pro se against prison officials in federal court for the District of Arizona, Fierro contended that the attack exacerbated his existing health conditions and caused him months of severe physical and mental suffering.

Deputy Warden Schuster testified at the trial in Fierro’s civil rights lawsuit. He detailed information possessed by prison officials that showed Fierro was the subject of a hit ordered by the Border Brothers and that he needed protection.

The case went to the jury with an instruction to “give deference to prison officials in the adoption and execution of policies and practices that, in their judgment, are needed to preserve discipline and to maintain internal security in a prison.” Fierro objected to the instruction, but his objection was overruled. The jury then found for Defendants. Fierro appealed.

The Ninth Circuit began by finding there was a genuine dispute as to whether the denials of PC were made pursuant to a security-based policy. If proven, that would entitle the decisions of the defendants to be given deference. But the dispute itself mandates the instruction should not have been given, the Court said. Even if their decisions were based upon a “security-based policy, the deference instruction still would have been erroneous because there was a genuine dispute whether [the Defendants’] actions were necessary, justified, and not exaggerated.”

Thus the Court found error with the instruction. It further found the error was not harmless, since “the jury might well have returned a verdict in his favor if not for the deference instruction.” Vacating the district court’s judgment, the Court remanded the case.

At the Court, Fierro was represented by attorneys Jeremy Girton, Meaghan VerGow, and Rachel A. Chung of O’Melveny & Myers LLP in Washington, DC, along with Craig McAllister, of the firm’s New York City office and Melissa C. Cassell from its office in San Francisco. See: Fierro v. Smith, 39 F.4th 640 (9th Cir. 2022).

The case has now returned to the district court, where Fierro was appointed pro bono counsel on August 25, 2022, from Phoenix attorneys Matt Jarvey, James P. Melendres and Patrick A. Tighe of Snell & Wilmer. A trial is set for May 2023, and PLN will update developments as they are available. See: Feirro v. Ryan, USDC (D. Ariz.), Case No. 2:13-cv-02173. 

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