The family of Monnie Washburn moved one step closer to holding Arizona prison officials accountable for his preventable heat-related death. On September 10, 2024, the United States Court of Appeals for the Ninth Circuit reversed a district court’s grant of summary judgment in their suit over his fatal 2017 transport from a facility in Kingman to a prison in Tucson.

The temperature in the transport bus was very hot, and during the trip Washburn began “pacing, pulling at his restraints, and asking for water,” as the appellate Court recalled. Other prisoners expressed concern for his health when he started to exhibit symptoms of heat exhaustion—a serious medical condition. During a stop at a gas station, two transport guards with the state Department of Corrections, Rehabilitation and Re-entry (DCRR), Dale A. King and Antonio R. Tuccino, replenished a water cooler and lowered the bus windows. But Washburn’s condition continued to worsen. He became disoriented, suffered a seizure and vomited several times.

King and Tuccino contacted their supervisor, Steven Gallardo, who told them to continue to Tucson and not to initiate the Incident Command System (ICS), which is used by DCRR personnel to request assistance for medical emergencies. Gallardo spoke with a nurse at the Tucson prison regarding Washburn’s condition but neglected to tell her that the prisoner had experienced a seizure. With Washburn by this point unresponsive, the bus continued to Tucson. At some point, he soiled himself, and other prisoners put him on the floor. Although an ICS call was eventually put out, it was too late; Washburn was pronounced dead once the bus arrived at the Tucson facility, six and a half hours after it left Kingman.

Washburn’s widow, Jennifer Power, filed suit in the U.S. District Court for the District of Arizona. It raised Eighth Amendment failure-to-protect and state-law claims against the transport guards and Gallardo, along with DCRR’s private medical contractors Corizon Health (now YesCare) and Correct Care Solutions (now Wellpath). Private prison operator The GEO Group was also named as a Defendant. When the district court granted summary judgment to Defendants, Power appealed. The Ninth Circuit reversed in part and stayed in part.

The appellate Court initially noted that there was no dispute that Washburn had a “serious medical need” that met the objective prong of the test for a valid Eighth Amendment claim. But the subjective prong required evidence that Defendants were “aware of facts from which the inference could be drawn that a substantial risk of serious harm exist[ed]” and had drawn that inference, as held in the landmark failure-to-protect prison case, Farmer v. Brennan, 511 U.S. 825 (1994); also under that precedent, Defendants would not be held liable if they “responded reasonably to the risk, even if the harm ultimately was not averted.”

The Court found that Gallardo was not entitled to summary judgment because he was aware that Washburn’s condition constituted a medical emergency but did not act reasonably in response. “Contrary to Gallardo’s claim and the district court’s conclusion, there is a genuine dispute of material fact as to whether Gallardo was acting on the advice of medical professionals” after he contacted a nurse at the Tucson prison, the Ninth Circuit wrote. Since he had failed to inform the nurse that Washburn suffered a seizure, it “would have been unreasonable for him to act on her half-informed advice.”

The Court also reversed the grant of summary judgment to King and Tuccino, who unlike Gallardo had raised a qualified immunity (QI) defense. Based on the evidence presented—and viewing that evidence in favor of Plaintiff at the summary judgment stage—it was apparent that they had violated Washburn’s clearly established rights, the Court decided. Tucson was still two and a half hours away at the time of his heat-related distress. Given the prisoner’s obvious symptoms, “any reasonable officer” would have known “that proceeding to Tucson…presented an intolerable risk to Washburn’s safety,” the Court continued. Thus, QI did not apply. Although no other caselaw was directly on point, this was an “obvious case” in which “Eighth Amendment standards alone were sufficient to put King and Tuccino on notice their behavior was unconstitutional.”

Power also sought reversal of the summary judgment order in favor of Corizon Health. However, as PLN reported, the company has filed for Chapter 11 bankruptcy protection, and the automatic stay entered by the bankruptcy court was still in effect. [See: PLN, Nov. 2024, p.29.] Therefore, this and all other proceedings against Corizon remained stayed. See: Power v. Arizona 2024 U.S. App. LEXIS 22951 (9th Cir.).

The case has now returned to the district court, where trial is currently set to begin on May 6, 2025, and PLN will share updates on the case as they are available. Power is represented in her suit by attorneys Anne E. Findling, Joel B. Robbins, Jesse M. Showalter and Lauren E. Channell of Robbins Curtin Millea & Showalter PLLC in Phoenix. See: Power v. Arizona, USDC (D. Ariz.), Case No. 2:19-cv-01546.  

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