Palmer v. Arizona Department of Corrections

MEMORANDUM *

On September 4, 2008, Timothy L. Luce-ro was stabbed to death by another inmate while in the custody of the Arizona Department of Corrections (“ADC”) at the Arizona State Prison Complex (“ASPC”)-Tucson. Four months before his death, Lucero had been transferred to ASPC-Tucson from Special Management Unit I (“SMU I”), a maximum-custody facility, at ASPC-Eyman. ASPC-Tucson was a lower-security facility. Plaintiffs-Appellees are Lucero’s survivors. Defendant-Appellant Preston Gamblin is a prison official at SMU I.

Gamblin appeals the district court’s denial of his motion for summary judgment on his defense of qualified immunity from plaintiffs’ § 1983 deliberate indifference claim. Plaintiffs assert that Gamblin violated Lucero’s Eighth Amendment rights by failing to initiate the protective-segregation process required under prison policy at SMU I upon learning of threats of mortal harm to Lucero. We affirm.

Under ADC’s protective-segregation policy, known as DI 67, any inmate may make a written or verbal request for protection against other inmates. Such a request triggers a review process to determine whether the inmate requires long-term protective segregation. DI…

dissenting:

I respectfully dissent.

Even taking all facts in the light most favorable to Plaintiffs, a reasonable officer in Gamblin’s circumstances could not have known that it would be deliberate indifference to fail to prevent an attack that occurred months later in a different, less secure facility. Deliberate indifference requires that a prison official “know of and disregard[ ] excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of harm exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 , 114 S.Ct. 1970 , 128 L.Ed.2d 811 (1994).

Here, Lucero was not attacked in the facility in which Gamblin worked. As the majority recognizes, Lucero was housed there safely, in a single cell and with limited contact with other inmates. It is undisputed that Gamblin documented Lucero’s concerns in a report to his supervisor and *668 that Lucero was not harmed at that facility. Rather, Lucero was not attacked until months after his interaction with Gamblin, and only after being transferred to a less secure facility. There is no evidence that Gamblin knew of the…

FILED

NOT FOR PUBLICATION MAY 30 2014

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

GLENDA PALMER, as surviving mother, No. 12-16340 personal representative of the Estate of Timothy Lucero and as Guardian of D.L.; D.C. No. 2:09-cv-01791-JWS D. L., a minor child; LEROY L. LUCERO, Sr., surviving father of Timothy L. Lucero, deceased, MEMORANDUM*

Plaintiffs - Appellees,

v.

ARIZONA DEPARTMENT OF

CORRECTIONS; ARIZONA, STATE

OF; RONALD CARLSON; ROBERT

STEWART,

Defendants,

UNKNOWN CARLSON; UNKNOWN

GAMBLIN; UNKNOWN STEWART,

Defendants,

And

PRESTON GAMBLIN, Corrections officer at ASPC Eyman,

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Defendant - Appellant.

Appeal from the United States District Court for the District of Arizona John W. Sedwick, District Judge, Presiding

Argued and Submitted May 15, 2014 San Francisco, California

Before: GRABER, W. FLETCHER, and PAEZ, Circuit Judges.

On September 4, 2008, Timothy L. Lucero was stabbed to death by…