Opinion
No. 1 CA-CV 18-0104
03-05-2019
RICHARD WRIGHT, Plaintiff/Appellant, v. STATE OF ARIZONA, Defendant/Appellee.
COUNSEL Robbins & Curtin, PLLC, Phoenix By Joel B. Robbins, Anne E. Findling Tolman Law Firm By J. Robert Tolman Lloyd Law Group, PLLC, Payson By Arthur E. Lloyd Co-Counsel for Plaintiff/Appellant Arizona Attorney General's Office, Phoenix By Neil Singh, Lisa M. Hemann Counsel for Defendant/Appellee
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Appeal from the Superior Court in Maricopa County
No. CV2013-004966
The Honorable Lori Horn Bustamante, Judge
AFFIRMED
COUNSEL
Robbins & Curtin, PLLC, Phoenix
By Joel B. Robbins, Anne E. Findling
Tolman Law Firm
By J. Robert Tolman
Lloyd Law Group, PLLC, Payson
By Arthur E. Lloyd
Co-Counsel for Plaintiff/Appellant
Arizona Attorney General's Office, Phoenix
By Neil Singh, Lisa M. Hemann
Counsel for Defendant/Appellee
MEMORANDUM DECISION
Judge Kent E. Cattani delivered the decision of the Court, in which Presiding Judge David D. Weinzweig and Chief Judge Samuel A. Thumma joined.
CATTANI, Judge:
¶1 Richard Wright appeals from the superior court's entry of summary judgment in favor of the State of Arizona and Charles Ryan, the Director of the Arizona Department of Corrections ("ADC"). For reasons that follow, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Wright was an inmate at the Tucson Penitentiary when he was brutally assaulted by his cellmate, Shane Lake. Wright was scheduled to be released from prison just days after the attack, having served a 20-year sentence for second degree murder.
¶3 Several weeks before the attack, Wright asked to be placed in protective custody because he feared retaliation by a gang for an in-prison drug debt he could not pay. ADC agreed to Wright's request and placed him in the Complex Detention Unit ("CDU"). Lake was Wright's assigned cellmate in CDU.
¶4 Lake was serving time for attempted murder and aggravated assault. On February 7, 2012, ADC denied Lake's request for protective custody. That evening in their shared cell, Lake violently attacked Wright, causing serious and permanent brain damage.
¶5 Wright sued the State and Ryan (collectively, the "State"), alleging gross negligence. Specifically, Wright claimed the State "knew or had reason to know that they were placing [him] in circumstances creating an unreasonable risk of bodily harm with a high probability that substantial harm would result."
¶6 After the close of discovery, the State moved for summary judgment, and the superior court granted the motion on the basis that Wright had failed to present evidence of gross negligence. Wright then moved for a new trial arguing that the State had failed to disclose relevant
prison documents (post orders) and that genuine issues of fact precluded summary judgment. The court denied the motion, and Wright timely appealed. We have jurisdiction under Arizona Revised Statutes ("A.R.S.") § 12-2101(A)(1), (5)(a).
DISCUSSION
¶7 Summary judgment is appropriate if the moving party establishes that "there is no genuine dispute as to any material fact" and the party is entitled to judgment as a matter of law. Ariz. R. Civ. P. 56(a). Summary judgment should be granted if "the facts produced in support of the claim or defense have so little probative value, given the quantum of evidence required, that reasonable people could not agree with the conclusion advanced by the proponent of the claim or defense." Orme Sch. v. Reeves, 166 Ariz. 301, 309 (1990). We review the entry of summary judgment de novo, determining whether there were any genuine issues of material fact precluding summary judgment and whether the trial court erred in applying the law. Bothell v. Two Point Acres, Inc., 192 Ariz. 313, 316, ¶ 8 (App. 1998).
I. Gross Negligence.
¶8 Wright argues that the superior court erred in granting summary judgment because "[a] jury should decide whether the State was grossly negligent in placing [Wright] in a cell" with Lake.
¶9 By statute, the State is not liable for "[a]n injury caused by a prisoner to any other prisoner" unless ADC or one of its employees "intended to cause injury or was grossly negligent." A.R.S. § 12-820.02(A)(4). Wright did not allege that the State acted intentionally. Accordingly, notwithstanding Wright's grievous injuries, to prevent summary judgment for the State, he had to present facts sufficient to support a finding or reasonable inference that ADC's acts or omissions were grossly negligent. See Badia v. City of Casa Grande, 195 Ariz. 349, 356, ¶ 26 (App. 1999). Although the issue of whether a defendant acted with gross negligence generally involves questions of fact, summary judgment is appropriate if the record contains "no evidence . . . that would lead a reasonable person to find gross negligence." Walls v. Ariz. Dep't of Pub. Safety, 170 Ariz. 591, 595 (App. 1991). For a court to send the issue of gross negligence to a jury, the evidence "must be more than slight and may not border on conjecture." Id.
¶10 To establish negligence, a plaintiff must prove "(1) a duty requiring the defendant to conform to a certain standard of care; (2) a breach
by the defendant of that standard; (3) a causal connection between the defendant's conduct and the resulting injury; and (4) actual damages." Gipson v. Kasey, 214 Ariz. 141, 143, ¶ 9 (2007). To establish gross (or "wanton") negligence, a plaintiff must also show that the defendant
acts or fails to act when he knows or has reason to know facts which would lead a reasonable person to realize that his conduct not only creates an unreasonable risk of bodily harm to others but also involves a high probability that substantial harm will result.
Walls, 170 Ariz. at 595; see also Williams v. Thude, 188 Ariz. 257, 259 (1997) (explaining that gross negligence and wanton conduct are "treated as one and the same"). Requiring something more than simply a high degree of ordinary negligence, gross negligence "is highly potent, and when it is present it fairly proclaims itself in no uncertain terms. . . . It is flagrant and evinces a lawless and destructive spirit." Scott v. Scott, 75 Ariz. 116, 122 (1953).
¶11 Wright argues that genuine issues of material fact precluded summary judgment, citing in particular opinion testimony from a defense expert who asserted that ADC inappropriately classified Wright and Lake. At his deposition, the expert testified that Wright should have had a minimum-custody classification and Lake a maximum-custody classification. But the expert did not support his conclusion with any specific facts regarding Wright's criminal background, and the expert in fact incorrectly described Wright's 1992 crime as "vehicular manslaughter," rather than second-degree murder. Because the expert provided a conclusory opinion that Wright should have had a different classification level (minimum custody) without explaining why, the expert's opinion did not create a triable issue of fact. See Badia, 195 Ariz. at 357, ¶ 30 ("Expert opinions, without more, do not necessarily render a plaintiff's allegations of gross negligence triable issues of fact.").
¶12 Wright also contends that ADC failed to "compare the compatibility of the two inmates," and instead simply "compar[ed] numbers" when assigning the men to the same cell. But ADC followed its housing policy, which includes consideration of the assigned Custody Level (minimum, medium, close and maximum) and the assigned Internal Risk Level (1-5). Wright and Lake were both classified as "close custody," and their internal risk scores were only one point apart. Thus, their housing assignment satisfied Inmate Regulations, and Wright cites no authority for the proposition that ADC's procedure is inadequate. Moreover, Wright
presented no evidence of facts that would have caused ADC to know that by assigning Wright and Lake to the same cell, (1) Wright faced an unreasonable risk of bodily harm and (2) there was a high probability that substantial harm would result. Thus, Wright has not established that ADC was grossly negligent by assigning him and Lake to one cell.
¶13 Next, Wright argues that ADC was grossly negligent by permitting race-based gangs, such as the gang involved here, to run the prison yards. Wright contends that, absent ADC's gross negligence in controlling the prison yard, he would not have sought protective custody. But this allegation is based on conjecture and is insufficient to establish that ADC knew or should have known that housing Wright and Lake together created an unreasonable risk of bodily harm to Wright.
¶14 Finally, Wright argues that ADC's decision to permit Lake to remain in the cell after Lake's request for protective custody was denied was "a wanton breach of the Department's duty of care to Wright." Wright claims ADC knew Lake was agitated because correction officers making rounds heard Lake and Wright arguing the day of the attack, and knew Lake had threatened to injure other inmates. But that evidence, even assuming its truth, does not provide a basis from which to infer that ADC knew or had reason to know that Lake would violently assault Wright. Lake's "threat" was a general comment about his perceived need to defend himself if eventually returned to general population, not a threat to hurt someone in protective custody, much less a specific threat directed at Wright. Moreover, the record reflects that the two men lived together for 12 days before the attack. There is no evidence that Lake ever threatened Wright, or that Wright complained about Lake or mentioned that he was fearful of attack by Lake. To the contrary, Wright wrote a letter to his attorney asking him to assist Lake in obtaining protective custody.
¶15 Accordingly, the superior court properly concluded that Wright had failed to present the required quantum of evidence to establish the State was grossly negligent in placing Wright in a cell with Lake.
II. Disclosure of Post Orders.
¶16 Post orders are ADC documents that include a "description of all responsibilities, duties, and functions of a particular post/work assignment," and set forth "specific procedures for carrying out activities." ADC's Inmate Regulations provide for the development of post orders to address housing assignments.
¶17 Wright argues this court should reverse the entry of summary judgment because the superior court "erred in refusing to order [ADC] to disclose relevant Post Orders, which Wright asserts should have been disclosed under Rule 26.1," or "in response to direct discovery requests on the topic." Wright claims that these documents "would confirm and corroborate [ADC's] knowledge of the risk associated with placing an inmate such as Lake in a cell with Wright."
¶18 If Wright was unable to defend against the State's motion for summary judgment without the alleged post orders, he could have requested a continuance under Rule 56(d), but he did not do so. Rule 56(d) allows a party that believes it lacks evidence "essential to justify its opposition" to a motion for summary judgment to request a continuance and additional discovery to secure such evidence. See Ariz. R. Civ. P. 56(d) & cmt. (noting that the 2017 amendments moved former subsection (f) to subsection (d)). The request must include a supporting affidavit "establishing specific and adequate grounds for the request," as well as a description of the evidence, its location, what the party believes the evidence will show, the proposed discovery method, and an estimate of the time needed to complete discovery. Ariz. R. Civ. P. 56(d)(1)(A). The party filing such a request must also certify that it consulted with the opposing party to address the requested discovery in compliance with Rule 7.1(h). See Ariz. R. Civ. P. 56(d)(1)(B); see also Ariz. R. Civ. P. 7.1(h) (requiring the attachment of a statement "certifying and demonstrating that the movant has tried in good faith to resolve the issue" by conferring with the other party).
¶19 Absent a Rule 56(d) request, the superior court "does not err in proceeding to rule on a motion for summary judgment." Wells Fargo Credit Corp. v. Smith, 166 Ariz. 489, 493 (App. 1990). Because Wright failed to request a Rule 56(d) continuance, he "in effect conceded that he had sufficient facts to withstand the motion for summary judgment." Heuisler v. Phoenix Newspapers, Inc., 168 Ariz. 278, 282 (App. 1991). Thus, he may not now argue that summary judgment was entered prematurely. See Best v. Edwards, 217 Ariz. 497, 504, ¶ 30 (App. 2008).
¶20 Instead of moving for relief under Rule 56(d), Wright filed a motion for new trial after entry of summary judgment arguing the State committed a "four-year disclosure violation" and that the superior court should grant a new trial "[u]ntil this discovery and disclosure issue is resolved." We review the superior court's denial of this motion for new trial for an abuse of discretion. See Spring v. Bradford, 243 Ariz. 167, 170, ¶ 11 (2017). And given Wright's failure to move for relief pursuant to Rule
56(d) or to file a motion to compel earlier in the proceedings, see Ariz. R. Civ. P. 37(a), the superior court did not abuse its discretion by denying Wright's motion for new trial.
CONCLUSION
¶21 For the foregoing reasons, we affirm the entry of summary judgment. We award costs to the State as the prevailing party on appeal upon compliance with ARCAP 21.