1 KAB 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Steven McCormick, et al., No. CV 19-04425-PHX-DGC (MHB) 10 Plaintiffs, 11 v. ORDER 12 State of Arizona, et al., 13 Defendants.
14 15 Plaintiff Steven McCormick, the father of Andrew McCormick, and Jody 16 McCormick, on her own behalf and as personal representative of the Estate of Andrew 17 McCormick, et al., filed this action in Maricopa County Superior Court. (Doc. 1-3.) 18 Defendants removed the action. (Doc. 1.) Defendant State of Arizona moves to dismiss 19 the wrongful death claim, and Plaintiffs oppose the Motion. (Docs. 25, 28.) The Court 20 will deny the Motion to Dismiss.1 21 I. Background 22 In their Amended Complaint, Plaintiffs allege as follows. Andrew McCormick died 23 four days after being beaten by prisoners who entered his cell in the Morey Unit of the 24 Arizona State Prison Complex (ASPC)-Lewis. (Doc. 22 at 2.) For at least four years prior 25 26
27 1 Defendants filed another Motion to Dismiss (Doc. 13) before Plaintiffs filed their 28 Amended Complaint. Because that motion seeks to dismiss claims in a complaint that is no longer operative, it will be denied as moot. 1 to Andrew’s death, the State of Arizona knew that the cell door locks on the Morey Unit 2 were broken. (Id.) 3 Defendants are: the State of Arizona, Thomas Heathcock, a corrections officer 4 assigned to the control room at the Morey Unit, and Eduardo Cardenas, a corrections 5 officer assigned to the floor at the Morey Unit. 6 Plaintiffs allege that as early as 2006, Arizona Department of Corrections (ADC) 7 officials knew prisoners could defeat cell door locks and open their cell doors at will. (Doc. 8 22 at 4.) In April 2017, a prisoner was murdered when other prisoners defeated their cell 9 door locks and beat the prisoner to death in his cell. (Id. at 6.) 10 On June 6, 2018, Heathcock was in the control room assigned to monitor Andrew’s 11 pod and knew that at least two prisoners were out of their cells when they should not have 12 been. (Id. at 11, 13.) Heathcock was aware that many of the cell doors were broken and 13 prisoners could leave their cells at will. (Id. at 11.) Cardenas was assigned to be the sole 14 floor officer circulating through four pods in Andrew’s building. (Id.) That evening, 15 Morey Unit was short staffed and there was no floor officer dedicated to pod B, where 16 Andrew was housed. (Id. at 12.) Cardenas knew that remaining in motion and conducting 17 security checks was required by ADC policy and that it was the only way to ensure that 18 prisoners remained in their cells, but Cardenas sat in the inmate movement office to review 19 his own personnel file and paycheck on the computer. (Id. at 12.) While Heathcock was 20 on a phone call and Cardenas was in the office, prisoners opened their own cell doors and 21 entered Andrew’s cell and took turns beating and stomping him, leading to his death. (Id. 22 at 11-12.) 23 In Count One, Plaintiffs allege a Wrongful Death claim against the State of Arizona. 24 (Id.) In Count Two, Plaintiffs allege an Eighth Amendment claim against Heathcock and 25 Cardenas. (Id. at 15.) 26 II. Motion to Dismiss 27 Defendant State of Arizona argues that Plaintiffs’ wrongful death claim fails 28 because the Notice of Claim that was served on the state was not “factually sufficient” and 1 was not timely amended as required by Haab v. County of Maricopa, 191 P. 3d 1025 (Ariz. 2 Ct. App. 2008). The State of Arizona argues that Plaintiff’s notice was factually deficient 3 because it did not mention Heathcock or Cardenas by name or position and provides no 4 facts suggesting Plaintiffs would allege that the individual officers on duty at the time of 5 Andrew’s death were grossly negligent. 6 A. Arizona’s Notice of Claim Statute 7 Persons who have claims against “a public entity or public employee” shall file 8 claims within 180 days after the action accrues. Ariz. Rev. Stat. § 12-821.01(A). “The 9 statute permits an action against a public entity to proceed only if a claimant files a notice 10 of claim that includes (1) facts sufficient to permit the public entity to understand the basis 11 upon which liability is claimed, (2) a specific amount for which the claim can be settled, 12 and (3) the facts supporting the amount claimed. Backus v. State, 203 P.3d 499, 502 (Ariz. 13 2009) (en banc). “The purpose of the notice of claim statute is to allow the public entity to 14 investigate and assess liability, to permit the possibility of settlement prior to litigation, and 15 to assist the public entity in financial planning and budgeting.” Haab, 191 P. 3d at 1028. 16 B. Plaintiffs’ Notice of Claim 17 Plaintiffs’ Notice of Claim is dated October 5, 2018 and includes the following facts. 18 “On or around June 6, 2018, Andrew Stephen McCormick was injured while in the custody 19 of [the ADC] at Lewis Complex [and] died seven days later.” (Doc. 28-1 at 1.) Andrew’s 20 medical records from the Abrazo West Campus Trauma Center on June 6, 2018 indicated 21 that there was suspicion of assault. (Id.) “ADC conducted an investigation into the cause 22 of Mr. McCormick’s death. To date, despite repeated requests, ADC has refused to release 23 the results of the investigation or any information that would indicate the cause of Mr. 24 McCormick’s injuries. Our preliminary investigation suggests that ADC failed to protect 25 Mr. McCormick from an assault by other inmates.” (Id. at 2.) “Stephen P. McCormick 26 and JoEllen McCormick intend to pursue damages for wrongful death of their son.” (Id.) 27 / / / 28 / / / 1 C. Discussion 2 Defendant argues that the Notice of Claim did not contain “facts sufficient to permit 3 the public entity to understand the basis upon which liability is claimed.” This contention 4 is entirely without merit and unsupported by the record. The Notice of Claim provided 5 Andrew’s full name, the prison facility in which he was housed, the date on which he 6 sustained his injuries, the hospital that he was sent to, the hospital’s conclusion that there 7 was a suspected assault, the supposition that the ADC failed to protect Andrew from an 8 assault by other inmates, and the fact that Plaintiffs intended to sue for wrongful death. 9 This information was more than enough for Defendant to “understand the basis upon which 10 liability is claimed” and satisfies the policy concerns behind the Notice of Claim Statute. 11 Further, it is disingenuous for Defendant to argue that Plaintiff would have to include facts 12 that were solely in Defendant’s possession and which Defendant apparently refused to 13 disclose.2 14 In analyzing the portion of the Notice of Claim statute that requires a Plaintiff to 15 include facts supporting the amount claimed, the Arizona Supreme Court has noted that 16 “[t]he combination of the relatively short time within which a claimant must file a notice 17 of claim and bring a civil action, coupled with a claimant’s lack of knowledge about what 18 facts a public entity will regard as sufficient in a particular case, results in the distinct 19 possibility that a claimant will lose the right to bring an action against a public entity, even 20 when his claim is justified. . . . Because the legislature intended that liability of public 21 entities be the rule and immunity the exception, it could not have intended to erect this 22 significant and unpredictable obstacle to claimants’ actions against public entities.” 23 24 2 The Haab case, which Defendant cites to support its position, is inapposite.
Free access — add to your briefcase to read the full text and ask questions with AI
1 KAB 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Steven McCormick, et al., No. CV 19-04425-PHX-DGC (MHB) 10 Plaintiffs, 11 v. ORDER 12 State of Arizona, et al., 13 Defendants.
14 15 Plaintiff Steven McCormick, the father of Andrew McCormick, and Jody 16 McCormick, on her own behalf and as personal representative of the Estate of Andrew 17 McCormick, et al., filed this action in Maricopa County Superior Court. (Doc. 1-3.) 18 Defendants removed the action. (Doc. 1.) Defendant State of Arizona moves to dismiss 19 the wrongful death claim, and Plaintiffs oppose the Motion. (Docs. 25, 28.) The Court 20 will deny the Motion to Dismiss.1 21 I. Background 22 In their Amended Complaint, Plaintiffs allege as follows. Andrew McCormick died 23 four days after being beaten by prisoners who entered his cell in the Morey Unit of the 24 Arizona State Prison Complex (ASPC)-Lewis. (Doc. 22 at 2.) For at least four years prior 25 26
27 1 Defendants filed another Motion to Dismiss (Doc. 13) before Plaintiffs filed their 28 Amended Complaint. Because that motion seeks to dismiss claims in a complaint that is no longer operative, it will be denied as moot. 1 to Andrew’s death, the State of Arizona knew that the cell door locks on the Morey Unit 2 were broken. (Id.) 3 Defendants are: the State of Arizona, Thomas Heathcock, a corrections officer 4 assigned to the control room at the Morey Unit, and Eduardo Cardenas, a corrections 5 officer assigned to the floor at the Morey Unit. 6 Plaintiffs allege that as early as 2006, Arizona Department of Corrections (ADC) 7 officials knew prisoners could defeat cell door locks and open their cell doors at will. (Doc. 8 22 at 4.) In April 2017, a prisoner was murdered when other prisoners defeated their cell 9 door locks and beat the prisoner to death in his cell. (Id. at 6.) 10 On June 6, 2018, Heathcock was in the control room assigned to monitor Andrew’s 11 pod and knew that at least two prisoners were out of their cells when they should not have 12 been. (Id. at 11, 13.) Heathcock was aware that many of the cell doors were broken and 13 prisoners could leave their cells at will. (Id. at 11.) Cardenas was assigned to be the sole 14 floor officer circulating through four pods in Andrew’s building. (Id.) That evening, 15 Morey Unit was short staffed and there was no floor officer dedicated to pod B, where 16 Andrew was housed. (Id. at 12.) Cardenas knew that remaining in motion and conducting 17 security checks was required by ADC policy and that it was the only way to ensure that 18 prisoners remained in their cells, but Cardenas sat in the inmate movement office to review 19 his own personnel file and paycheck on the computer. (Id. at 12.) While Heathcock was 20 on a phone call and Cardenas was in the office, prisoners opened their own cell doors and 21 entered Andrew’s cell and took turns beating and stomping him, leading to his death. (Id. 22 at 11-12.) 23 In Count One, Plaintiffs allege a Wrongful Death claim against the State of Arizona. 24 (Id.) In Count Two, Plaintiffs allege an Eighth Amendment claim against Heathcock and 25 Cardenas. (Id. at 15.) 26 II. Motion to Dismiss 27 Defendant State of Arizona argues that Plaintiffs’ wrongful death claim fails 28 because the Notice of Claim that was served on the state was not “factually sufficient” and 1 was not timely amended as required by Haab v. County of Maricopa, 191 P. 3d 1025 (Ariz. 2 Ct. App. 2008). The State of Arizona argues that Plaintiff’s notice was factually deficient 3 because it did not mention Heathcock or Cardenas by name or position and provides no 4 facts suggesting Plaintiffs would allege that the individual officers on duty at the time of 5 Andrew’s death were grossly negligent. 6 A. Arizona’s Notice of Claim Statute 7 Persons who have claims against “a public entity or public employee” shall file 8 claims within 180 days after the action accrues. Ariz. Rev. Stat. § 12-821.01(A). “The 9 statute permits an action against a public entity to proceed only if a claimant files a notice 10 of claim that includes (1) facts sufficient to permit the public entity to understand the basis 11 upon which liability is claimed, (2) a specific amount for which the claim can be settled, 12 and (3) the facts supporting the amount claimed. Backus v. State, 203 P.3d 499, 502 (Ariz. 13 2009) (en banc). “The purpose of the notice of claim statute is to allow the public entity to 14 investigate and assess liability, to permit the possibility of settlement prior to litigation, and 15 to assist the public entity in financial planning and budgeting.” Haab, 191 P. 3d at 1028. 16 B. Plaintiffs’ Notice of Claim 17 Plaintiffs’ Notice of Claim is dated October 5, 2018 and includes the following facts. 18 “On or around June 6, 2018, Andrew Stephen McCormick was injured while in the custody 19 of [the ADC] at Lewis Complex [and] died seven days later.” (Doc. 28-1 at 1.) Andrew’s 20 medical records from the Abrazo West Campus Trauma Center on June 6, 2018 indicated 21 that there was suspicion of assault. (Id.) “ADC conducted an investigation into the cause 22 of Mr. McCormick’s death. To date, despite repeated requests, ADC has refused to release 23 the results of the investigation or any information that would indicate the cause of Mr. 24 McCormick’s injuries. Our preliminary investigation suggests that ADC failed to protect 25 Mr. McCormick from an assault by other inmates.” (Id. at 2.) “Stephen P. McCormick 26 and JoEllen McCormick intend to pursue damages for wrongful death of their son.” (Id.) 27 / / / 28 / / / 1 C. Discussion 2 Defendant argues that the Notice of Claim did not contain “facts sufficient to permit 3 the public entity to understand the basis upon which liability is claimed.” This contention 4 is entirely without merit and unsupported by the record. The Notice of Claim provided 5 Andrew’s full name, the prison facility in which he was housed, the date on which he 6 sustained his injuries, the hospital that he was sent to, the hospital’s conclusion that there 7 was a suspected assault, the supposition that the ADC failed to protect Andrew from an 8 assault by other inmates, and the fact that Plaintiffs intended to sue for wrongful death. 9 This information was more than enough for Defendant to “understand the basis upon which 10 liability is claimed” and satisfies the policy concerns behind the Notice of Claim Statute. 11 Further, it is disingenuous for Defendant to argue that Plaintiff would have to include facts 12 that were solely in Defendant’s possession and which Defendant apparently refused to 13 disclose.2 14 In analyzing the portion of the Notice of Claim statute that requires a Plaintiff to 15 include facts supporting the amount claimed, the Arizona Supreme Court has noted that 16 “[t]he combination of the relatively short time within which a claimant must file a notice 17 of claim and bring a civil action, coupled with a claimant’s lack of knowledge about what 18 facts a public entity will regard as sufficient in a particular case, results in the distinct 19 possibility that a claimant will lose the right to bring an action against a public entity, even 20 when his claim is justified. . . . Because the legislature intended that liability of public 21 entities be the rule and immunity the exception, it could not have intended to erect this 22 significant and unpredictable obstacle to claimants’ actions against public entities.” 23 24 2 The Haab case, which Defendant cites to support its position, is inapposite. Haab 25 held that if a party intends to bring additional claims about actions that occurred after the initial incident, based on a different set of facts, the plaintiff must amend the Notice of 26 Claim to include facts supporting the new claims. 191 P.3d 1028-31. Here, Plaintiffs’ 27 notice included facts regarding the incident that is now the subject of their wrongful death claim. The mere fact that Plaintiffs subsequently discovered additional facts relating to the 28 same incident did not give rise to a duty to amend their Notice of Claim, and, contrary to Defendant’s argument, Haab did not make any such holding. Backus, 203 P.3d at 504. The Court held that a claimant need not “provide an exhaustive 2| list of facts; as long as a claimant provides facts to support the amount claimed, he has complied with the supporting-facts requirement of the statute.” [d. at 505. The Court went 4! on to note that ‘‘a public entity can request more facts if needed to evaluate a claim.” Jd. at505. Although the Arizona Supreme Court was addressing the facts necessary to support 6 | the amount claimed, all of the reasoning in the opinion applies equally to the portion of the statute that requires disclosure of facts sufficient to permit the public entity to understand 8 | the basis upon which liability is claimed. 9 It follows, then, that as long as the “facts are sufficient to permit the public entity to 10 | understand the basis upon which liability is claimed,” a Plaintiff satisfies the Notice of 11 | Claim statute. There is no portion of the Notice of Claim statute or controlling case law 12 | that requires Plaintiffs to list the name of all officers involved in a particular incident, and 13 | the Court will not read additional requirements into the statute. As discussed above, the 14| Notice of Claim was specific about the basis upon which liability was claimed, the 15 | remaining facts surrounding the incident were in Defendant’s possession, and, as the Backus Court pointed out, if Defendant needed more facts to evaluate the claim it could 17 | have requested such information. 18 IT IS ORDERED: 19 (1) The reference to the Magistrate Judge is withdrawn as to Defendants State 20 | of Arizona, Ryan, Larson, Ramos, and Holland’s Motion to Dismiss Complaint (Doc. 13) 21 | and Defendant State of Arizona’s Renewed Motion to Dismiss (Doc. 25). 22 (2) Defendants State of Arizona, Ryan, Larson, Ramos, and Holland’s Motion 23 | to Dismiss Complaint (Doc. 13) is denied as moot. 24 (3) Defendant State of Arizona’s Renewed Motion to Dismiss (Doc. 25) is 25 | denied. 26 Dated this 13th day of November, 20{9. Yaucl 6 Cou David G. Campbell Senior United States District Judge