Fierro v. Smith, No. 19-16786 (9th Cir. 2022)
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In 2011-2013, Fierro made six requests to be placed into protective custody, insisting that he was at risk of harm because he had received threats from the Border Brothers, a gang active throughout Arizona’s prisons. All six requests were denied. Fierro was physically assaulted in the prison yard by two other prisoners, at least one of whom was a suspected member of the Border Brothers. Fierro brought suit, 42 U.S.C. 1983. The district court instructed the jury 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.”
The Ninth Circuit vacated a verdict in favor of the prison officials. The evidence at trial reflected a genuine dispute whether the decisions to deny Fierro’s requests for protective custody were made pursuant to a security-based policy, and, if so, whether the decisions were an unnecessary, unjustified, or exaggerated response to security concerns, so the district court’s deference instruction was erroneous.
Court Description: Prisoner Civil Rights The panel vacated the district court’s judgment entered following a jury verdict in favor of prison officials in an action brought pursuant to 42 U.S.C. § 1983 alleging that defendants failed to protect plaintiff from violence by other prisoners. Between 2011 and 2013, plaintiff made six requests to be placed into protective custody, insisting that he was at risk of harm because he had received threats from the Border * The Honorable Robert S. Lasnik, United States District Judge for the Western District of Washington, sitting by designation. 4 FIERRO V. SMITH Brothers, a gang active throughout Arizona’s prisons. All six times, defendants denied plaintiff’s requests for protective custody. After his sixth request was denied, plaintiff was physically assaulted in the prison yard by two other prisoners, at least one of whom was a suspected member of the Border Brothers. Plaintiff brought suit and after a four-day trial, the district court instructed the jury 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.” The panel held that because the evidence at trial reflected a genuine dispute whether the decisions to deny plaintiff’s requests for protective custody were made pursuant to a security-based policy, and, if so, whether the decisions were an unnecessary, unjustified, or exaggerated response to security concerns, the district court’s deference instruction was erroneous. That error may have affected the verdict. Accordingly, the panel vacated and remanded for a new trial. The panel addressed plaintiff’s challenges to the district court’s pretrial decisions in a concurrently filed memorandum disposition. FIERRO V. SMITH 5
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