Patterson v. State

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE BARBARA PATTERSON, on behalf of herself and as the surviving mother and personal representative of the Estate of AARON PATTERSON, deceased, ) ) ) ) ) ) Plaintiff/Appellant, ) ) v. ) ) STATE OF ARIZONA, a political ) entity; ARIZONA DEPARTMENT OF ) CORRECTIONS, an agency of the ) State of Arizona, ) ) Defendants/Appellees. ) __________________________________) 1 CA-CV 10-0451 DEPARTMENT C DIVISION ONE FILED: 06/14/2011 RUTH A. WILLINGHAM, CLERK BY: DLL MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. CV2006-006788 The Honorable John A. Buttrick, Judge REVERSED AND REMANDED ________________________________________________________________ Robbins & Curtin PLLC By Joel B. Robbins and Anne E. Findling Malanga Law Office By Ralph Malanga Co-Counsel Attorneys for Plaintiff/Appellant Phoenix Bisbee Thomas C. Horne, Attorney General Phoenix By Michele L. Forney, Assistant Attorney General Attorneys for Defendants/Appellees ________________________________________________________________ K E S S L E R, Judge ¶1 Barbara Patterson appeals from the trial court s decision granting summary judgment to the State of Arizona in her negligence claim arising out of the circumstances of her son s suicide while an inmate in the custody of the Arizona Department of Corrections ( ADOC ). The court found that res judicata precluded Patterson s claims in this action after a judgment was entered in a second action she filed against the individual defendants whose conduct was the basis vicarious liability asserted against the State here. that res judicata does not preclude Patterson s of the We find action. We reverse the judgment of the trial court and remand for further proceedings. FACTS AND PROCEDURAL HISTORY ¶2 Aaron Patterson, while an inmate in the custody of the ADOC, committed suicide on May 12, 2005. Patterson, Aaron s mother, filed this action ( Patterson I ) in Maricopa County Superior Court on May 9, 2006, against the State of Arizona, the ADOC, and John and Jane Doe correctional officers and healthcare providers. The complaint alleged that Aaron had a history of mental illness including suicidal tendencies, that during his first year of deterioration, incarceration and that at he the 2 showed time of symptoms the of incident mental he was supposed to be on suicide watch and checked on every thirty minutes. during The complaint contended that he was not checked at all the eighteen hours before his shortly after 8:00 a.m. on May 12. defendants provided Aaron body was discovered at The complaint contended that with inadequate supervision, treatment, and care and were deliberately indifferent to Aaron s need for those services. ¶3 The complaint asserted claims for negligence or gross negligence, and wrongful death. Patterson contended that the defendants breached their duty of care to Aaron by failing to check on him while he was on suicide watch, and that the State was liable for its employees respondeat superior. actions under the doctrine of Patterson also contended that defendants were negligent or grossly negligent for failing to implement appropriate policies inmates, for contact with supervising failing and to mentally those procedures train ill employees. regarding employees inmates, On that and January would for 7, mentally ill come in not properly 2007, Patterson filed an amended complaint, adding as a third count a claim for discrimination under the Arizona Civil Rights Act. ¶4 On May 11, 2007, Patterson filed a second suit, Patterson v. Shaw, CV2007-008436, in Maricopa County Superior Court. The second suit ( Patterson II ) asserted civil rights violations pursuant to 42 U.S.C. 3 § 1983 against various employees of the ADOC in their individual capacities. The complaint alleged in part that more than thirty minutes passed between the time Aaron was first found breathing and nonresponsive and when he was taken to the medical unit where he was found to be in full arrest and thereafter died. The complaint alleged violations of Aaron s rights under the Eighth and Fourteenth Amendments of the U.S. Constitution. On August 2, 2007, the defendants in Patterson II removed that case to federal court. ¶5 On September 22, 2009, the federal district court in Patterson II granted the defendants motion for summary judgment. In a lengthy order, the court described the factual circumstances of Aaron s death, noting that Aaron had a history of mental illness, that at various times during his incarceration he was on suicide watch or mental health watch, and that in the hours before his death he was on mental health watch and was observed accordingly. death, quietly at in about his 6:50 cell, a.m., Aaron breathing showing signs of distress. In the hours before his was and observed resting to be quietly lying and not Later, officers attempted but were unsuccessful in getting Aaron s attention, but still believed he was sleeping. Staff exhausted protocol efforts to get a response from Aaron, such as calling his name, banging on the cell and spraying him with water. 4 Medical staff was called, and staff continued to try to get a response from Aaron. directed to wait for the Deputy extract Aaron from his cell. Warden before Staff was attempting to Staff used a water cannon on Aaron to elicit a response, without success. At 8:36 a.m., staff entered Aaron s cell and removed him, and he was taken to the Health Unit at 8:39 a.m. ¶6 The court He was pronounced dead at 8:43 a.m. noted that to succeed on an Eighth Amendment claim, the plaintiff had to prove that the individual defendant caused acts or omissions sufficiently harmful to show deliberate indifference to serious medical needs and that the deliberate indifference was the legal cause of the violation of the inmate s explained that defendant s defendant Eighth deliberate subjective know of inmate s health. demonstrated testimony Amendment of and indifference viewpoint, disregard was and an The court viewed required excessive further from that risk to the the the The court found that the plaintiff had not deliberate the rights. indifference defendants that in they part because believed of the Aaron was breathing when he was observed and they did not recognize the existence of a medical emergency. judgment in favor of the The court granted summary defendants. Judgment was entered November 3, 2009. ¶7 In this case, the State moved for summary judgment on issue and claim preclusion based on the Patterson II judgment. 5 The State argued that the judgment rendered by the federal court in Patterson II precluded this action. the claims in Patterson I and The State argued that Patterson II were identical because they shared the same nucleus of facts and that the State was in privity with its employees who were the successful defendants in Patterson II. ¶8 Alternatively, the State argued that issue preclusion applied, resulting in the factual issues being resolved in favor of the State. stated that requiring The State noted that the Patterson II judgment Aaron checks had every been placed thirty on minutes, a mental that he health was in watch fact timely checked in the hours before his death and appeared to be quiet and sleeping, that no one observed Aaron placing anything in his mouth or observed any signs that he had been choking or struggling for breath, and the medical examiner determined that the toilet paper Aaron had pushed down his own throat would not have been visible without a tool such as a laryngoscope. State argued that Patterson s claim was that the The State s employees had breached their duty of care to Aaron by failing to check on him during the period preceding discovery of his body at approximately 8:12 a.m. on May 12, 2005, but the District Court judgment found no evidence that anyone had observed Aaron in distress at any time, despite having checked on him. The State also asserted that it enjoyed absolute immunity from any 6 claim that its policies for the treatment and care of mentally ill inmates were inadequate because such policies were enacted as a fundamental governmental policy. ¶9 Patterson argued that she was not precluded from maintaining her state law negligence claim by the federal court decision. She contended that the issue in the federal court case was the violation of constitutional rights, involving a standard of deliberate indifference viewed from the perspective of the defendant; it was not concerned with general negligence as was claimed in Patterson I. that the defendant State, the or privity Patterson II. in defendant She further argued Patterson the with in individual I, was not defendants a in She noted that in its order the federal court distinguished between claims against the individual defendants and those pertaining to policy matters to be addressed against the State. Patterson conceded that the judgment in Patterson II precluded her from proceeding with any claims against the State or its employees based on deliberate indifference or intentional conduct, but maintained that she was not precluded from pursuing claims for ordinary negligence or gross negligence. The court granted the State s motion for summary judgment on the grounds of res judicata, and entered judgment in favor of the State. Patterson timely appealed. 7 DISCUSSION ¶10 Summary judgment may be granted when there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law. 56(c). Ariz. R. Civ. P. In reviewing a motion for summary judgment, we determine de novo whether any genuine issues of material fact exist and whether the trial court properly applied the law. Eller Media Co. v. City of Tucson, 198 Ariz. 127, 130, ¶ 4, 7 P.3d 136, 139 (App. 2000). from those We view the facts and the inferences to be drawn facts in the light most against whom judgment was entered. favorable to the party Prince v. City of Apache Junction, 185 Ariz. 43, 45, 912 P.2d 47, 49 (App. 1996). I. Res Judicata Does Not Bar the Claim. ¶11 Res judicata does not bar Patterson s claim because the State was not in privity with the individual defendants. Because the prior judgment was issued by a federal court, federal law dictates the preclusive effect of that judgment. In re Gen. Adjudication of All Rights to Use Water in Gila River Sys. & Source, 212 Ariz. 64, 69, ¶ 13, 127 P.3d 882, 887 (2006). Res judicata applies when the earlier suit (1) involved the same claim or cause of action as the later suit, (2) reached a final judgment on the merits, and (3) involved identical parties or privies. P.3d 881, 884 Howell v. Hodap, 221 Ariz. 543, 546, ¶ 17, 212 (App. 2009) (quoting 8 Mpoyo v. Litton Electro- Optical Sys., 430 F.3d 985, 987 (9th Cir. 2005)). with respect to claim preclusion is a legal Privity conclusion designating a person so identified in interest with a party to former litigation that he represents precisely the same right in respect to the subject matter involved. In re Schimmels, 127 F.3d 875, 881 (9th Cir. 1997). ¶12 The defendants in Patterson II, although employees of the State, were named in their individual capacities. Federal courts have repeatedly found that government employees sued in federal court in their individual capacities are not in privity with their government employer. See Conner v. Reinhard, 847 F.2d 384, 394-95 (7th Cir. 1988) (prior federal suit against government entity did not preclude suit against entity s officials in their personal capacities because they are not in privity); Headley v. Bacon, 828 F.2d 1272, 1279 (8th Cir. 1987) (holding entity that did individual federal not bar § capacities Title 1983 VII judgment against claim against officials because officials lack government in their privity with government); Willner v. Budig, 848 F.2d 1032, 1034 n.2 (10th Cir. 1988) (same). ¶13 Moreover, the State was not subject to liability in the § 1983 case. It could not have been made liable directly, see Will v. Michigan Dep t of State Police, 491 U.S. 58, 71 (1989) nor could it have been found vicariously liable based on 9 any § 1983 violations by the defendants, see Sanderson, 9 F.3d 1433, 1437-38 (9th Cir. 1993). therefore did not share individual defendants. an identity of interest Palmer v. The State with the Because the State lacked privity with the individual defendants in Patterson II, we find that claim preclusion does not bar the current action. 1 ¶14 The State contends that it is in privity with its officials because they share the relationship of principal and agent, relying (1959). on Spector v. El Ranco, Inc., 263 F.2d 143 Spector, by its terms, applies only when the judgment in favor of one party is rendered in terms equally applicable to both. Id. interests at of 145. each This party outcome of a proceeding. (Minn. 2011) privity). (declining rule will only be applies similarly when the affected legal by the Rucker v. Schmidt, 794 N.W.2d 114, 120 to rely on Spector to establish As we discussed, supra, ¶ 12, the State could not possibly have been liable in Patterson I. Therefore, we reject the State s contention that its agency relationship with its officers creates privity in this context. 1 Patterson also argues that the State had acquiesced in Patterson s filing the second suit by not agreeing to consolidate the two actions and by removing Patterson II to federal court. Because we find that claim preclusion is inapplicable based on lack of privity, we do not address Patterson s acquiescence argument. 10 II. Collateral Estoppel Does Not Completely Bar the Claim. ¶15 The State argues that even if claim preclusion does not apply, summary judgment was properly granted because, under the defensive use of issue preclusion all material issues have been determined by the judgment in Patterson II and the State is therefore entitled to judgment in Patterson I. ¶16 applies Federal based on law determines the federal whether judgment. issue preclusion Maricopa-Stanfield Irrigation & Drainage Dist. v. Robertson, 211 Ariz. 485, 491, ¶ 37, 123 P.3d 1122, 1128 (2005). Under defensive issue preclusion, a defendant attempts to preclude a plaintiff from relitigating an unsuccessfully issue that litigated the against plaintiff another has previously defendant. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n.4 (1979). The party asserting the bar must show that (1) the issue was litigated to a conclusion in a prior action, (2) the issue of fact or law was necessary to the prior judgment, and (3) the party against whom preclusion is raised was a party or privy to a party to the first case. Robertson, 211 Ariz. at 491-92, ¶ 39, 123 P.3d at 1128-29 (citing Allen v. McCurry, 449 U.S. 90, 94-95 (1980)). ¶17 individual The issue before the district court was whether the defendants had violated Aaron s Eighth Amendment right against cruel and unusual punishment and his Fourteenth Amendment right to due process. 11 To show such violations, a plaintiff must demonstrate that the defendants each acted with deliberate indifference to the inmate s medical needs. Gibson v. County of Washoe, Nev., 290 F.3d 1175, 1187 (9th Cir. 2002). The plaintiff must show that the defendants actually knew of and disregarded an excessive risk to the inmate s health and safety. Id. risk. It is not enough that the defendants should have known of a Moreover, the state of mind of the defendant is viewed from the defendant s subjective viewpoint. Farmer v. Brennan, 511 U.S. 825, 837 (1994). ¶18 Deliberate indifference is a more stringent standard than negligence or gross negligence. F.3d 742, 749 (7th Cir. 2006). Borello v. Allison, 446 The negligence negligence of the defendants was not litigated. court did not make any findings or rulings or gross The district regarding negligence or gross negligence of any of the defendants. the The district court in Patterson II concluded that Patterson had not demonstrated that any of the individual defendants had acted with deliberate indifference. violation of either the Consequently, the court found no Eighth Amendment or the Fourteenth Amendment. 2 2 A due process violation requires a showing that the conduct shocks the conscience, which is a higher standard than deliberate indifference. Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008) Having concluded that Patterson failed to demonstrate deliberate indifference, the district court concluded as a matter of law that she failed to show that the 12 ¶19 The demonstrated State that argues Aaron was that the observed district in court accordance case with the mental health watch imposed and that no one observed Aaron in any distress. The court s finding, that the defendants believed Aaron was not in distress, however, was based on the subjective standard of deliberate indifference. It does not establish that the defendants were not negligent in that belief and therefore in their conduct. court recounted district place court did not The State further argues that the district that, had in found violate an earlier that the the Eighth class mental action Amendment. the policies health suit, in Despite the district court s recounting of the earlier ruling, the propriety of the mental health policies in place was not litigated in Patterson II. Patterson individual defendants Amendment rights. Patterson from II violated The pursuing ruling her concerned Aaron s in only Eighth Patterson negligence and II whether and Fourteenth does gross the not bar negligence claims in superior court. conduct complained of shocked the conscious and so failed to show a Fourteenth Amendment violation. 13 CONCLUSION ¶20 For the foregoing reasons, we reverse the judgment of the superior court and remand for further proceedings consistent with this decision. 3 /s/ _________________________________ DONN KESSLER, Judge CONCURRING: /s/ ___________________________________ PATRICIA A. OROZCO, Presiding Judge /s/ _________________________________ MICHAEL J. BROWN, Judge 3 The State has also argued that partial summary judgment would have been proper on the issue of the absolute immunity of its policy making process. While we affirm on any basis supported by the record, we decline to consider this claim because it would not completely dispose of the claim regardless of its merit. 14

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