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Court says state should face lawsuit in care of severely beaten prisoner

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WASHINGTON – A federal appeals court ruled Monday that the state of Arizona must face a lawsuit over the brutal beating of an inmate who suffered “severe, permanent mental impairment” in an attack by two other prisoners.

The ruling by a three-judge panel of the 9th U.S. Circuit Court of Appeals overturned a district court judge’s decision to dismiss the suit. The appeals court held that there was sufficient evidence to question what happened to inmate Philip Anthony Cortez and to bring the case to trial.

“The district court judge said her view was that reasonable people could not think that Officer (Bill) Skol displayed indifference or grossly negligent behavior,” said David Abney, an attorney for Cortez. “It was simply a difference of opinion. The 9th Circuit Court believed otherwise.”

The Arizona Attorney General’s office did not immediately respond to a call seeking comment on the case.

Cortez was an inmate at the Morey Unit of the Lewis Prison Complex in Buckeye on Nov. 16, 2007, when he and two other inmates, Juan Cruz and Steven Lavender, were taken to the prison’s visitation area by two guards. All three were being held in Morey’s detention unit, where inmates who had attacked others or were in danger of attack were separated from the general prison population, the court ruling said.

On the way back from the visitation area, the three were escorted by only one guard, Skol. While walking through an area of the prison known as “no man’s land” – a back-alley dirt path that is not visible to other staff or security cameras – Cruz and Lavender attacked Cortez.

Skol called for backup and ordered Cruz and Lavender to stop, then pepper-sprayed them both, but the two were “unaffected by the spray” and continued kicking and stomping the back of Cortez’s head “as he lay face down and handcuffed on the ground.”

Skol pepper-sprayed Cruz and Lavender three times before backup officers arrived and stopped the beating, about five minutes after the attack began.

According to court documents, other prison officials testified that escorting prisoners one-on-three was “dangerous” and “not recommended.” A deputy warden at Morey also testified that prison policy required upper and lower body restraints, but at the time of the beating neither Cortez, Cruz nor Lavender were wearing leg irons, court documents state.

The attack left Cortez permanently impaired, court documents indicate. He was released from prison due to his injury and died Sept. 6, 2014, from an apparent drug overdose.

His mother, Marty Cortez, sued on his behalf, alleging that Arizona prison officials failed to protect her son, in violation of his Eighth Amendment right against cruel and unusual punishment.

Even though Philip Cortez had a history of drug abuse, attorneys for the family said his death was related to the injuries he sustained during the attack.

“His mental capacity was greatly diminished and that made him susceptible to substance abuse,” said John Leader, one of Cortez’s attorneys.

Abney said Marty Cortez believes her son “was very upset and depressed by what happened to him, and she believes the drug overdose was a result.”

The circuit court ordered the case back to district court for a rehearing. The state has 30 days to file for review by the full 9th Circuit Court or to petition the ruling to the U.S. Supreme Court. If after 30 days the case returns to the Arizona District Court, Marty Cortez’s attorneys will add a wrongful death claim to the case, Leader said.

“It was a disastrous thing that happened to poor Mr. Cortez,” Abney said.