                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


CHRISTINE KILRAIN, individually and on behalf of the estate of DUFFY
               LEE KILRAIN, Plaintiff/Appellant,

                                        v.

  STATE OF ARIZONA; THOMAS RICHARDSON, correctional officer
   ASPC-Eyman facility; CHARLES MOREHEAD, correctional officer,
            ASPC-Eyman facility, Defendants/Appellees.

                             No. 1 CA-CV 13-0447
                              FILED 10-07-2014


           Appeal from the Superior Court in Maricopa County
                          No. CV2009-022457
               The Honorable John Christian Rea, Judge

                                  AFFIRMED


                                   COUNSEL

Law Office of Gary Lassen, PLC, Mesa
By Gary L. Lassen
Counsel for Plaintiff/Appellant

Arizona Attorney General’s Office, Phoenix
By Michael E. Gottfried
Counsel for Defendants/Appellees
                         KILRAIN v. ADOC, et al.
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Andrew W. Gould delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Samuel A. Thumma
joined.


G O U L D, Judge:

¶1            Christine Kilrain (“Plaintiff”) appeals from the court’s grant
of summary judgment in favor of the State of Arizona, Thomas
Richardson, and Charles Morehead (“Defendants”). For the reasons that
follow, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2            On October 20, 2008, Arizona Department of Corrections
(“ADOC”) Officers Richardson and Morehead were assigned to adjoining
dayrooms in Housing Unit 8 of Meadows Unit, a general population yard,
at the Arizona State Prison Complex-Eyman.               During their shift,
Richardson asked Morehead if he would watch his section of the housing
unit so Richardson could get a haircut from the yard barber. Morehead
agreed. During Richardson’s absence, which lasted approximately 30
minutes, Morehead conducted both his and Richardson’s security checks
for both housing units. After doing so, Morehead left the housing unit
and went to the adjoining control room to check an inmate’s visitation
request. While Morehead was in the control room, Duffy Kilrain
(‘Kilrain”) was assaulted. Kilrain later died of his injuries.

¶3             Acting individually and on behalf of Kilrain’s estate,
Plaintiff, Kilrain’s surviving spouse, sued Richardson, Morehead, ADOC,
the State of Arizona, and a number of other defendants who are no longer
parties to this lawsuit. The complaint sought damages for negligence,
gross-negligence, civil rights violations under 42 United States Code
(“U.S.C.”) § 1983, and loss of consortium. Plaintiff’s negligence and loss of
consortium claims were later dismissed.

¶4           The parties eventually filed cross-motions for summary
judgment. The court found Plaintiff had proffered no admissible evidence
to support her claims or controvert Defendants’ evidence and,
accordingly, granted Defendants’ motion for summary judgment. After



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                          KILRAIN v. ADOC, et al.
                            Decision of the Court

the court signed a judgment dismissing Plaintiff’s case, Plaintiff filed a
motion for new trial. The court denied Plaintiff’s motion for new trial,
and she timely appealed.

                               DISCUSSION

I.     Standard of Review

¶5            A court “shall grant summary judgment if the moving party
shows that there is no genuine dispute as to any material fact and the
moving party is entitled to judgment as a matter of law.” Ariz. R. Civ. P.
56(a). On appeal from a grant of summary judgment, we review the
court’s determination de novo. Badia v. City of Casa Grande, 195 Ariz. 349,
351, ¶ 11, 988 P.2d 134, 137 (App. 1999). “Because summary judgment
was granted in favor of [Defendants], we must view the facts in the light
most favorable to [Plaintiff].” Walls v. Ariz. Dep’t of Pub. Safety, 170 Ariz.
591, 596, 826 P.2d 1217, 1222 (App. 1991).

II.    Gross Negligence

¶6            A public entity or a public employee is not subject to liability
for an “injury caused by a prisoner to any other prisoner” absent a
showing of gross negligence. Ariz. Rev. Stat. (“A.R.S.”) § 12-820.02(A)(4)
(2014). “Whether gross negligence exists is generally a fact question for
the jury, but it may be resolved on summary judgment if ‘no evidence is
introduced that would lead a reasonable person to find gross negligence.’”
Badia, 195 Ariz. at 356, ¶ 27, 988 P.2d at 141 (quoting Walls, 170 Ariz. at
595, 826 P.2d at 1221).

¶7             A party is grossly negligent “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, 826 P.2d at 1221 (citations omitted). Gross negligence
involves a risk of harm that is “substantially in excess of that necessary to
make the conduct negligent.” Townsend v. Whatton, 21 Ariz. App. 556, 560,
521 P.2d 1014, 1018 (1974). Thus, “[a] person can be very negligent and
still not be guilty of gross negligence.” Kemp v. Pinal Cnty., 13 Ariz. App.
121, 124-25, 474 P.2d 840, 843-44 (1970).

¶8           Plaintiff alleges that ADOC violated its own polices by
placing Kilrain, an inmate with prior convictions for sex offenses, in a
general population yard, rather than placing him in a sex offender unit.
The record does not support this allegation. ADOC’s policy directs that


                                      3
                         KILRAIN v. ADOC, et al.
                           Decision of the Court

an inmate who is currently committed to ADOC for a sex offense must be
placed in a sex offender unit. However, ADOC’s policy also provides that
an inmate currently committed for a non-sexual offense, despite the fact
he has a prior conviction for a sex offense, is not restricted to placement in
a sex offender unit. Here, although Kilrain had a prior conviction for
sexual assault in 2004, he was not currently incarcerated for a sex offense;
he was serving a sentence for domestic violence. As a result, Kilrain’s
placement in a general population yard complied with ADOC’s policies.

¶9            Next, Plaintiff asserts that ADOC was grossly negligent in
denying Kilrain’s requests to be placed in protective segregation. The
record shows that Kilrain asked to be placed in protective segregation
following altercations with other inmates in February 2008 and April 2008.
In one of his requests, Kilrain specifically asked to be placed in a sex
offender unit.

¶10           The record does not show that ADOC was grossly negligent
in denying Kilrain’s requests, or that ADOC’s denials violated any of its
policies for protective segregation requests. Each time Kilrain requested
protective segregation, ADOC evaluated his request and moved him to a
different prison yard, with the inmates involved in relevant altercations
being added to his “Do Not House With” list to avoid future problems.
Moreover, in each instance, Kilrain waived his right to appeal ADOC’s
decision.

¶11           Finally, Plaintiff claims Defendants were grossly negligent in
failing to provide adequate staffing and supervision during the
approximately 30 minutes Richardson was absent from his post. The
record shows that, in fact, it was not uncommon for ADOC officers to
leave their posts for short periods of time to get a haircut from the staff
barber or a shoe shine, if, as was the case here, there were two officers
assigned to a single housing unit. Plaintiff notes that both Morehead and
Richardson were disciplined for this conduct as a violation of ADOC
regulations, and the shift supervisor was also disciplined for his failure to
exercise proper supervision.

¶12          This evidence, however, does not establish gross negligence.
It is undisputed that security checks were performed at the regular
intervals during Richardson’s absence from his post. Nothing in the
record indicates that Richardson and Morehead were aware of Kilrain’s
prior convictions or that he might be a target of assault, and therefore
needed to make sure they were both at their posts while Kilrain was
assigned to their yard. In addition, Plaintiff made no showing that the


                                      4
                         KILRAIN v. ADOC, et al.
                           Decision of the Court

practice of one officer covering two posts resulted in security problems or
assaults in the past, thereby causing Defendants to know or have reason to
know that this practice created an unreasonable risk of bodily harm to
inmates. See Walls, 170 Ariz. at 595, 826 P.2d at 1221.

¶13            In short, Defendants properly supported their motion for
summary judgment with admissible evidence and, in response, Plaintiff
did not properly dispute the evidentiary showing by Defendants. Nor did
Plaintiff affirmatively offer any admissible evidence. We therefore
conclude that Plaintiff has failed “to produce evidence that is ‘more than
slight and [that does] not border on conjecture’ such that a reasonable trier
of fact could find gross negligence.” Armenta v. City of Casa Grande, 205
Ariz. 367, 373, ¶ 21, 71 P.3d 359, 365 (App. 2003) (quoting Walls, 170 Ariz.
at 595, 826 P.2d at 1221).

III.   Section 1983

¶14           “Section 1983 protects against the ‘deprivation of any rights,
privileges, or immunities secured by the Constitution and laws.’” Ybarra
v. Bastian, 647 F.2d 891, 892 (9th Cir. 1981). Violation of state laws or
ADOC policies does not, without more, establish § 1983 liability; “Section
1983 ‘is not itself a source of substantive rights, but a method for
vindicating federal rights elsewhere conferred.’” Broam v. Bogan, 320 F.3d
1023, 1028 (9th Cir. 2003) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3
(1979)). Plaintiff must show that Richardson and Morehead, and/or the
State acting “under color of state law or authority,” deprived Kilrain of his
constitutional rights. Braillard v. Maricopa Cnty., 224 Ariz. 481, 489, ¶ 20,
232 P.3d 1263, 1271 (App. 2010).

       A.    Individual Liability under § 1983

¶15           A prison official is liable under § 1983 if his “deliberate
indifference to a substantial risk of serious harm to an inmate violates the
Eighth Amendment to the United States Constitution.” Flanders v.
Maricopa Cnty., 203 Ariz. 368, 376, ¶ 50, 54 P.3d 837, 845 (App. 2002). To
establish liability, plaintiffs must show “the incarceration is under
conditions posing a substantial risk of serious harm” and the prison
official “was both aware of facts from which one can infer that substantial
risk of serious harm exists and in fact drew that inference.” Id. at ¶ 51.
“The Eighth Amendment imposes duties on prison officials to take
reasonable measures to guarantee inmate safety,” in particular “to protect
inmates from violence at the hands of other prisoners.” Id. at ¶ 50. “To be
liable, prison officials need not have anticipated injury to a particular



                                     5
                          KILRAIN v. ADOC, et al.
                            Decision of the Court

victim; it is sufficient if they were aware of a risk to the safety of a
particular class of inmates.” Braillard, 224 Ariz. at 489-90, ¶ 20, 232 P.3d at
1271-72.

¶16            Plaintiff argues that Kilrain was subjected to a substantial
risk of serious harm because he was housed in a general population unit
despite his prior conviction for a sexual offense. The evidence does not
support this claim. Although Kilrain requested protective segregation
due to his history as a sexual offender, he was placed in the general
population unit in accordance with ADOC policies, and he did not appeal
the ultimate decision denying his request.             Additionally, upon
investigating Kilrain’s requests for protective segregation, ADOC ensured
that Kilrain would not be housed with those inmates who had engaged in
altercations with him in the past by placing them on his “Do Not House
With” list. Accordingly, Kilrain was not subjected to “incarceration under
conditions posing a substantial risk of serious harm.” Flanders, 203 Ariz.
at 376, ¶ 51, 54 P.3d at 845.

¶17           Plaintiff also claims the practice of one officer covering two
posts exposed Kilrain to a substantial risk of serious harm. For the officers
to be individually liable for their conduct under § 1983, Plaintiff must
show Richardson and Morehead were aware of a substantial risk to
Kilrain. See Flanders, 203 Ariz. at 376, ¶ 51, 54 P.3d at 845. However,
nothing in the record indicates that Richardson and Morehead were aware
of Kilrain’s prior convictions or that he might be a target of assault.
Although it can be said that leaving one officer to cover two posts may, as
a general matter, increase the risk of inmate injury, the record does not
show that Defendants acted with deliberate indifference to this risk.
There is no evidence showing that this practice led to an increase in
assaults or incidents of violence involving inmates.

       B.     The State’s Liability under § 1983

¶18            “[V]icarious liability is inapplicable to . . . § 1983 suits.”
Braillard, 224 Ariz. at 491, ¶ 27, 232 P.3d at 1273 (quoting Ashcroft v. Iqbal,
556 U.S. 662, 676 (2009)). “[A] local government may not be sued under §
1983 for an injury inflicted solely by its employees or agents.” Monell v.
Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). “A governmental entity is
liable under § 1983 when implementation of its official policies or
established customs inflicts the constitutional injury.” Id. at 708 (Powell,
J., concurring).




                                      6
                          KILRAIN v. ADOC, et al.
                            Decision of the Court

       Such an action may be maintained when “systemic and
       gross deficiencies in staffing, facilities, equipment, or
       procedures,” or “the need for more or different training,
       [are] so obvious, and . . . so likely to result in the violation of
       constitutional rights, that the policymakers of the [county]
       can reasonably be said to have been deliberately indifferent
       to the need.”

Braillard, 224 Ariz. at 492, ¶ 32, 232 P.3d at 1274 (citations omitted). This
kind of deliberate indifference occurs when “the need for more or
different training is so obvious, and the inadequacy so likely to result in
the violation of constitutional rights, that the policymakers of the city can
reasonably be said to have been deliberately indifferent to the need.”
Farmer v. Brennan, 511 U.S. 825, 840-41 (1994).

¶19           Plaintiff has not produced evidence of the requisite
deliberate indifference to establish ADOC’s liability under § 1983. As
discussed above, Kilrain was placed in a general population unit in
accordance with standard policies of ADOC. Supra ¶ 8. The record does
not contain evidence that this policy was deliberately indifferent to the
constitutional rights of Kilrain or other inmates with prior convictions for
a sex offense. Although it is unclear whether the practice of obtaining
post coverage to get a haircut was approved by the ADOC, the record
contains no evidence that ADOC was aware of a risk of harm resulting
from this practice. On the contrary, the evidence shows that this practice
had not resulted in security problems or assaults in the past, and that
security checks were conducted at their required intervals even if an
officer was absent.




                                       7
                       KILRAIN v. ADOC, et al.
                         Decision of the Court

                            CONCLUSION

¶20         For the reasons discussed above, we affirm the court’s grant
of summary judgment to Defendants.




                               :gsh




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