Jose Fierro v. Keith Smith ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE ABEL FIERRO, No. 19-16786
Plaintiff-Appellant,
D.C. No.
v. 2:13-cv-02173-
JJT
KEITH SMITH, Security Operations
Administrator at Phoenix Division
Director’s Office; MARLENE OPINION
COFFEY; PRUETT, D.W.; L.
FORESTER, D.W.; ROSE SANDERS;
PANANN DAYS; RYAN W. BROWER,
P.A.; NASH; ZORAN VUKCEVIC,
Defendants-Appellees,
and
CHARLES L. RYAN; GREG FIZER,
Deputy Warden at Florence Central
Unit; JULI JACKSON; PHILLIS
WIGGIN, Correctional Officer (C.O.)
IV / Classification Administrator at
Florence Complex; M. ESPINOZA,
C.O. IV/ Grievance Coordinator at
Central Unit - Florence; S.
ANDERSON, C.O. IV/ Grievance
Coordinator at Central Unit -
Florence; M. STEPHAN, #2360/ C.O.
III at Central Unit - Florence;
THOMAS CHARLES HORNE, Attorney
2 FIERRO V. SMITH
General; MICHAEL THOMPSON,
Medical Doctor at Central Unit -
Florence; GHETTS, Nursing
Supervisor at Central Unit - Florence
Complex; ETTA THURMAN, Medical
Records Librarian/ Custodian at
Central Unit - Florence; RICHARD
PRATT, Director, Division of Health
Services; BADILLA, # 4389/ C.O. III;
MICHAEL MCCARVILLE, Deputy
Warden/ Rast Unit – Lewis
Complex; HOUZE, C.O. II; MOLERA,
C.O. II; PIOTROWSKY, Sergeant; M.
BARRERA, Grievance Coordinator/
C.O. IV; STACEY CRABTREE; CAREY
TUCKER, Physician Assistant;
MORALES, Nursing Supervisor;
THEODORE, G.C./ C.O. IV; B.
RAJAS, Facility Health
Administrator/ Corizon; MERCHANT,
Medical Doctor; CENTRAL OFFICE
PAIN MANAGEMENT COMMITTEE,
including Doe defendants 1–4;
STARK, C.O. III; MILLER, N.S.
Medical; ELSIE STOWELL, F.H.A.
Corizon; GENE GREELEY, F.H.A.; M.
THOMPSON, M.D.; J. MATTOS, G.C./
C.O. IV; M. HARVEY, F.H.A.;
LUNDBERG, D.W.; ZORAN
VUKCOVIC; EAST; QUINTERO; LUEN;
MALACHINSKI; RIOOCHI; SHRUFF;
BROWN; LACRONE; SHUSTER; B.
OCHOA, Deputy Warden,
Defendants.
FIERRO V. SMITH 3
Appeal from the United States District Court
for the District of Arizona
John Joseph Tuchi, District Judge, Presiding
Argued and Submitted January 13, 2022
Pasadena, California
Filed July 5, 2022
Before: J. Clifford Wallace and Michelle T. Friedland,
Circuit Judges, and Robert S. Lasnik, * District Judge.
Opinion by Judge Friedland
SUMMARY **
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.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
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
COUNSEL
Jeremy Girton (argued), Meaghan VerGow, and Rachel A.
Chung, O’Melveny & Myers LLP, Washington, D.C.; Craig
McAllister, O’Melveny & Myers LLP, New York, New
York; Melissa C. Cassell, O’Melveny & Myers LLP, San
Francisco, California; for Plaintiff-Appellant.
Joseph E. Dylo (argued), Assistant Attorney General; Mark
Brnovich, Attorney General; Office of the Attorney General,
Phoenix, Arizona; for State Defendants-Appellees.
Patrick Nish Arndt (argued), Nall & Miller LLP, Atlanta,
Georgia; J. Scott Conlon, Renaud Cook Drury Mesaros PA,
Phoenix, Arizona; for Defendants-Appellees Ryan W.
Brower and Zoran Vukcevic.
OPINION
FRIEDLAND, Circuit Judge:
Jose Abel Fierro, a prisoner in his sixties with numerous
chronic health conditions, appeals from a judgment
following an adverse jury verdict on his claim that six
employees of the Arizona Department of Corrections
(collectively, “Defendants”) violated the Eighth
Amendment by failing to protect him from violence by other
prisoners. Between 2011 and 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 times, Defendants denied Fierro’s requests for protective
custody. After his sixth request was denied, Fierro was
physically assaulted in the prison yard by two other
6 FIERRO V. SMITH
prisoners, at least one of whom was a suspected member of
the Border Brothers.
Fierro sued under 42 U.S.C. § 1983. 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.”
Fierro argues on appeal that this jury instruction should not
have been given and that the jury might not have ruled
against him in its absence. 1 We agree. Because 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, we hold that this instruction
was erroneous. That error may have affected the verdict, so
we vacate and remand for a new trial.
I.
A.
Protective custody is the highest form of protection
available to Arizona prisoners. Those in protective custody
are removed from the general population and housed only
with prisoners granted the same protective custody status.
When an Arizona prisoner requests protective custody,
the request triggers a multi-step review procedure. Each step
is documented in a protective custody file for that prisoner.
Upon receipt of the prisoner’s initial request, a shift
1
Fierro also challenges various pretrial decisions by the district
court. We address those challenges in a memorandum disposition filed
concurrently with this opinion.
FIERRO V. SMITH 7
commander immediately isolates the prisoner in a secure
area and interviews him about his need for protection. The
deputy warden in charge of the prison unit then assesses
whether further investigation is required. If the deputy
warden orders additional investigation, a “correctional
officer IV” works with a special security unit to review the
file, gather additional facts, and complete a report indicating
whether certain risk factors are present. The deputy warden
reviews this report along with the full file and recommends
denial or approval of protective custody. If the deputy
warden recommends denial, she may recommend a lesser
form of protection, such as transferring the prisoner to
another unit or adding a fellow inmate to a “do-not-house-
with” list. A protective custody administrator or committee
then reviews the file, decides whether protective custody is
warranted, and provides a written explanation if the decision
differs from the deputy warden’s recommendation. The
prisoner may appeal that decision to the security operations
administrator, who reviews the case and issues a written
response.
B.
Fierro made his first request for protective custody in
response to a fight with his cellmate, a suspected member of
the Border Brothers, at the Lewis-Rast Unit in Buckeye,
Arizona. According to Fierro, his problems at that unit
began when another inmate came to his cell and divulged
that a correctional officer had told several inmates to “keep
an eye on” Fierro, leading the inmates to infer that Fierro
was a “snitch.” Fierro’s cellmate accused Fierro of being a
“rat,” the two got into a fist fight, and Fierro accidentally
8 FIERRO V. SMITH
punched a wall and broke his hand. 2 Fierro was not
forthcoming in his protective custody interview, stating only
that “it would be best if he got off the yard.” The
correctional officer IV determined that Fierro’s concern was
not gang-related and that his injuries were self-inflicted. The
deputy warden recommended an alternative placement in
lieu of protective custody, and Fierro was transferred to the
Cimarron Unit in Tucson.
Fierro requested protective custody a second time. He
reported that he had a scuffle with his new cellmate—a
suspected Border Brothers leader—and that, later,
unidentified inmates entered his cell, hit him, and took his
legal papers and address book. Fierro explained in his
protective custody interview that the inmates accused him of
being a snitch and that he feared the Border Brothers were
targeting him. Fierro’s request for protective custody was
forwarded to a correctional officer IV, who concluded that
none of Fierro’s claims were substantiated. The acting
deputy warden, Defendant Pannan Days, agreed, concluding
that there was no evidence to suggest a gang-related threat
and that Fierro had given no reason why he might be
perceived as a “snitch.” Days recommended an alternative
placement and added the cellmate to Fierro’s do-not-house-
with list. Fierro appealed, but Defendant Keith Smith denied
the appeal because, among other reasons, there was no
2
Fierro later received a disciplinary violation for false reporting
because he had stated in a letter that his hand was injured in a fight,
whereas he told the protective custody investigator that he had broken
his hand by hitting a wall. It is unclear why these two stories are
inconsistent; the record suggests that Fierro was fighting with his
cellmate when he swung, missed, and accidentally hit the wall, breaking
his hand. The disciplinary report was apparently included in Fierro’s
protective custody file, but the violation was later dismissed and deleted
from Fierro’s record.
FIERRO V. SMITH 9
evidence of “a state-wide threat” and Fierro’s claims were
“self-reported and unsubstantiated.” Fierro was then
transferred to the Lewis-Morey Unit in Buckeye.
Fierro requested protective custody a third time. He
reported that, the day he arrived at the Lewis-Morey Unit, a
note was passed under his cell door that told him to “leave
the yard or get stuck.” Fierro said he believed the note was
related to his fight with his former cellmate at the Cimarron
Unit and said he feared for his life in the general population.
A correctional officer IV documented Fierro’s claims and
confirmed that Fierro’s former cellmate at the Cimarron Unit
was indeed a suspected Border Brothers member. This time,
Deputy Warden Douglas Schuster reviewed the file and
recommended that protective custody be granted. But
Defendant Marlene Coffey, the protective custody
administrator, concluded that there was no threat against
Fierro and overruled Schuster’s recommendation. Fierro
was subsequently transferred to the Dakota Unit in Yuma.
In his fourth request for protective custody, Fierro
reported that he was “told to leave the yard” by the Border
Brothers, and that he had overheard one inmate tell another
to wait until later to beat Fierro up. Fierro stated that he was
being threatened by the gang for having previously requested
protective custody. The deputy warden, Defendant Rose
Sanders, recommended denial of the request for protective
custody because, among other reasons, Fierro had previously
made three similar requests and had not been assaulted at the
Dakota Unit. Defendant Coffey agreed. Defendant Smith
rejected Fierro’s subsequent appeal, stating that Fierro’s
allegations were self-reported and unsubstantiated. Fierro
was then transferred to the Kaibab Unit in Winslow.
Fierro made his fifth request for protective custody at the
Kaibab Unit, reporting that he had received a note saying,
10 FIERRO V. SMITH
“Now if you wanna fix your problem you’re going to have
to run with the raza [gang] & put in some work by stabbing
and killing whoever we tell you to.” A correctional officer
IV reported that Fierro said he had had issues with the
Border Brothers in the past and that he had thought about
taking the offer presented in the note because his requests for
protective custody kept being denied. The deputy warden,
Defendant Heather Pruett, recommended denying Fierro’s
request because, among other reasons, Fierro’s claims were
self-reported and he had not been assaulted. Pruett further
stated that Fierro appeared to be “manipulating the . . .
process to get him[self] off the yard,” and that he had “other
placement options available to him where he c[ould] house
successfully.” Defendant Coffey agreed. Fierro appealed
unsuccessfully to Defendant Smith, who reiterated that
Fierro’s allegations were self-reported and unsubstantiated.
Fierro was transferred to the Central Unit in Florence, where
he did not make any requests for protective custody. 3 Nearly
a year later, he was transferred back to the Cimarron Unit.
While at the Cimarron Unit, Fierro filed his sixth request
for protective custody after an inmate reportedly told him to
leave the yard. Fierro explained that he had previously been
assaulted at the Cimarron Unit and that the inmates there
knew about his “issues” and his past requests for protective
custody. A correctional officer from the special security unit
ran Fierro’s name through several “hit list” databases and
found no evidence that Fierro faced a gang-related threat.
The deputy warden, Defendant Linda Forester,
3
Fierro was in maximum custody at the Florence Unit, and it is not
clear from the record why he was placed there or why he was eventually
transferred out. At trial, Fierro testified that he had no roommate and
minimal interaction with the general population at the Florence Unit—it
was “24/7 lockdown and controlled movement.”
FIERRO V. SMITH 11
recommended an alternative placement because, among
other reasons, the special security unit had found no
evidence of a statewide threat or any gang-related issues.
Defendants Coffey and Smith agreed. In denying Fierro’s
appeal, Defendant Smith explained: “Investigation reveals
that there is no evidence to support [gang]-related issues.
Investigation reveals that there is no evidence to support the
existence of a state-wide threat. Your allegations are self-
reported and unsubstantiated. You were not threatened.
You were not assaulted.”
After his sixth request was denied, Fierro was transferred
back to the Lewis-Morey Unit, where Deputy Warden
Schuster had previously recommended protective custody.
Within fifteen minutes of his arrival, Fierro was assaulted by
two inmates, at least one of whom was a suspected Border
Brothers member. Fierro fell to the ground and assumed the
fetal position as his assailants repeatedly punched and kicked
him. The nurse who treated Fierro recalled that Fierro was
walking with a limp and suffered “bumps, bruises, and
contusions.” Fierro later contended that the attack
exacerbated his preexisting health conditions and caused
him months of severe physical and mental suffering, though
Defendants disputed this.
After the attack at the Lewis-Morey Unit, Fierro’s
seventh request for protective custody was granted.
C.
Deputy Warden Schuster, who had recommended
granting Fierro protective custody, testified at trial in support
of Fierro. All six Defendants took the stand to defend
themselves.
12 FIERRO V. SMITH
Deputy Warden Schuster testified that when Fierro had
first been housed at the Lewis-Morey Unit and made his
third request for protective custody, it had been “crystal
clear” that Fierro needed protection because Fierro was the
target of an “identified gang threat from a well-established
very functioning gang.” Schuster told the jury, “It was very
important as a Deputy Warden [that Fierro be placed in
protective custody] because I didn’t want another assault
occurring on my yard and for his protection.” He explained
that his team of officers had informed him that Fierro needed
protection or Fierro was “going to get hit.” A high-ranking
Border Brothers member who was working as a confidential
informant for Schuster’s team had corroborated the threat
against Fierro. But Schuster also told the jury that the
informant’s tip was only “the icing on the cake,” because it
was clear from the records in Fierro’s protective custody file
that he needed protection.
In their testimony, Defendants largely reiterated the
rationale for denying protective custody that they had
recorded in Fierro’s protective custody file: Fierro’s claims
were self-reported and unsubstantiated, and there was no
evidence of a statewide or gang-related threat. When
questioned at trial, most Defendants admitted that they knew
Deputy Warden Schuster had recommended protective
custody on Fierro’s third request, but some of them
explained that there was nothing in the file to indicate that
Schuster had relied on a confidential informant, so there was
no reason for them to investigate further. 4
4
Schuster explained at trial why he did not record anything about
the confidential informant in Fierro’s file: “You generally don’t refer to
specifics regarding informants because any little bit of information that
you provide can lead ultimately to the identification of that informant.”
FIERRO V. SMITH 13
Defendants also gave some explanations that they had
not documented in Fierro’s protective custody file.
Defendant Pruett said she was concerned by a report in his
file that Fierro had considered complying with an order from
gang members to stab someone to appease them because he
could not get protection from the prison. She also stated that
as part of her review, she “look[s] at the disciplinary record,”
but she never referenced any aspect of Fierro’s disciplinary
record. Defendant Sanders also testified that she would
normally look at an inmate’s disciplinary history before
recommending protective custody, and she said that “in this
case, what you would see is you’re going to see multiple
disciplinaries.” 5 But she did not state that she actually relied
on Fierro’s disciplinary history when she recommended
denial of his request for protective custody. Defendants also
described general concerns motivating the protective
custody review process, such as the safety of prisoners
already in protective custody and the need to protect them
from gang members or “predator[s]” who might infiltrate the
system, the need to limit the population in protective custody
given the high volume of requests, and the availability of
better programs and opportunities for rehabilitation in the
general population because the protective custody
programming is restricted.
5
It is not clear what “multiple disciplinaries” Sanders was
referencing in her testimony. Of the five disciplinary reports Defendants
sought to introduce at trial, only one predated Pruett’s and Sanders’s
recommendations that Fierro be denied protective custody. As discussed
above, that single disciplinary report stated that Fierro had lied about a
hand injury, but the violation was later dismissed and deleted from
Fierro’s record. See supra n.2. Whether it was dismissed before or after
Pruett and Sanders reviewed Fierro’s protective custody file is not
evident from the record before us.
14 FIERRO V. SMITH
D.
After the third day of trial, the district court heard
argument on the parties’ proposed jury instructions. Fierro’s
counsel objected to a proposed instruction that the jury
“should 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.” This so-called “deference instruction”
came from the Ninth Circuit’s then-current model jury
instructions for “Convicted Prisoner’s Claim of Failure to
Protect,” Ninth Cir. Model Civ. Jury Instr. § 9.28 (2017 ed.).
The district court held that the instruction was required under
Ninth Circuit precedent and gave the instruction to the jury.
The jury found all Defendants not liable, and judgment
was entered. Fierro timely filed this appeal.
II.
Where, as here, an objection to jury instructions was
timely raised in the district court, “[w]e review de novo
whether a district court’s jury instructions accurately state[d]
the law.” Coston v. Nangalama, 13 F.4th 729, 732 (9th Cir.
2021) (quoting Hung Lam v. City of San Jose, 869 F.3d
1077, 1085 (9th Cir. 2017)). “Use of a model jury
instruction does not preclude a finding of error.” United
States v. Warren, 984 F.2d 325, 327 n.3 (9th Cir. 1993).
“But if any error relating to the jury instructions was
harmless, we do not reverse.” Coston, 13 F.4th at 732
(quoting Spencer v. Peters, 857 F.3d 789, 797 (9th Cir.
2017)).
FIERRO V. SMITH 15
III.
A.
The concept of deference to prison officials conveyed in
the challenged jury instruction originated in a line of cases
in which the Supreme Court discussed how courts should
evaluate challenges to prison policies. The Supreme Court
instructed that, because “problems that arise in the day-to-
day operation of a corrections facility are not susceptible of
easy solutions,” prison administrators “should be accorded
wide-ranging deference in the adoption and execution of
policies and practices that in their judgment are needed to
preserve internal order and discipline and to maintain
institutional security.” Bell v. Wolfish, 441 U.S. 520, 547
(1979); see also Whitley v. Albers, 475 U.S. 312, 321–22
(1986). But the Supreme Court also emphasized that the
deference principle “does not insulate from review actions
taken in bad faith and for no legitimate purpose,” Whitley,
475 U.S. at 322, and that courts may not “abdicate their
constitutional responsibility to delineate and protect
fundamental liberties,” Pell v. Procunier, 417 U.S. 817, 827
(1974). Thus, courts should defer to the judgment of prison
officials “unless the record contains substantial evidence
showing [that] their policies are an unnecessary or
unjustified response to problems of jail security,” Florence
v. Bd. of Chosen Freeholders, 566 U.S. 318, 322–23 (2012),
or that the officials have “exaggerated their response to
[security] considerations,” Pell, 417 U.S. at 827.
The Supreme Court did not discuss jury instructions in
any of those cases. In interpreting them, we have grappled
with whether and when a district court should instruct a 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
16 FIERRO V. SMITH
security.” See, e.g., Norwood v. Vance, 591 F.3d 1062,
1066, 1069 (9th Cir. 2010); Chess v. Dovey, 790 F.3d 961,
972 (9th Cir. 2015).
Our decisions establish two conditions that inform
whether the deference instruction should be given when
prisoners assert Eighth Amendment claims challenging their
treatment in prison. 6 Those conditions are whether the
treatment the prisoner challenges (1) was provided pursuant
to a security-based policy or practice, and, if so, (2) was a
necessary, justified, and non-exaggerated response to
security needs. Depending on whether those two conditions
are satisfied, three situations can arise. First, in cases where
there is no genuine dispute that both conditions are met, the
deference instruction must be given. See Norwood, 591 F.3d
at 1066, 1069. Second, in cases where there is no genuine
dispute that either condition is not met (including when it is
undisputed that both are not met), the deference instruction
may not be given—in fact, the jury instructions should say
nothing about deference to prison officials. See Chess,
790 F.3d at 972; Shorter, 895 F.3d at 1189. Third, in the
remainder, the deference instruction may not be given, but it
might be appropriate to instruct the jury that “whether to give
deference to prison officials [is] left to the jury to decide.”
Coston v. Nangalama, 13 F.4th 729, 735 (9th Cir. 2021).
6
This framework also applies to pretrial detainees challenging their
conditions of confinement under the Fourteenth Amendment. “Although
claims by pretrial detainees arise under the Fourteenth Amendment and
claims by convicted prisoners arise under the Eighth Amendment, our
cases do not distinguish among pretrial and post-conviction detainees for
purposes of the excessive force, conditions of confinement, and medical
care deference instructions.” Shorter v. Baca, 895 F.3d 1176, 1182 n.4
(9th Cir. 2018).
FIERRO V. SMITH 17
Norwood is an example of the first type of case. In
Norwood, a prisoner alleged that his Eighth Amendment
rights were violated when he was denied outdoor exercise
during a series of prolonged prison lockdowns imposed after
several attempted murders of correctional officers. 591 F.3d
at 1065–66. At trial, the defendant prison officials requested
an instruction that would have told 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.” Id. at 1066. Concerned that the instruction would
confuse the jury, the district court rejected the proposed
instruction, id. at 1067, and the jury returned a verdict for the
plaintiff, id. at 1066. We reversed, holding that the district
court had erred in failing to give the requested instruction.
Id. at 1067. “Norwood [involved] an unusual and highly
volatile set of security-related concerns,” as to which we
concluded that deference to prison officials’ security-based
judgments was warranted as a matter of law. Shorter,
895 F.3d at 1186.
Chess and Coston are examples of the second type of
case. In both Chess and Coston, it was undisputed that the
first condition was not met. The plaintiffs in both cases
challenged the sudden discontinuation of their pain
medication, without tapering, by prison medical staff. In
Chess, the prison had a policy prohibiting inmates in the
general population from receiving certain narcotics, but the
defendants did not invoke the policy to defend their
decision—and the plaintiff had not even been in the general
population at the time his methadone was cut off. 790 F.3d
at 965, 974–75. We therefore held that there was no
connection between the narcotics policy and the decision at
issue. Id. at 975. In Coston, the prison staff failed to follow
their own requirement to observe the distribution of
18 FIERRO V. SMITH
medication, discovered that the plaintiff was collecting pills,
and terminated the plaintiff’s morphine prescription.
13 F.4th at 734. We held that the defendants’ breach of
protocol “br[oke] any plausible connection between a
security-based policy or practice and the medical decision
being challenged.” Id. In both cases, the district court had
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.” Id.; Chess, 790 F.3d at 969. We
held that, although each prison had a narcotics policy
motivated by institutional security concerns, it was
undisputed that the challenged medical decision was not
made pursuant to that policy—and thus it was error to give
the deference instruction. Chess, 790 F.3d at 974; Coston,
13 F.4th at 734.
Shorter is also an example of the second type of case,
and it reflects a situation in which the second condition was
not met. The plaintiff challenged a practice in a women’s
jail of leaving inmates chained to their cell doors for hours,
mostly unclothed and without access to food, water, or a
toilet, if they did not comply with strip-search procedures.
Shorter, 895 F.3d at 1179. The district court had given a
deference instruction identical to the one given in Chess and
Coston. Id. at 1182. We reversed, explaining that although
the searches may have been conducted for security reasons,
it was undisputed that the manner in which they were
conducted was unnecessarily humiliating and abusive. Id.
at 1189. At trial, jail officials acknowledged that there was
no legitimate reason to leave detainees unclothed after their
clothing had already been searched, and the watch
commander testified that the practice of chaining detainees
to their cell doors “shouldn’t happen.” Id. at 1188. The
county had in fact abandoned and disavowed the practice by
FIERRO V. SMITH 19
the time of trial. Id. at 1189. In light of these concessions,
we held that the jail officials “as a matter of law” were not
entitled to deference—and thus the jury should not have
been given any deference instruction. Id.
In Coston, we discussed the third type of case—in other
words, what happens when it is not resolvable as a matter of
law whether the prison officials are entitled to deference. As
explained above, it was undisputed in Coston that the
decision by prison medical staff to cut off the plaintiff’s pain
medication was unconnected to any security-based policy.
13 F.4th at 734. The defendants as a matter of law were not
entitled to deference on that record. But we explained that,
if the defendants could “show at retrial a genuine dispute of
material fact over whether [their] actions were (1) taken
because of a security-based policy or practice and
(2) necessary, justified, and not exaggerated,” then either no
instruction about deference should be given, or the jury
“must be explicitly instructed” that “whether to give
deference to prison officials [is] left to the jury to decide.”
Id. at 735. We will refer to this latter instruction as a “jury’s
choice” instruction. 7
7
The “jury’s choice” instruction could risk confusion without much
added benefit. Cf. David J. Barron & Elena Kagan, Chevron’s
Nondelegation Doctrine, 2001 Sup. Ct. Rev. 201, 227 n.98 (2001)
(suggesting that Skidmore deference amounts to nothing “more than a
court saying ‘we will defer to the agency if we believe the agency is
right’”). Accordingly, the “jury’s choice” instruction is not necessary in
all cases of this third type. But when factual disputes have made whether
to defer unclear—for example, if prison officials have presented expert
testimony supporting the officials’ contested judgments—it may be
important to instruct the jurors that it is ultimately up to them to decide
whether to defer to the prison’s choices.
20 FIERRO V. SMITH
To summarize, in each of the above types of cases, the
relevant question is whether there is a genuine dispute about
jail officials’ entitlement to deference. Only if the evidence
compels the conclusion that both conditions for deference
are met—or that either condition is not met—is the
deference question resolvable as a matter of law. In the first
type of case, deference is warranted, and the court should
instruct the jury to defer; in the second type, deference is not
warranted, and the court should not include any deference
instruction. If there is a genuine dispute whether deference
is appropriate, a court has the option either to give no
deference instruction at all or to explain to the jurors that it
is their choice whether to give deference.
B.
Applying this framework, we hold that the deference
instruction given to Fierro’s jury was erroneous. 8
We first consider whether there was a genuine dispute as
to whether Defendants denied Fierro’s protective custody
requests pursuant to a security-based policy or practice. We
conclude that there was. Defendants raised institutional
security concerns at trial, explaining that they had a duty
under the protective custody procedures to protect all
prisoners, especially those already in protective custody. 9
We observe that Coston was decided after the trial in this case, so
8
the district court did not have the benefit of its guidance when
formulating the jury instructions.
9
Fierro suggests that “post hoc rationales offered at trial” should be
given less weight than Defendants’ contemporaneous justifications for
denying Fierro’s requests. The relative weight of Defendants’ written
explanations and their later testimony is a question for the jury. If the
jury were to conclude that the security concerns articulated after the fact
FIERRO V. SMITH 21
But those explanations are in tension with Defendants’
contemporaneous rationales for denying protective custody,
which did not cite security concerns and instead focused on
their view that Fierro’s claims were “self-reported and
unsubstantiated.” The security justification was also
contested by Deputy Warden Schuster’s testimony. As
mentioned above, Schuster urged that a genuine concern for
security would have resulted in putting Fierro in protective
custody. That Fierro was assaulted within fifteen minutes of
his arrival at the Lewis-Morey Unit supports Schuster’s view
that Fierro faced a clear threat. This genuine dispute takes
this case out of the first category in the framework above, so
the deference instruction should not have been given.
Even if it had been undisputed that Defendants’
decisions were made pursuant to a security-based policy, the
deference instruction still would have been erroneous
because there was a genuine dispute whether their actions
were necessary, justified, and not exaggerated. Defendants
testified about the need to limit access to protective
custody—and to keep gang members or “predators” out—
for the security of those already in protective custody. It is
unclear, however, whether those broader concerns had any
bearing on the denials of protective custody in Fierro’s case.
Only two Defendants suggested at trial that Fierro’s conduct
in prison informed their decisions: Both Sanders and Pruett
mentioned Fierro’s disciplinary history, and Pruett also said
she was concerned that Fierro had apparently considered
complying with the order from gang members to stab
someone. If those concerns did motivate the denials, there
was at least a dispute whether they were exaggerated or
unjustified. The only disciplinary report for Fierro that was
were not true reasons for the decision, that could “break[] any plausible
connection [to] a security-based policy.” Coston, 13 F.4th at 734.
22 FIERRO V. SMITH
admitted at trial and could have informed their decisions was
the one alleging that Fierro had lied about how he had broken
his hand, which appears to have been unsupported. See
supra n.2. Moreover, the testimony about the threatening
order from the gang could be interpreted to show that Fierro
really needed protection, not that he was dangerous, making
Pruett’s response unjustified.
On the record as a whole, we hold that there was “a
genuine dispute of material fact over whether [Defendants’]
actions were (1) taken because of a security-based policy or
practice and (2) necessary, justified, and not exaggerated.”
Coston, 13 F.4th at 735. In other words, this case fell into
the third category in the framework described above. The
jury therefore should not have been instructed that it was
required to defer to Defendants’ security-based judgments—
at most, it should have been given a “jury’s choice”
instruction.
C.
An error in a jury instruction is harmless if the
defendants demonstrate that “it is more probable than not
that the jury would have reached the same verdict had it been
properly instructed.” Clem v. Lomeli, 566 F.3d 1177, 1182
(9th Cir. 2009) (quoting Dang v. Cross, 422 F.3d 800, 811
(9th Cir. 2005)). Defendants have not met their burden of
proving harmlessness here. We have repeatedly recognized
that the deference instruction deals a “devastating blow” to
a plaintiff’s constitutional claims and may amount to a
“command to direct a verdict in favor of the government.”
Shorter, 895 F.3d at 1190 (first quoting Harrington v.
Scribner, 785 F.3d 1299, 1307 (9th Cir. 2015), then quoting
Norwood, 591 F.3d at 1072 (Thomas, J., dissenting)).
Because Defendants persistently denied Fierro’s pleas for
protection despite evidence that he faced a serious threat, the
FIERRO V. SMITH 23
jury might well have returned a verdict in his favor if not for
the deference instruction.
Accordingly, we vacate and remand for a new trial.
VACATED AND REMANDED.