Government Liability Update

Prison Guards' Alleged Retaliation against Inmate for Complaining about another Prisoner Did Not Violate Clearly-Established Law

In Bird v. Dizurenda, published March 13, 2025, the 9th Circuit Court of Appeals reversed the district court's denial of summary judgment to defendant prison guards based on qualified immunity.  The plaintiff inmate approached the officer in charge of his cell unit and requested that he be moved from his cell at once because of issues with his current cellmate that, he said, if left unaddressed, would lead to a fight.  In response, the officer called for assistance, and two more guards appeared.  The plaintiff explained the situation to them, and one guard allegedly said, "Fight him or fight me."  The guards instructed the plaintiff to gather his belongings in preparation for being moved.  As he did so, the guard he initially spoke to tried to close the cell door and announced over the in-cell speaker that the plaintiff was staying in that cell.  The plaintiff blocked the door's closing by pushing a plastic tub in the way, and responded that he was not.  Two of the guards then reentered the cell, ordered the plaintiff to push his property back into the cell, and directed him to a prison classroom.  The guards then allegedly "thrashed the cell" and confiscated items of the plaintiff's property, and did not issue him a form to appeal the confiscation of his property.  Guards later transferred the plaintiff to a new cell that day.  The prison denied the plaintiff's grievances.  He then filed a complaint against the guards and other prison administrators in federal court, alleging retaliation.  The district court denied the prison officials motion for summary judgment on the retaliation claim, holding they were not entitled to qualified immunity.

The 9th Circuit found qualified immunity.  In the prison context, prohibition against retaliatory punishment may violated clearly-established law, implicating the prisoner's 1st Amendment right to petition prison grievances and to seek redress for prison injustices, where a state actor took some adverse action against an inmate because of that inmate's protected conduct.  The plaintiff's request for a cell transfer based on concerns with his cellmate does not constitute "protected conduct" under clearly established law.  While retaliation for complaints against prison officials would be protected conduct, retaliation against a prisoner because of a complaint about another prisoner is a significant distinction from prior caselaw. 

Officer's Unreasonable Mistake as to Whether Arrestee Requires Medical Care Not Subject to Qualified Immunity

In D'Braunstein v. California Highway Patrol, published March 12, 2025, a divided panel of the 9th Circuit Court of Appeals reversed summary judgment for the defendant officer.  The officer arrived at the scene of a single-vehicle auto accident, in which the plaintiff crashed his car into a concrete wall along a freeway onramp.  The plaintiff was standing next to the car.  The plaintiff displayed symptoms of disorientation and poor balance.  He did not smell of alcohol, and passed a breathalyzer test, but could not perform field sobriety tests.  The officer decided the plaintiff was under the influence of drugs.  She arrested the plaintiff and took him to jail.  The jail nurse denied the plaintiff admission to the jail and directed he be taken to a hospital. The officer drove the plaintiff to a hospital, without using her siren or flashing lights.  The plaintiff arrived at the hospital over three and a half hours after the officer first encountered him.  The plaintiff was diagnosed with a stroke, and suffered incapacitating brain damage.  There was conflicting evidence of whether earlier treatment would have mitigated his stroke symptoms.  The plaintiff sued the officer, alleging deprivation of medical care.  The district court granted summary judgment, finding that the constitutional violation was not clearly established and the officer was entitled to qualified immunity.

The panel majority disagreed.  Under both the 4th Amendment, which applies to arrests, and the 14th Amendment, which applies to pretrial detainees, the question is whether the officer's provision or deprivation of medical care was objectively unreasonable.  Here, construing the facts in the light most favorable to the plaintiff, a reasonable jury could find that the officer's failure to summon prompt medical treatment for the plaintiff was objectively unreasonable, and that the officer acted with reckless disregard for the plaintiff's safety, given the serious nature of the accident and the plaintiff's symptoms.  The officer's subjective belief that the suspect was on drugs does not change matters, considering the plaintiff had emerged from a violent car crash and was exhibiting physical and cognitive abnormalities.  The majority further ruled that it is clearly established that officers must seek to provide an injured detainee or arrestee with objectively reasonable medical care in the face of medical necessity, and may not act with objective deliberate indifference to such a medical need.  Case law further established this duty is not limited to situations where the officer's conduct causes the injury warranting medical attention.  The majority rejected the argument that there was no case law that would have put the officer on notice in the specific circumstances she encountered of the duty to summon prompt medical care.  Although an officer may be entitled to qualified immunity for a reasonable mistake, if the law is otherwise clearly established, an officer is not entitled to qualified immunity for a mistake of fact or judgment that is itself unreasonable.  Although specificity is required to clearly establish the law, a past case dealing with strokes or auto accident victims is not necessary.

A dissenting judge opined that the officer was entitled to qualified immunity, because the existing law did not place beyond debate that the officer, who was not a medical professional, was violating the plaintiff's constitutional rights by perceiving he was under the influence of drugs rather than injured.

Pre-Verdict JMOL Motion Based on Argument of Reasonable Force Did Not Waive Post-Verdict JMOL Motion Arguing Qualified Immunity, Where Factual Arguments Were the Same and There Was Earlier MSJ on Qualified Immunity

In Estate of Najera-Aguirre v. City of Riverside, published March 11, 2025, the 9th Circuit affirmed a judgment against a police officer for use of excessive force entered after a jury trial, and the district court's denial of judgment as a matter of law.  The defendant police officer arrived at the scene after receiving a report of someone destroying property with a bat-like object.  The officer commanded the decedent to drop the bat he was holding.  The decedent refused and walked toward the officer.  When the decedent was 10-15 feet from the officer, the officer pepper-sprayed the decedent.  The pepper spray blew away, and was ineffective.  The decedent turned toward the officer, still holding the bat.  They stood face-to-face, still 10-15 feet apart.  Without giving a warning, the officer pointed his gun at the decedent and fired six shots in two volleys.  The decedent collapsed face down.  His body was approximately 10 feet from where the officer was standing.  An autopsy suggested the decedent was turned away, with his back to the officer when the fatal bullets hit.  The decedent's children sued the officer.  The district court denied summary judgment based on qualified immunity, which the 9th Circuit affirmed in a published decision.  A jury found for the plaintiffs and awarded $10 million in damages.  The court denied a pre-verdict motion for judgment as a matter of law based on lack of excessive force.  After judgment, the officer renewed his motion and added an argument he was entitled to qualified immunity.  The district court denied this motion.  The officer appealed that decision.

The 9th Circuit ruled that the officer had preserved his qualified immunity argument.  Although he did not raise qualified immunity in his pre-verdict motion, both were based on the same underlying factual arguments.  Further, he had previously raised the legal argument of whether he violated clearly-established law in his summary judgment motion.  The court then ruled that qualified immunity was properly denied.  Viewing the evidence in the light most favorable to the plaintiffs, and drawing all reasonable inferences in their favor, the officer used deadly force on a suspect who did not pose a threat.  That violated clearly-established law.

 

Social Worker and County Entitled to Discretionary Immunity for Allegedly Maintaining Foster Placement Despite Reports of Sexual Abuse

In K.C. v. County of Merced, published March 11, 2025, the Fifth District Court of Appeal affirmed dismissal of the plaintiff's action after demurrer.  The plaintiff alleged that she was sexually abused and assaulted while in two foster care placements between 1971 and 1977.  The plaintiff alleged she repeatedly reported the sexual abuse at the first foster placement to her county social worker.  She further alleged the county was on notice of the abuse at the second placement because of the change in the plaintiff's demeanor.  She filed suit in 2022.  The county demurred on the grounds that the social worker was entitled to immunity under Government Code section 820.2, and the county was therefore immune under Government Code section 815.2, subdivision (b).  The trial court sustained the demurrer without leave to amend.

The appellate court noted that the lawsuit was timely under the amendment to Code of Civil Procedure section 340.1 that revived time-barred claims relating to childhood sexual assault.  The court nevertheless affirmed the demurrer based on the social worker's immunity under Government Code section 820.2's discretionary immunity, which under section 815.2(b) applied to the county employing the social worker.  Section 820.2 applies to discretionary foster child placements.  It therefore applied to decisions whether to undertake investigative or corrective action in response to reported child abuse.  While a finding of immunity requires a showing that the specific conduct giving rise to the suit involved a conscious balancing of risks and advantages, a strictly careful, thorough, formal, or correct evaluation is not mandatory.  Under a fair reading of the complaint, the plaintiff essentially alleged the county's social workers were confronted with reports of sexual abuse that should have prompted investigative or corrective action, but they failed to properly exercise their discretion to do so.  This was a claim of improper evaluation, which cannot divest a discretionary policy decision of its immunity.

Parent's Exclusion from School Grounds in Alleged Retaliation May Violate 1st Amendment, but Principal Entitled to Qualified Immunity

In Hartzell v. Marana Unified School Dist., published March 5, 2025, the 9th Circuit Court of Appeals affirmed in part and reversed in part the judgment in favor of the defendant school district and its principal.  The plaintiff was a parent who had multiple children enrolled in the school overseen by the defendant principal.  The plaintiff had been advocating for improved services in the district, and asserted that the district reacted negatively to her advocacy.  One day, two of the plaintiff's children were scheduled to present projects at a school event, in different rooms simultaneously.  The plaintiff saw the principal during the event and complained.  After a conversation, the principal started walking away.  There was conflicting evidence over whether the plaintiff grabbed the principal's wrist or simply touched his arm.  A hall monitor ordered the plaintiff to leave the school grounds.  The plaintiff was approached in the parking lot by a police officer who told her she was "trespassed from" the school property and could not enter school property; and that the order would remain in effect until the district decided otherwise.  In an incident report, the officer stated that he was acting on the school's instructions.  After the incident, district personnel discussed the plaintiff's advocacy.  The superintendent and an attorney for the district met with the plaintiff and told her she was banned from school grounds indefinitely, with the exception that she could pick up one child if she did not speak to anyone.  The order remained in place for over three years.  The plaintiff contended the exclusion order was issued pursuant to a district policy that prohibits conduct intended to obstruct, disrupt, or interfere with a school’s operations; physical or verbal abuse or threat of harm to any person on property owned or controlled by the district; and use e of speech or language that is offensive or inappropriate to the limited forum of the public school educational environment.  The plaintiff sued the district and the principal, bringing a 1st Amendment retaliation claim against both and a procedural due process claim against the district.  The district court granted summary judgment on the procedural due process claim, and granted the principal summary judgment based on qualified immunity.  The case proceeded to trial on the plaintiff's Monell claim against the district based on a custom, policy, or practice that was the moving force behind the alleged 1st Amendment retaliation claim.  At the close of the plaintiff's case in chief, the court granted the defendants judgment on the Monell claim under FRCP 50(a) (nonsuit).  

The 9th Circuit ruled that the district court erred in granting nonsuit on the district's 1st Amendment retaliation liability.  The provision of the district policy banning speech that is offensive or inappropriate would be unconstitutional if it applied to ban the plaintiff for criticizing the principal.  The plaintiff presented sufficient evidence for a jury to conclude that the district relied on the policy, rather than the plaintiff allegedly grabbing the principal's wrist, to ban the plaintiff from school premises.  The 9th Circuit upheld summary judgment on the procedural due process claim, on the ground that the plaintiff did not have a protected state interest in accessing school property.  It also upheld summary judgment for the principal based on qualified immunity.  There was no existing binding precedent that clearly established that excluding a parent from school grounds based on a policy banning offensive or inappropriate speech.

Public Entity Cannot Be Sued for Retaliation under California False Claims Act, but May Be Sued under Statute for Retaliation by a Health Care Facility

In Ryan v. County, published February 28, 2025, the Second District Court of Appeal, Division 3 affirmed in part and reversed in part a judgment after jury trial.  A surgeon on the staff of a county hospital was terminated after his medical staff privileges lapsed and were not renewed.  He alleged he was terminated for whistle-blowing about unnecessary surgeries.  He sued under causes of action that included Government Code section 12653, the whistleblower-protection provision of the California False Claims Act; and Health & Safety Code Section 1278.5, which bars heath facilities from retaliating against members of the medical staff for filing complaints or participating in investigations.  The trial court sustained a demurrer without leave to amend as to the section 1278.5 cause of action, but allowed the section 12653 cause of action to go to trial, and declined to grant judgment notwithstanding the verdict as to that cause of action.

The appellate court reversed both rulings.  Wells v. One2One Learning Foundation (2006) 39 Cal.4th 1164 held that California False Claims Act suits cannot be brought against public entities, but did not address whether the anti-retaliation provision in the act, Government Code section 12653, applied to public entity defendants.  The court concluded that under section 12653's language, a retaliation claim is not available where a viable false claim case cannot be brought against the defendant.  The retaliation cause of action therefore does not lie against a public entity defendant.  Further, Wells established that the punitive damages provisions of the Act should not be brought against public entities.  As for Health & Safety Code Section 1278.5, the court interpreted the language of the statute--which discusses state facilities as well as county and city facilities--to show a legislative intent that the action could be brought against public entities.

Officers Who Shot Suspect Holding Pen Knife, without Giving Warning, May Have Violated Clearly-Established Law

In Johnson v. Myers, published March 3, 2025, the 9th Circuit Court of Appeals affirmed a district court decision denying the defendant officers summary judgment based on qualified immunity.   Several police officers responded to a call from decedent's girlfriend stating decedent was being abusive.  One of the defendant officers spoke with the decedent, built a rapport with him, and defused the situation without an arrest.  Almost four weeks later, the girlfriend again called 911, telling the operator that the decedent was threatening to kill both her and himself with a knife.  She asked the officers to get him to leave.  She said that she was bolting herself in the bathroom and that the decedent was scraping the bathroom door with his fingernails.  She said that the decedent had said there was blood everywhere, but did not know if the decedent had actually harmed himself.  An inaccurate message was transmitted via radio that the caller was saying there was blood everywhere inside the bathroom.  Multiple officers, including the officer who had talked the decedent down before, arrived.  When the caller heard the sirens, she asked the dispatcher, "No, please don't shoot."  The officers identified themselves, demanded entry, then kicked in the door.  The decedent was standing in the hallway of the apartment, hands down at his side.  He was holding an open pocketknife.  Over the span of five seconds, the officers gave overlapping commands to the decedent to put his hands up, get on the ground, and drop the knife.  The decedent took several steps forward, and the officers retreated so that there was approximately 4.5 feet between themselves and the decedent.  The decedent raised his right hand, in what could have been complying with the order to put his hands up.  It is disputed whether the decedent kept advancing or stopped.  Without giving a warning, the officers fatally shot the decedent.  When the officers moved for summary judgment, the district court found factual disputes on whether a reasonable officer in the same position would have believed the decedent posed an immediate threat to the officers, and whether the use of less drastic measures was feasible.

The 9th Circuit agreed that, viewing the facts in the light most favorable to the decedent, the officers were not entitled to statutory immunity.  A 9th Circuit case published before the events of the case held that officers' use of force was not indisputably reasonable where officers shot a man holding a pocketknife to his own neck, because the man never brandished or threatened the officers with the knife, he might not be actively resisting arrest, he may not have comprehended the warnings and commands the officers gave, and less lethal measures, such as the use of a taser, were available.  Those same factors were present here.  The officers gave no warning before shooting, made no attempts to talk to the decedent or otherwise deescalate the situation, and resolving factual disputes for the plaintiffs, the decedent had stopped and was raising his hands when the officers shot him ten times.  Those facts would clearly establish a violation of the 4th Amendment.

State Law Exhaustion Requirement May Not Be Used to Immunize Officials from Liability under 42 U.S.C. § 1983 by Making Suit Impossible

In Williams v. Reed, published February 21, 2025, a divided U.S. Supreme Court reversed a state supreme court decision affirming dismissal of a lawsuit under 42 U.S.C. section 1983.  A group of unemployed workers alleged that the state unlawfully delayed processing their state unemployment benefit claims.  State law provided that state courts could not entertain appeals from decisions allowing or disallowing a claim for benefits unless the person filing the appeal had exhausted the administrative remedies under the suit.  The claimants sought a court order requiring the  state to speed up its administrative hearing process.  The state courts dismissed the action on the ground that the plaintiffs had not exhausted the administrative hearing process.

The Supreme Court, 5-4, ruled that the exhaustion requirements as applied here had the effect of immunizing the state officials from suit under section 1983.  Because the claimants cannot sue until they complete the administrative process, they can never sue under section 1983 to obtain an order expediting the administrative process.  The majority emphasized that its ruling was narrow.  Four dissenting justices opined that because states can choose whether to permit section 1983 suits in state court, the state court's decision was correct.

Farmer Stated Cause of Action for Inverse Condemnation against Water District by Alleging the Water He Received Had More Sediment Than His Neighbors'

In Sheyn v. Ventura County Public Works Agency et al., published February 20, 2025, the Second District Court of Appeal, Division 6 reversed a dismissal of an inverse condemnation lawsuit on demurrer.  The plaintiff grew avocados.  The defendant district is a publicly-owned utility that provides water to the plaintiff and other property owners.  The plaintiff's property is at the end of a branch line of the district's system.  The plaintiff alleged that the amount of sediment in his water is vastly and grossly disproportionately greater than other properties the district serves, and that the sediment damaged his irrigation pipes and orchard.  He alleged that this is a direct and necessary result of the plan, design, maintenance, and operation of the district's water supply facilities.  The trial court sustained the district's demurrer to the inverse condemnation cause of action, on the ground that the plaintiff invited the water onto his property.

The appellate court ruled that the plaintiff had stated a cause of action for inverse condemnation. A cause of action for inverse condemnation lies where  damage to real property is substantially caused by an inherent risk presented by the deliberate design, construction, or maintenance of a public improvement.  The injury to private property must be an inescapable or unavoidable consequence of the public improvement as planned and constructed.  Plaintiff sought compensation for allegedly bearing a  disproportionate amount of the externalized costs of a public improvement resulting from an inherent risk presented by the deliberate design, construction, or maintenance of the public improvement. This interpretation supports a claim for inverse condemnation.  That he "invited" the water onto his land (rather than being flooded) does not change that.

Failure to Give Student Opportunity to Explain Himself before Extending Suspension on New Charge Violated Clearly-Established Law

In K.J. v. Jackson, published February 11, 2025, the 9th Circuit reversed summary judgment for the individual defendants in a 42 U.S.C. section 1983 case.  The students involved in a lunchtime fight on a high school campus were suspended for fighting on campus.  The plaintiff was included.  Before he and the other students were suspended, they met with administrators and provided written statements about the incident.  At some point after the plaintiff was sent home from school, a vice principal watched surveillance videos of the fight, and learned one of the students involved suffered injuries.  The vice principal concluded that plaintiff not only participated in the fight, but willfully caused serious injury to another person that was not in self-defense.  The night before the plaintiff was scheduled to return to school, the vice principal called the plaintiff's mother and told her school officials had decided to extend the plaintiff's suspension and were recommending his expulsion.  The plaintiff was not on the call.  The next day, the vice principal sent the parents an e-mail summarizing the call, and providing updated suspension/expulsion paperwork.  It advised the parents their next step was to communicate directly to the district's appeal department.  The parents met with a counselor from the department.  The plaintiff was not required to attend, not invited to attend, and did not attend.  His parents were not allowed to present any defense to the factual allegations underlying the suspension and recommended expulsion.  The parents then sued the district, the vice principal, and other school district officials challenging the suspension and recommended expulsion.  Five days later, the suspension was lifted and the recommendation for expulsion rescinded.  Between the suspension and the return to school, no one from the district or school ever communicated with the plaintiff. The district court agreed with the plaintiff that the district violated his 14th Amendment right to procedural due process by extending his suspension and recommending expulsion without providing him with notice of the charges against him, an explanation of the evidence, and a chance to tell his side of the story.  But it granted summary judgment on the grounds that the individual defendants were entitled to qualified immunity, because the law did not clearly establish a right to due process before a suspension is extended.  And it concluded that the plaintiff lacked Article III standing to seek expungement of his record.

The 9th Circuit agreed that the defendants violated the plaintiff's due process rights.  Goss v. Lopez (1975) 419 U.S. 565, 580-581 established the student's due process rights to notice of the charge and evidence, and a right to be heard, before suspension.  The defendants contended that they gave the plaintiff that right before his initial suspension.  But because the defendants never informed the student of the new charges and new evidence that formed the basis of the extended suspension, he did not have a meaningful opportunity to present his side of the story.  That the suspension was an extension, rather than an original suspension, was of no consequence.  Further, Goss clearly established the student's right to due process.  The suspension extension was not based on the same alleged conduct as the original suspension.  The plaintiff did not have an opportunity to present his side of the story as to the new charges and evidence.  The procedures delineated in Goss clearly apply to suspension extensions based on new charges or new evidence.  Finally, the plaintiff may seek expungement of any records of the suspension extension and expulsion recommendations.  There is no 11th Amendment bar to the plaintiff seeking prospective injunctive relief from an ongoing violation of federal law.  The district court's finding that the relief sought was moot was error.  The relief sought was not moot at the time the plaintiff filed suit, because he was still suspended and unable to return to school.  He had standing to seek injunctive relief to stop the ongoing effects of the violation.  And because the suspension report and expulsion recommendation remain in his disciplinary files--accessible to district personnel-- and he would likely need to self-disclose that information on college applications, his prayer is not moot.