Government Liability Update

Prison Litigation Reform Act Limits Awards of Attorney Fees to 150% of Compensatory Damages Awarded against Defendant

In Jimenez v. Franklin, published May 22, 2012, the 9th Circuit interpreted 42 U.S.C.§ 1997e(d)(2), part of the Prison Litigation Reform Act, to limit attorney fee awards to inmates to 150% of the damages awarded against a defendant.  But it ruled that the defendants in that case had waived any challenge on that ground against a court order awarding fees against multiple defendants jointly and severally, because they did not raise that issue in an earlier appeal from the fee award.

Medical Marijuana Users Cannot Challenge Closure of Dispensaries Through Title II of the ADA

In James v. City of Costa Mesa, published May 21, 2012, a divided 9th Circuit panel concluded that Title II of the ADA, which prohibits discrimination against the disabled in providing public services, does not provide a ground for challenging a city's exclusion of medical marijuana dispensaries from its borders.  Although the ADA protects persons with disabilities, the Act excludes from its definition of persons with disabilities persons who use illegal drugs, when the challenged activity is based on the use of those drugs.  Although California state law permits the use of marijuana for medical purposes, federal law does not.  The majority interpreted the ADA to define illegal drug use by reference to federal, rather than state, law.  Congressional action allowing the District of Columbia to implement a medical marijuana initiative did not change that conclusion.  

One judge concurred in part and dissented in part.  She considered the statutory interpretation close, and concluded that the ADA protects use of medical marijuana in California.  She did not, however, rule out the possibility that the ADA does not protect distribution of medical marijuana; and would have remanded the case for consideration of that issue.

Federal Special Education Statutes Create Neither a Cause of Action for Nominal Damages for Failure to Cooperate with Discovery, Nor a Damages Cause of Action against a Magnet School for Reasonable Admission Requirements

In Oman v. Portland Public Schools, published May 14, 2012, the 9th Circuit ruled that neither the Individuals with Disabilities Education Act nor 42 U.S.C. section 1983 created a cause of action for nominal damages for a school district's failure to provide discovery during an administrative due process proceeding arising out of a parent's complaint against the district.  The IDEA does not create a damages cause of action.  That includes nominal damages.  Section 1983 does not create a damages cause of action for any remedy available under the IDEA.  Since the parent could have obtained the discovery through the administrative proceeding (by making a formal request for it), she could not use section 1983 to seek damages, nominal or otherwise, for the failure to provide discovery.

The parent also sought money damages under the ADA and Section 504 of the Rehabilitation Act against the District for imposing an admission requirement for its magnet high school that incoming students write at an eighth grade level.  The ADA and Section 504 bar school districts from improperly excluding disabled students.  Imposing reasonable admission requirements does not improperly exclude disabled students.

Public Official Not Entitled to Qualified Immunity for Allegedly Retaliating against Employee for Employee's Subpoenaed Deposition Testimony in Civil Rights Lawsuit

In Karl v. Mountlake Terrace, published May 8, 2012, the 9th Circuit held that a public employee's subpoenaed deposition testimony, given in a 42 U.S.C. section 1983 case alleging the violation of a fellow employee's civil rights, is speech on a matter of public concern, given in the employee's capacity as a private citizen rather than as part of her job duties.  Therefore, under the analyses set forth in Garcetti v. Ceballos, 547 U.S. 410, 417 (2006) and Connick v. Myers, 461 U.S. 138, 140 (1983), the speech is protected by the First Amendment; and the employee has a cause of action under section 1983 if she suffers employment retaliation because of that speech.  The court further held that even though there was no circuit precedent in 2008 (when the retaliation is alleged to have occurred) holding that the speech was protected, a reasonable official in the defendant assistant police chief's position would have known the speech was protected by the First Amendment.  The assistant chief was therefore not entitled to qualified immunity for the alleged retaliation.