Government Liability Update

Prison Officials Entitled to Qualified Immunity for Conditions of Inmate Contraband Watch

In Chappell v. Mandevill, published January 31, 2013, a divided Ninth Circuit panel reversed a district court's denial of a summary judgment motion two California state prison officials brought against an inmate's 42 U.S.C. section 1983 lawsuit.  In 2002, the inmate was placed on a six-day contraband watch, under conditions that included 24-hour bright lighting in his cell and deprivation of a mattress.  The majority held that in April to May 2002, the law did not clearly establish that the lighting or mattress deprivation violated the 8th Amendment; that the prisoner did not have a liberty interest under the 14th Amendment's due process clause; and that it was not clearly established that the officials had violated a state-created liberty interest. The officials were therefore entitled to qualified immunity. A dissenting judge opined that, viewing the facts in the light most favorable to the inmate, the officials were not entitled to qualified immunity regarding conditions that amounted to sleep deprivation.

Because Investment Decisions Are Discretionary, County Treasurer That Invests Local Agencies' Money Is Immune from Suit for Allegedly Imprudent Investments

In San Mateo Union High School Dist., et al. v. County of San Mateo, published January 31, 2013, the First District Court of Appeal, Division One, affirmed dismissal on demurrer of a suit the plaintiff school districts brought against a county and its former treasurer for $20 million in losses the districts sustained when the treasurer invested a pooled investment fund's money in notes issued by Lehman Brothers.  The appellate court rejected the plaintiffs' argument that Government Code sections 27000.3 and 53600.3, which articulate the "prudent investor standard" governing investments by county treasurers, set forth a mandatory duty that would support a cause of action against the county under Government Code section 815.6.  Since investment decisions are inherently discretionary, and those statutes set forth only general goals and guidelines rather than obligations to perform or not to perform specific acts, they did not create mandatory duties.  The treasurer was immune from liability under Government Code section 820.2's discretionary immunity; and under Government Code section 815.2(b), that immunity extended to the county's liability for the treasurer's acts.

Another statute in the same scheme -- Government Code section 53601(k), which imposes a duty to invest in notes with a maximum remaining maturity of five years or less -- does impose a mandatory duty.  But the statute did not apply, because it only applies to local agencies that do not pool money in investments with other local agencies.  The statute that applied to pools -- section 53635 -- did not impose the maturity limit.

The above immunities did not apply to plaintiffs' cause of action for breach of contract.  But the court concluded that, because the treasurer invested the funds given him to invest, the plaintiffs failed to plead breach of contract, and could not plead a breach.

Correctional Officers Who Do Not Know Inmate Entitled to Vegetarian Meals Do Not Violate Equal Protection Clause by Refusing to Provide Vegetarian Meal

In Furnace v. Sullivan, published January 17, 2013, the Ninth Circuit Court of Appeals affirmed in part and reversed in part summary judgment granted to correctional officers who pepper-sprayed an inmate when the inmate requested a vegetarian meal and the officers refused to provide one.  Although the prisoner's religion entitled him to a vegetarian meal, and his "chrono" form listed his entitlement, it was undisputed that the officers did not know that.  The appellate court affirmed summary judgment against the inmate's allegation that the officers violated his equal protection clause rights by denying him the meal, because he was not treated differently from any other inmate that the guards did not know were entitled to vegetarian meals.  Because there were issues of fact about the circumstances of the pepper spraying, including whether the officers warned the inmate first and how much spray was used, summary judgment of the prisoner's Eighth Amendment claim was reversed for further proceedings. 

Public Entity Is Not Vicariously Liable for Its Employee's Failure to Report His Own Molestation of Minor

In Kassey S. v. City of Turlock, published January 17, 2013, the Fifth District Court of Appeal affirmed the dismissal of a lawsuit against the defendant city arising out of a city police officer's alleged sexual assault of the minor on multiple occasions.  The plaintiff acknowleged that the city could not be held vicariously liable for the officer's sexual abuse, because as a matter of law it was outside the scope of the officer's duties.  But the plaintiff argued that because the officer was a mandated reporter, he had a mandatory duty under Penal Code section 11166, subdivision (a), to report his own abuse; and that the city could be held vicariously liable for his failure to do so.  The appellate court rejected that argument.  Interpreting the mandated-reporter statute to require the reporter to report his own molestation of a minor would violate the Fifth Amendment right against self-incrimination; and the court refused to interpret the statute as unconstitutional.  Because the officer did not have that duty, the city could not be held vicariously liable.

Sheriff's Department Immune from Liability for Releasing Levied Funds

In Tom Jones Enterprises v. County of Los Angeles, published January 17, 2013, the Second District Court of Appeal, Division 5, affirmed dismissal of a negligence lawsuit against a county based on a county sheriff's department's alleged negligence in following instructions in releasing levied funds.  The plaintiff's complaint alleged that the department was instructed to release some of the levied funds, and instead released all of them.  The trial court sustained the defendant's demurrer on the grounds that the complaint failed to identify the specific public employees who were negligent and the suit was barred on its face by the litigation privilege in Civil Code section 47, subdivision (b).  The appellate court held that the plaintiffs did not have to identify the specific negligent defendants at the pleading stage.  But it agreed that release of the levied funds was closely connected to the litigation process, and so immunized from suit under section 47, subdivision (b), along with Government Code section 815.2, subdivision (b).

In Deciding Whether Prison Healthcare Provider Is Deliberately Indifferent to Prisoner's Medical Needs, Jury May Consider the Resources Available to the Provider

In Peralta v. Dillard, published January 7, 2013, a divided Ninth Circuit Court of Appeals panel affirmed a jury verdict in favor of a prison dentist accused of violating the plaintiff prisoner's 8th Amendment rights by failing to timely and completely treat the plaintiff's dental problems.  The district court instructed the jury that whether the dentist met his duties to the plaintiff under the 8th Amendment had to be considered within the context of the personnel, financial, and other resources available to the dentist; and that the dentist was not responsible for failure to provide services he was unable to provide due to insufficient resources.  The majority affirmed this instruction as stating the law correctly.  While a public entity sued for violating 8th Amendment rights cannot assert lack of resources as a defense, an individual defendant should not be held liable for failure to provide care the defendant could not provide.  A dissenting judge asserted that lack of resources should not be a defense to alleged deliberate indifference to a prisoner's medical needs.