Government Liability Update

Municipality That Confesses Error in Response to Petition for Writ of Mandate May Be Deemed "Opposing Party" under Private Attorney General Statute

In Animal Protection League v. City of San Diego, published May 27, 2015, the Fourth District Court of Appeal, Division 1, affirmed (with modifications)  a trial court decision awarding petitioners for a writ of mandate attorney fees under Code of Civil Procedure section 1021.5, the Private Attorney General Statute, against the city appellant.  The petitioners petitioned the trial court for a writ of mandate challenging a city planning commission decision denying a permit.  The city filed an answer in which it confessed error and conceded that the planning commission erred in denying the permit.  The answer stated that it did not oppose lawful writ relief.  When the petitioners moved for entry of judgment, the city filed a nonopposition to the motion.  

Section 1021.5 provides that a court may award attorneys fees to a successful against "one or more opposing parties" in an action that has resulted in the enforcement of an important right affecting the public interest.  Interpreting the statute de novo, the appellate court concluded that a municipality that does not contest liability may nevertheless be an "opposing party," defining "opposing party" as the party against whom the suit is brought.  Since, under the catalyst theory, private attorney general fees may be awarded even when litigation does not result in a judicial resolution if the defendant changes its behavior because of the litigation, fees should be awarded when an entity confesses error in response to litigation.

Although Design of Jail May Be Policy Choice by Public Entity Sufficient for Monell Liability, Actual Knowledge of Substantial Risk Must Be Proven

In Castro v. County of Los Angeles, published May 1, 2015, a divided panel of the 9th Circuit Court of Appeals affirmed in part and reversed in party a jury verdict in a 42 U.S.C. section 1983 action against the defendant county and two deputies arising out of an inmate's injuries at the hands of another inmate when both were placed in a sobering cell.  The court affirmed the jury verdict against the deputy who placed a violent inmate in the cell with the plaintiff and the deputy who allegedly failed to respond to the plaintiff pounding on the cell door or a volunteer's statement to the deputy that the violent inmate was inappropriately touching the plaintiff.  Whether the deputies violated the inmate's due process rights by being deliberately indifferent to a known risk of substantial harm was a question of fact. The court also affirmed the jury's award of punitive damages against the inmates, holding that a finding of deliberate indifference was indistinguishable from the finding of "reckless disregard" necessary to support an award of punitive damages.

But the majority ruled that the jury's verdict holding the county liable was reversed.  To find Monell liability against an entity defendant, the plaintiff must prove that the entity's custom or policy violated the plaintiff's constitutional rights and injured him.  The county's choice of the jail cell's design was a policy decision for purposes of Monell liability.  But the plaintiff failed to prove that the county's choice of that design was deliberately indifferent to a known substantial risk of inmate harm.  The existence of a state regulation regarding sobering cell design at most might establish constructive notice, which is insufficient for deliberate-indifference liability.  A concurring judge opined that the jail cell's design was insufficient ground for finding a policy under Monell, and a dissenting judge opined that the plaintiff had proven deliberate indifference.

Jury Incorrectly Instructed to Give Deference to Prison Officials in Determining Whether Prisoner's Equal Protection Clause Rights Violated

In Harrington v. Scribner, published May 7, 2015, a divided 9th Circuit Court of Appeals panel affirmed in part and reversed in part a jury's decision against a pro se inmate who sued prison officials for allegedly violating his rights under the Eighth Amendment and the Equal Protection Clause of the Fourteenth Amendment.  Corcoran Prison imposed a lockdown on African-American inmates, which required them to wear only boxer shorts and shower shoes and be handcuffed while being escorted to the shower.  The plaintiff asked to wear less slippery footwear.  His request was refused.  While being escorted, he slipped in a pool of water and was injured.  The district court denied his request for counsel.

The 9th Circuit panel unanimously affirmed the district court's exercise of its discretion in denying the inmate counsel.  It also unanimously affirmed the district court's Eighth Amendment deliberate-indifference jury instructions, which required the plaintiff to prove that a defendant faced a substantial risk of serious harm and disregarded the risk by failing to take reasonable measures to correct it.  The court properly refused the plaintiff's additional instruction that knowledge can be demonstrated if the risk was obvious; actual knowledge must be proven.

But the majority reversed the verdict on the plaintiff's Equal Protection claim, based on incorrect jury instructions.  The court properly instructed the jury that the state may take race-based action when necessary to further a compelling government interest if the action is narrowly tailored to serve that interest.  But it then improperly instructed the jury that the defendants had a competing obligation under the Eighth Amendment to protect prisoners from each other and maintain security, and that the jury should give deference to the prison officials' opinion in their adoption and execution of policies and practices to ensure discipline and security.  The deference standard that applies to Eighth Amendment claims should not be applied to Fourteenth Amendment Equal Protection Clause claims.