Government Liability Update

Ninth Circuit Panel Splits on Whether Corrections Officer Entitled to Qualified Immunity for Administrative Segregation of Complaining Inmate

In Shepard v. Quillen, published October 26, 2016, a divided 9th Circuit panel reversed summary judgment granted to a California corrections lieutenant in a state prisoner's retaliation claim under 42 U.S.C. section 1983.  The prisoner told the lieutenant that another officer had roughed him up.  The lieutenant offered to "maybe . . . work something out" and suggested the prisoner recant his statement.  The inmate went forward with his complaint.  That day he was transferred to an administrative segregation unit, where he remained for three months.  The inmate sued the lieutenant, alleging that the segregation was retaliation for reporting the other officer.  The officer contended that he acted properly, or alternatively was entitled to qualified immunity, because a California prison regulation, Cal. Code Regs. tit. 15, section 3335(a), provided that an imate "shall be immediately removed from general population and be placed in administrative segregation" when his presence in the general population presents an immediate threat to the safety of the inmate or others, endangers institutional security, or jeopardizes an investigation of an alleged serious misconduct.

The panel majority held that genuine issues of material fact barred summary judgment.  The regulation could not be interpreted, as the lieutenant contended, to require that all prisoners who allege serious staff misconduct be administratively segregated.  An official must determine whether one of the concerns addressed in the regulation apply to a complaining inmate before deciding whether to segregate the inmate.  The proximity in time between the complaint and the segregation, the offer to "work something out" and suggestion to recant the accusation, and the statement on a form that the segregation was for disciplinary purposes raised genuine issues of fact over whether the segregation was retaliatory.  The segregation would potentially chill inmate reports of misconduct.  That a review committee later upheld the segregation did not address whether the motive for the segregation was retaliation.  Since there was virtually no evidence that the inmate needed to be transferred to protect himself or an investigation, and the regulation could not reasonably be interpreted as requiring segregation of all complaining inmates, issues of fact defeated qualified immunity.

The dissenting judge opined that the lieutenant acted reasonably in interpreting the regulation to require under the circumstances that the prisoner be segregated.  Deciding otherwise entangled the court in the day-to-day management of the prison.

Award of Private Attorney General Fees Requires Proof That Financial Cost of the Litigation Outweighs Its Potential Financial Benefits to Plaintiff

In Millview County Water District v. State Water Resources Control Board, published October 26, 2016, the First District Court of Appeal, Division 1, vacated a trial court decision granting the plaintiffs in the case attorney fees under the private attorney general fee statute, Code of Civil Procedure section 1021.5. The plaintiff water district bought a water rights claim for $2.1 million shortly before the defendant Board issued a cease and desist order that would have restricted water diversion under the claim.  The district and the sellers of the claim jointly prevailed on a writ of mandate action challenging the order.  They sought their attorney fees under section 1021.5, arguing that because they stood to gain no money judgment from the action, the cost of the litigation outweighed the benefits to them.  The trial court found that the action was a "financial burden" upon the plaintiffs, and granted them fees.

The court of appeal held that no substantial evidence supported the trial court's finding that the plaintiffs lacked a sufficient financial incentive to justify challenging the cease and desist order.  An award of fees under section 1021.5 requires that the cost of the claimant's legal victory transcend his personal stake in the matter.  If the order had remained in place, the sellers would have been limited under their sales contract to retaining the down payment of around $500,000, forfeiting the other $1.6 million due if no governmental order was entered limiting diversion of water under the claim.  The purchaser, the District, risked having the asset for which it paid the $500,000 down payment rendered useless.  Protecting what the plaintiff has is a sufficient financial incentive to pursue litigation without the need of a section 1021.5 "bounty."

Plaintiff's Failure to File Amended Complaint until Two Days after Deadline, Based on Calendaring Error, Was Excusable Neglect; District Not Entitled to Fees under CPRA

In M.D. v. Newport-Mesa School Dist., published October 19, 2016, the Ninth Circuit Court of Appeals reversed a district court decision dismissing a plaintiff's lawsuit for failure to file an amended complaint on time.  The plaintiffs were a student and parent who sued the school district for alleged retaliation.  After the district moved to dismiss the FAC, the plaintiffs voluntarily dismissed  two claims (including a California Public Records Act claim).  The district court then dismissed the remaining claim, but granted 30 days' leave to amend.  The order was originally calendared on the CMF/ECF efiling system as made "in chambers."  Two days later, a notice of clerical error was entered and the same order was redocketed as a separate entry.  Plaintiffs' counsel, who did not customarily practice in the federal courts, erroneously calendared the 30 days as running from the correction of the clerical error.  The plaintiffs therefore did not file within the 30 days.  The day after the 30 days ran, the district filed a proposed judgment of dismissal.  The plaintiffs filed their second amended complaint the next day.  The district court nevertheless dismissed the case for failure to amend within the time allowed.  The plaintiffs moved for relief under Fed. R. Civ. P. 60(b)(1) based on excusable neglect.  The district court denied the motion.

The Ninth Circuit ruled that the district court abused its discretion by denying the motion.  A 60(b)(1) motion requires that the court consider at least four factors: (1) the danger of prejudice to the opposing party; (2) the length of the delay and its potential impact on the proceedings; (3) the reason for the delay; and (4) whether the movant acted in good faith.  The district court addressed only the third factor, finding the reason for the delay insufficient.  The defendant would not be prejudiced by granting relief; the length of delay was minimal; there was no evidence the movant acted in bad faith; and the calendaring error was excusable neglect.

The district court also denied the district's motion for attorney fees for the dismissal of the CPRA request. The appellate court held that the district court properly denied the request.  The CPRA claim was not frivolous when brought, and the plaintiff eventually dismissed it. 

Minor Student Need Not Present Claim to Sue School District for Negligently Failing to Prevent Fellow Students from Sexually Harassing Her

In A.M. v. Ventura Unified School District, published October 12, 2016, the Second District Court of Appeal reversed summary judgment granted to the defendant school district.  The plaintiff alleged that when she was a second grade student, fellow students sexually abused her.  She sued the school district, alleging negligent failure to prevent the sexual abuse.  She did not present a claim to the school district.  She relied on Government Code section 905, subdivision (m), which excludes from the claim-presentation requirement claims for childhood sexual abuse under Code of Civil Procedure section 340.1.  The trial court concluded that section 340.1 did not apply to the plaintiff's allegations, and that it applied only to sexual abuse by an employee, volunteer, representative, or agent of the defendant.

The appellate court rejected the trial court's reasoning.  Government Code section 905, subdivision (m), exempts from the claim-presentation requirements any cause of action for childhood sexual abuse under Code of Civil Procedure section 340.1.  The court interpreted section 340.1 as applying to sexual abuse of a child by fellow children.  The language about sexual abuse by an employee, volunteer, etc. was set forth in an exception to the statute of limitations in section 340.1, which generally cut off suits after the plaintiff's 26th birthday.  Since the plaintiff was under 26, the exception was not at issue.  The court rejected the plaintiff's argument that section 340.1 applied only to suits by adults for childhood sexual abuse.  It further ruled that because the plaintiff's allegations fell under one of the Penal Code sections described in section 340.1's definition of sexual abuse, the plaintiff had alleged that she suffered sexual abuse and section 340.1 applied.  The plaintiff therefore did not have to present a claim to the District before suing it for alleged negligence in allowing the abuse to occur.