Government Liability Update

Social Workers Entitled to Qualified Immunity for Removing Newborn from Drug-Using Mother without Warrant, but County May Be Liable for Policy of Not Obtaining Warrants

In Kirkpatrick v. County of Washoe, published December 9, 2016, the 9th Circuit Court of Appeals, sitting en banc, affirmed in part and reversed in part summary judgment in favor of defendants sued by an infant child and her father under 42 U.S.C. section 1983. The infant was born prematurely by cesarean section.  The mother admitted she used methamphetamine throughout her pregnancy.  The infant tested positive for meth.  The mother had two other children who were in the custody of social services.  A court had approved a plan to terminate the mother's parental rights for the older children.  Social services put a hold on the newborn to prevent her from being discharged.  The mother was still permitted to interact with the newborn.  The mother failed to feed the infant on a schedule or to change her diapers.  The plaintiff father was present at the time of the birth.  He had been told by the mother that he might be the father.  He left town soon after the birth.  Two days after the infant's birth, the hospital discharged her into social services's care.  Social services did not attempt to obtain a warrant before assuming custody.  Later, the plaintiff was adjudged the father, and eventually obtained custody of the infant.  He and the infant sued the county and the social workers involved for removing the child from the hospital without a warrant.  The district court granted summary judgment, determining that only the father had raised claims and that he had failed to show that his constitutional rights were violated.

The majority decision of the en banc panel affirmed summary judgment on behalf of the social workers, but reversed it as to the county.  The panel determined that the suit asserted the rights of both the father and the infant.  The court ruled that the father failed to show that any of his 4th or 14th Amendment constitutional rights were violated, because he had no parental relationship with the newborn when she was taken.  His biological relationship alone was insufficient.  The panel determined that there was a material issue of fact on whether the infant's 4th Amendment rights had been violated.  Removal of a child without a warrant is constitutionally permitted only when the child would be in imminent danger during the time that obtaining a warrant could take.  Since the infant and mother were in the hospital, the mother was recovering, and the hospital had a hold on discharging the child, a jury could determine that a warrant was necessary.  But the workers were entitled to qualified immunity, because no published case had established that no imminent danger was present under the circumstances the workers faced.  On the other hand, there was a triable issue of fact on whether the county could be held liable for failure to train.  The county did not train its workers that they needed a warrant to remove children from parents, and as a practice did not use warrants.  Although a pattern of constitutional violations is usually necessary to show an unconstitutional failure to train, this was one of the rare situations were a single instance was sufficient.

There were multiple concurring and dissenting opinions in the decision.

Litigation Privilege Immunizes Public Entity for Its Doctor's Release of School Bus Driver's Medical Information to DMV for Safety Purposes

In McNair v. City and County of San Francisco, published November 22, 2016, the First District Court of Appeal, Division 4 affirmed summary adjudication and nonsuit in favor of the defendant city/county and a doctor employed by the city/county's Department of Public Health.  When the doctor learned her patient, a commercial driver, would be driving school busses, the doctor wrote the DMV and disclosed--against the patient's wishes-- that the driver had been diagnosed with Cognitive Disorder NOS, functional illiteracy, a personality disorder, impulsiveness, and poor judgment.  She wrote out of concern for the patient's safety and the safety of the public.  The DMV revoked the driver's commercial license.  The patient obtained reinstatement of his license through administrative hearings, but lost his job.  He sued the city/county and doctor for intentional tort and breach of contract for releasing his information, allegedly in violation of medical privacy laws.  The trial court granted summary adjudication on the intentional tort cause of action, and nonsuit on the breach of contract cause of action.

The appellate court ruled that because the doctor's disclosure of the information to the DMV was protected by the litigation privilege of Civil Code section 47, subdivision (b), the trial court's rulings were correct.  The litigation privilege applies to both intentional torts and breach of contract causes of action.  The elements of the immunity were met:  It was a communication in a quasi-judicial proceeding, made by a person authorized by law to communicate with the DMV concerning the patient's ability to drive, it was written to achieve the objects of the litigation (considering the patient's ability to drive), and it had a logical relation to the action because it prompted hearings regarding the patient's driving ability.  The privilege did not conflict with statute.  Instead, statutory law provided for reporting the information for the purpose of public safety, and the law concerning medical information privacy allows disclosures as required by law.

Compliance with the Statutory Claim-Presentation Requirements May Be Generally Pleaded

In Esparza v. Kaweah Delta District Hospital, published September 21, 2016, the Fifth District Court of Appeal reaffirmed its decision in  Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228 that a plaintiff may allege compliance with the claims presentation requirement in the Government Claims Act by including a general allegation that the plaintiff complied with the claims statute.  The court reversed dismissal of an action after the defendant hospital district's demurrer to the plaintiff's medical malpractice complaint was sustained.  The defendant alleged that the California Supreme Court's decision in DiCampli-Mintz v. County of Santa Clara (2012) 55 Cal.4th 983 had impliedly overruled Perez.  The appellate court concluded that nothing in DiCampli-Mintz either addressed Perez's holding or addressed the standards for pleading claim compliance.  

The court concluded that the plaintiff adequately pleaded compliance with the claim statutes by checking the boxes on the Judicial Council complaint form stating that the plaintiff was required to comply with a claims statute and had complied.  That adequately pleaded the ultimate fact that the plaintiff had complied.  The plaintiff was not required to specifically plead the method of service used to present the claim, or whether the defendant rejected the claim or was deemed to have rejected it.  The plaintiff's additional allegation, that she had served a claim on the hospital pursuant to Government Code section 910 et seq. "on or about December 3, 2014" was neither ambiguous nor inconsistent with the general allegation of compliance.

Public Employee's Discrimination/Retaliation Action Not Subject to Anti-SLAPP Special Motion to Strike Merely Because It Involves Protected Communication

In Nam v. Regents of University of California, published July 29, 2016, the Third District Court of Appeal affirmed the denial of the defendant's Anti-SLAPP special motion to strike.  The plaintiff, a resident in the UC Davis Medical Center's anesthesiology department, alleged she was retaliated against for an e-mail she sent criticizing the department's policy on allowing resident to intubate patients, and for resisting the program director's alleged sexual advance.  The defendant contended that the alleged retaliation--written warnings to the plaintiff, investigations into her based on complaints received, and a written notice of termination--were acts protected by the First Amendment, and her suit was therefore a SLAPP suit.  The appellate court concluded that the gravamen of the plaintiff's suit was not an attack on protected activity, but rather alleged harassment and retaliation.  The action was therefore not a SLAPP suit.  If the rule were otherwise, most harassment and retaliation claims by public employees against public entities would be subject to anti-SLAPP motions to strike.  Although the defendant's claims might succeed at summary judgment, they were not a ground for attacking plaintiff's lawsuit at the pleading stage.

Prison Officials Entitled to Qualified Immunity for "Watchful Waiting" Treatment of Prisoner's Hernia

In Hamby v. Hammond, published May 2, 2016, the 9th Circuit affirmed a district court decision granting prison officials summary judgment in a prisoner's lawsuit accusing them of violating his 8th Amendment rights by deliberate indifference to his serious medical needs.  The prisoner suffered an umbilical hernia. Over the next year and a half, he was seen by multiple medical professionals who opined he could be treated by monitoring, or "watchful waiting," without surgery.  He was treated in this manner until he filed a lawsuit under 42 U.S.C. section 1983, alleging the lack of surgery violated his rights under the 8th Amendment.  He obtained a preliminary injunction ordering referral to a surgeon, who ultimately performed the surgery.  He continued the suit, seeking damages for the pain he suffered before surgery.  

Two of the three judges who ruled on the case concluded that the district court properly granted summary judgment, because the officials were entitled to qualified immunity.  The same standard of qualified immunity applies to 8th Amendment cases as applies to other constitutional-right cases:  Viewing the evidence in the light most favorable to the plaintiff, at the time the prison officials acted was it beyond debate that their conduct violated the Constitution?  If the answer is "no," the officials are entitled to qualified immunity.  In a medical deliberate-indifference action, the question is whether, given existing case law at the time, it was beyond debate that the prison officials pursued a medically unreasonable course of treatment by declining to provide the plaintiff the medical treatment he sought.  A difference of medical opinion is insufficient to raise a triable issue of fact on that issue. The defendants presented expert opinion that the treatment of the plaintiff's hernia was appropriate.  The plaintiff presented contrary medical evidence.  Case law demonstrated that non-surgical treatment of a reducible hernia was not indisputably unconstitutional in circumstances like these.  The officials were therefore entitled to qualified immunity.

A dissenting judge opined that evidence the prisoner's many complaints were not properly examined raised a triable issue of fact on deliberate indifference.

Court Has No Authority to Order Mental Examination of Parents as Part of Mental Examination of Minor Plaintiff

In Roe v. Superior Court (Hollister School Dist.), published December 18, 2015, the Sixth District Court of Appeal issued a writ reversing a trial court's order permitting a psychiatrist to interview the parents of a minor plaintiff who alleged that another minor student had molested him at school.  The minor sued the school district, through his father as guardian ad litem.  The minor's mother was also a plaintiff.  The school district had moved the court for an order permitting the mental examination of the plaintiff under Code of Civil Procedure section 2032.020, to include interviews of the parents by the examining psychiatrist.  

 

The court held that under Section 2032.020's language, a court has no power to permit the mental examination of a minor party's parents as part of the minor's mental examination.  The statute permits a court to order the mental examination of a party to the action, an agent of the party, or a natural person in the custody or under the care of a party.  Although the mother was a party, she was not a party for purposes of this order, which sought a psychiatric examination of only the minor plaintiff.  The guardian ad litem is not a party.  Neither parent is the minor plaintiff's agent, or is in the minor's custody or control. Therefore, the trial court could not order their interviews.

The appellate court declined to decide two other issues--whether the parents had a right to be present for the examination, and whether the plaintiffs had a right to production of copywritten testing materials--on procedural grounds.

Physician Not Entitled to Qualified Immunity for Allegedly Coercing Parents to Leave Baby at Hospital Unnecessarily So That She Can Investigate for Child Abuse

In Jones v. County, published September 21, 2015, a divided panel of the 9th Circuit Court of Appeals affirmed a district court decision denying a physician's motion for summary judgment based on qualified immunity.  The physician, the medical director of a public hospital's Suspected Child Abuse and Negligence team, became concerned when a baby who had been brought to the hospital with injuries from falling down stairs, released, and then brought back with rib fractures, had sustained the rib fractures through abuse.  She asked the parents to bring the baby back to be hospitalized for tests, even though the tests could be conducted on an out-patient basis.  When the parents grew concerned, the physician enlisted others to persuade the parents to "play ball" and that if they did not the baby could be detained.  When the baby was checked in, the doctor stationed a "sitter" in the room so that the parents would not be alone with the child.  The parents eventually sued the doctor for violating their constitutional liberty rights to their child.

The majority held that the doctor was not entitled to qualified immunity, because the evidence, viewed in the light most favorable to the parents, showed that a reasonable physician in the plaintiff's position would have known that she was detaining the baby, without a warrant or reasonable cause; and that doing so would violate the parents' 14th Amendment Due Process rights and their 4th Amendment right to be free from unreasonable searches and seizures.  Although existing case law looked at the standards for social workers and police officers detaining children without a warrant or reasonable cause, the court determined that, viewing the facts in the light most favorable to the plaintiffs, the physician was acting as an investigator, not a physician.  

The court also rejected the doctor's arguments she was entitled to summary judgment on the state law claims based on statutory immunity.  The Reporter's Privilege under Penal Code section 11172(a) did not apply, because of the evidence that the doctor was usurping the authority of the Department of Children and Family Services regarding the baby.  Government Code section 820.2 immunity did not apply, because no statute gave the physician discretion to act as she allegedly did.

Deference-to-Security Instruction Inappropriate in 8th Amendment Healthcare Case Unless Security Policy Connected with Treatment Claims

In Chess v. Dovey, published June 25, 2015, the 9th Circuit Court of Appeals held that a district court erred in giving the Ninth Circuit Model Jury Instruction for a Prisoner's Claim for Conditions of Confinement/Medical Care; but ruled the error harmless.  The plaintiff, a pro se prisoner, complained that prison medical staff members were deliberately indifferent to his medical care when they made various medication decisions, including denying him methadone.  Although there was evidence at trial that a security policy limited use of methadone in the prison, all of the evidence indicated plaintiff was denied methadone for medical reasons.  The defendants proposed that the Model Jury Instruction be given.  In addition to instructing the jury on the elements of deliberate indifference, it told the jury to give deference to prison officials in the adoption and execution of policies and practices that in their judgment are needed to preserve discipline and maintain security.  The judge expressed misgivings about this instruction, but the pro se prisoner did not object to it.  The jury returned a defense verdict.

The court ruled that it would consider whether the instruction was erroneous despite the lack of objection, since under the circumstances (where the prisoner was pro se and the judge was on notice of the instruction's problems) requiring an objection would be a needless formality.  The court further ruled that the instruction, which applies a standard conditions-of-confinement requirement to defer to security policies, should not apply in medical care cases unless there is evidence that the treatment to which the plaintiff objects was provided pursuant to a security-based policy.  That was not the case here.  But since the medical evidence indicated that the treatment was appropriate, the court affirmed the defense verdict.

Freezing Inmate Trust Funds to Pay for Cost of Incarceration Requires Pre-Deprivation Hearing, But Does Not Violate Eighth Amendment

In Shinault v. Hawks, published January 22, 2015, the Ninth Circuit Court of Appeals affirmed summary judgment in favor of Oregon state corrections officials in a 42 U.S.C. section 1983 lawsuit a prisoner brought alleging that the officials violated his 14th Amendment Due Process and 8th Amendment rights by freezing approximately $60,000 in the plaintiff's inmate trust account.  The plaintiff had received a settlement of more than $100,000 from a medical liability claim against a drug manufacturer whose products had caused him diabetes.  His counsel deposited the money in plaintiff's inmate trust account.  The department of corrections issued an order requiring the plaintiff to pay the estimated cost of his current and previous incarceration.  The plaintiff requested a case hearing contesting the order.  On the day that he did, the department transferred the estimated amount out of his trust account aind into a sub-account in his name.  Plaintiff could not access the sub-account.  At the hearing, the administrative law judge ultimately ordered the plaintiff to pay a smaller amount than the amount the department had frozen.

The Ninth Circuit held that the department should have given the plaintiff a pre-deprivation hearing before freezing the amounts.  Depriving a person of a property interest usually requires a predeprivation hearing, unless circumstances requiring speed are present.  Here, there was no reason for speed.  The court held that as long as the plaintiff had notice and a chance to object, the department had discretion on what type of pre-deprivation procedure to provide.  (California law provides for a pre-deprivation proceeding before inmate trust funds are used to reimburse the state for incarceration costs.)  The court nevertheless affirmed summary judgment.  Because no settled law established the right to a predeprivation hearing under these circumstances, the officials were entitled to summary judgment.

The court also affirmed summary judgment on the 8th Amendment claim.  The plaintiff argued that he was going to use the settlement proceeds for medical care after release, and that freezing and withdrawingthe funds deprived him of medical care.  While the state is required to provide inmates with diabetes care during incarceration, and sometimes during a transitional period following release, this right does not shield an inmates assets because they could potentially be used for medical care after release.

Officers May Be Held Liable for Forced Anal Search of Arrestee Who Hid Baggie of Cocaine

In George v. Edholm, published May 28, 2014, the 9th Circuit Court of Appeals reversed in part and affirmed in part summary judgment granted to two police officers.  While the plaintiff arrestee was being strip-searched, he allegedly faked a seizure and inserted a baggie of cocaine base into his rectum.  Paramedics took the arrestee to a hospital, where a doctor forceably removed the baggie with forceps, sedated the arrestee, and administered laxative to him.  The experience allegedly caused him pain and bleeding.  There was conflicting evidence on whether the officers told the doctor that the plaintiff had swallowed cocaine, and on the danger of the baggie breaking.  The plaintiff sued the officers under the 4th Amendment, for an unreasonable seizure, and under the 14th Amendment, for violating his due process right to refuse medical treatment.

The 9th Circuit held that the district court erred in granting summary judgment on the 4th amendment cause of action.  Because there was evidence the doctor acted at the request of police and with their assistance, there was an issue of fact on whether the doctor's actions could be imputed to the police officers for 42 U.S.C. section 1983 purposes.  There were also triable issues of fact over whether the search was unreasonable in light of its highly intrusive nature, the conflicting evidence on whether the baggie would rupture, the possibility of obtaining the evidence by simply monitoring bowel movements, and the conflicting evidence of whether the officers gave false information to the hospital.  In light of the clearly-established law governing intrusive bodily examinations, the officers were not entitled to summary judgment based on qualified immunity.  The officers were, however, entitled to summary adjudication of the 14th Amendment cause of action.  Because there was no established law finding a 14th Amendment violation under circumstances like those here. the officers' conduct did not violate clearly-established rights.