Government Liability Update

Although Enforcement of California Medical Waste Statute on Disposal of Waste outside California Violates Dormant Commerce Clause, Officials Entitled to Qualified Immunity for Enforcement Decision

In Daniels Sharpsmart v. Smith, published May 2, 2018, the 9th Circuit Court of appeals affirmed a district court decision to issue a temporary restraining order against the California Department of Public Health's enforcement of the California Medical Waste Management Act, but reversed denial of the department's officials' motion to dismiss based on qualified immunity.  The plaintiff is an Illinois corporation that handles transport and treatment of medical waste.  The corporation does business in California, and is regulated under the MWMA. Under the MWMA, California generated medical waste generally must be incinerated.  The plaintiff transported waste generated in California to other states, where means of disposal other than incineration are allowed.  The Department took the position that the MWMA governed the plaintiff's disposal of medical waste in other states.  The Department issued a notice of violation and imposed a monetary penalty on the plaintiff.  The plaintiff sued the Department officials in federal district court, and obtained a TRO against enforcement of the MWMA on disposal of waste out of state.

The 9th Circuit upheld the TRO.  It agreed with the district court that the plaintiff was likely to prevail on his claim that the enforcement of the MWMA on disposal of waste outside California violated the Dormant Commerce Clause, the interpretation of the Commerce Clause to bar states from unjustifiably burdening interstate commerce.  But the officials were entitled to qualified immunity against any damages liability for enforcing the statute.  The law was not clearly established that enforcement of the MWMA on disposal of medical waste generated inside California, but disposed of outside California, was unconstitutional.

Deliberate Indifference Standard for Inadequate Medical Care to Pretrial Detainees Is Objective, Not Subjective

In Gordon v. County of Orange, published April 30, 2018, the 9th Circuit Court of Appeals reversed summary judgment granted to defendants in a 42 U.S.C. section 1983 lawsuit arising from the death of a pretrial detainee in county jail.  The decedent was arrested on heroin-related charges.  The intake nurse allegedly failed to use an assessment sheet for opiate withdrawal symptoms.  Various defendants allegedly failed to properly observe the decedent.  The district court granted the individual defendants summary judgment on the ground that a section 1983 claim for inadequate medical care required the plaintiff to prove the defendants were subjectively deliberately indifferent, and there was insufficient evidence of that.  It also granted the county summary judgment, finding no custom or practice that violated the constitution.

The 9th Circuit ruled that the district court applied the improper standard.  Previously, the 9th Circuit had used a subjective deliberate indifference standard for inadequate medical care claims both for prisoners held after trial (under the Eighth Amendment's cruel and unusual punishment standard) and before trial (under the Fourteenth Amendment's substantive due process standard).  But recent Supreme Court and 9th Circuit law suggested a different standard should apply to pretrial detainees.  The 9th Circuit therefore concluded that an objective deliberate indifference standard applies to pretrial detainees.  To prove a pretrial detainee claim for inadequate medical care, the plaintiff must prove (i) the defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; (ii) those conditions put the plaintiff at substantial risk of suffering serious harm; (iii) the defendant did not take reasonable available measures to abate that risk, even though a reasonable official in the circumstances would have appreciated the high degree of risk involved—making the consequences of the defendant’s conduct obvious; and (iv) by not taking such measures, the defendant caused the plaintiff’s injuries.  Because the district court applied the incorrect standard, the summary judgment in favor of both the individual defendants and the county was reversed.

Prison-Injury Suit Filed by Former Inmate After Release Not Subject to Prisoner Complaint Screening Rule

In Olivas v. State of Nevada, published May 19, 2017, the 9th Circuit Court of Appeals reversed the dismissal with prejudice of a lawsuit filed by a former inmate.  The plaintiff alleged that while he was in prison, prison officials violated his Eighth Amendment rights by shooting him with shotgun pellets during a riot and then showing deliberate indifference to his need for medical care.  He also asserted causes of action under Nevada state law.  He filed the suit pro se in state court.  After he retained counsel, he amended the complaint.  The defendants removed the case to federal court.  The federal district court screened the case under 28 U.S.C. section 1915A, which provides for the district court to screen inmate complaints and dismiss those that fail to state a claim or that seek damages from an immune defendant.  The court dismissed the federal claims in the complaint without prejudice.  The plaintiff filed an amended complaint.  The court again screened the complaint, and dismissed the federal claims with prejudice, denying further leave to amend.  It declined to exercise jurisdiction over the state law claim.

As a matter of first impression, the 9th Circuit ruled that a former prisoner who was released from custody before he filed a complaint about events that occurred in prison is not a "prisoner" for purposes of 28 U.S.C. section 1915A.  The district court therefore may not screen or dismiss the complaint under that statute.  In dictum, the 9th Circuit also noted that the district court applied an incorrect analysis in screening the lawsuit, and erred by denying leave to further amend the complaint.

Because Police Had Probable Cause to Detain Teacher under Welfare and Institutions Code section 5150, They Cannot Be Held Liable for the Detention

In Julian v. Mission Community Hospital, published May 2, 2017, the Second District Court of Appeal, Division 7 affirmed summary judgment in favor of Los Angeles Unified School District, the Los Angeles Unified School Police, five police officers, and a private hospital in a lawsuit brought by a school teacher.  The teacher complained to the principal that another teacher "physically assaulted" her by grabbing her hand as she tried to clsoe a door.  Another teacher texted the principal that the teacher "wants to slit her wrists" concerning some recent changes at the school. The teacher had scratches on her arms that the teacher had told the principal were caused by her cats.  Officers of the school police approached the teacher to interview her about the alleged assault.  The teacher responded by running down a hallway, dropping to the floor, and crying and screaming.  The officers called paramedics, who strapped the teacher to a gurney as she resisted. She was taken to the hospital, where an officer gave the hospital a Welfare and Institutions Code 5150 detention application.  The hospital determined that the teacher should be detained.  She was examined and released the next day.  She sued the defendants for violations of the Lanterman-Petris-Short Act (Welfare and Institutions Code sections 5000 et seq), violation of her civil rights under 42 U.S.C. section 1983 and the California Constitution, and false imprisonment.  The trial court granted the school defendants summary judgment, and sustained the hospital's demurrer.

The appellate court rejected the plaintiff's theory that the Lanterman-Petris-Short Act created any cause of action for damages that would apply.  Portions of the Act create limited causes of action for damages, none of which applied here.  The other portions did not satisfy any of the tests for whether a statute creates a cause of action for damages.  That portions of the Act do specifically provide causes of action indicates that the Legislature did not intend the other portions to create additional causes of action.

As to plaintiff's 42 U.S.C. section 1983 claim, neither the school district nor its police department could be sued under section 1983 because the school district is an arm of the state, and the district's police department was a division of the district.  Therefore, neither was a "person" under section 1983.  Further, the plaintiff failed to show that either had any unconstitutional custom, policy or practice that led to her detention.  The plaintiff alleged that the police officer defendants violated her rights under the First Amendment, Fourth Amendment, and Ninth Amendment.  No facts showed any violation of the plaintiff's First Amendment rights.  The plaintiff failed to persuade the court that a "right to be properly cared for by physicians" existed under the Ninth Amendment; and in any event such a right would not apply to the police defendants.  The Fourth Amendment claim failed because the undisputed facts established that the officers had probable cause because the officers, as lay persons, could articulate behavioral symptoms of mental disorder that the plaintiff displayed:  thought processes, as evidenced by words or actions or emotional affect, that are bizarre or inappropriate.  The issues of fact the plaintiff sought to raise--such as her contention that her cats made the scratches on her arms--did not undermine the facts that established probable cause.  Her allegations of civil conspiracy between the school police failed because a conspiracy requires an underlying constitutional violation, and she failed to show any.

The appellate court rejected the plaintiff's claims that the California Constitution's provisions regarding free speech, right to petition the government, due process, or equal protection created a cause of action for damages when the action is not tied to an established common law or statutory action.  The plaintiff did not allege any such action.  Whether there is a cause of action for violation of the right to privacy under the California constitution is unsettled; but the plaintiff failed to state the elements of a cause of action for invasion of privacy.  Similarly, the law is unsettled on whether the California Constitution's right against unreasonable searches and seizures creates a cause of action for damages; but if it did, the defendants would be immune from liability.  Welfare and Institutions Code section 5278 immunizes persons authorized to detain individuals under the Act if they acted with probable cause and did not commit negligent acts, intentional torts, or criminal wrongs during the course of the detention.  The police defendants had probable cause to detain the plaintiff, and there was no showing of other wrongs committed.  The plaintiff failed to show facts that would establish a violation of the Bane Act.

Finally, the appellate court ruled that the hospital defendants were not state actors for purposes of section 1983, and did not violate the California Constitution.

Peace Officers Entitled to Qualified Immunity for Use of Force on Person Preventing Emergency Care and for Search of Vehicle That Is Possible Suicide Site

In Ames v. King County, Washington, published January 13, 2017, the 9th Circuit Court of Appeals reversed a district court decision denying qualified immunity to sheriff's deputies responding to the scene of an attempted suicide.  The plaintiff found her adult son at their house unresponsive and with a suicide note.  She called 911.  A sheriff's deputy responded along with a firefighter/EMT crew.  The plaintiff refused to allow the deputy to enter.  The deputy ordered the emergency crew to leave the house.  As the deputy and EMTs were in their vehicles outside the residence, the mother took the son out of the house and put him in her truck to transport to the hospital.  The deputy blocked the truck with her patrol car, and yelled for the mother to allow the EMTs to treat the son.  When the mother refused, the deputy pulled her out of the car using pain compliance techniques and handcuffed her.  When a backup deputy arrived, he understood the truck to be a possible attempted suicide site, and searched it. The son survived. The district court denied the deputies qualified immunity against the plaintiff's excessive force and illegal search claims under 42 U.S.C. section 1983.

The 9th Circuit held that a reasonable officer could have found that the deputy's use of force was reasonable, considering that the officer was acting in an emergency response rather than law enforcement capacity and the plaintiff's actions in preventing lawful attempts to render aid to her son threatened her son's life.  A reasonable officer could also have found the search of the truck reasonable, since it was in an emergency response rather than law enforcement capacity.  The deputies were therefore entitled to qualified immunity.

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.