Government Liability Update

"Watchful Waiting" Treatment of Prisoner's Medical Problem That Was Worsening Violates Clearly Established Law

In Stewart v. Aranas, published May 4, 2022, the 9th circuit affirmed the district court's denial of qualified immunity to prison officials in a prisoner's lawsuit under 42 U.S.C. section 1983.  According to the summary of facts in the majority opinion, the prisoner complained to prison staff of severe pain when urinating and difficulties in urination.  Staff examined him, gave him generic medication, and sent him on his way.  Over the next three years, the prisoner's urethra, testicles, and abdominal areas grew inflamed.  The prisoner continued to complain to prison staff.  They did not change their treatment.  The prisoner was transferred to another facility in an eight-hour ride.  The staff at the new facility initiated emergency medical care.  A catheterization drained fourteen pounds of fluid from the prisoner's bladder and unrinary system.  He underwent prostate surgery.  He claims long-term kidney disease, erectile dysfunction, urine build up, and pain.  He sued the prison officials alleging deliberate indifference to serious medical needs.  The officials appealed denial of qualified immunity on the second prong of the immunity--the law was clearly established.

The 9th Circuit agreed that the district court properly denied qualified immunity on the second prong.  The prison officials claimed that no clearly established law barred their "wait and see" treatment plan for the prisoner's enlarged prostate.  But case law establishes that denying, delaying, or intentionally interfering with medical treatment can violated the constitution.  At some point, "wait and see" becomes deny and delay.  The prisoner's condition sharply deteriorated, yet prison officials never deviated from their "wait and see" treatment plan.  A delay in treatment can violated the constitution if it results in injury.  Further, it is clearly established that prison officials violate the constitution when they persist in a treatment known to be ineffective.

A concurring judge agreed that a reasonable prison official with awareness of a factual predicate like the one set forth in the majority opinion would have violated clearly established rights by a treatment plan of "watchful waiting."  But the judge opined the records showed a different factual predicate than the one set forth in the opinion.  Since the defendants appealed only denial of qualified immunity on the second prong, the first prong--whether the plaintiff's constitutional rights were actually violated--was not an issue on appeal.

 

Because City Allowed Public to Fly Flags at City Hall, Flag Flying Was Not Government Speech, and City Violated First Amendment by Refusing to Fly Religious Flag

In Shurtleff v. City of Boston, published May 2, 2022, a unanimous U.S. Supreme Court reversed a district court and appellate court decision that the defendant city did not violate the First Amendment by declining to fly a religious flag.  The Boston City Hall has three flagpoles.  One flies the American flag, the second flies the Commonwealth of Massachusetts flag, and the third usually flies the city flag.  For years, the city has allowed groups to hold ceremonies on the city hall plaza and fly flags of the groups' choice, without city involvement in choosing or approving flags.  The plaintiff asked to hold an event on the plaza and fly what he described as the "Christian flag"--a red cross on a blue field against a white background.  The city declined, out of concern that flying a flag that favored a particular religion at city hall would violated the First Amendment's Establishment clause.  The plaintiff sued the city, alleging violation of the First Amendment's Speech Clause.  The district court granted the city judgment, and the appellate court affirmed.

The Supreme Court held that the city had violated the plaintiff's free-speech rights.  The Free Speech Clause does not prevent the government from declining to express a view.  The question was whether flying a flag on the third flagpole was government speech or private speech.  The boundary between government speech and private expression can blur when the government invites  people to participate in a program.  In those situations, the court conducts a holistic inquiry to determine whether the government intends to speak for itself, or to regulate private expression.  The court looks to the history of the expression at issue; how the public is likely to perceive who is communicating; and the extent to which the government has actively shaped or controlled the expression.  Applying that analysis here, the court held that a government flying a flag at the seat of government is traditionally seen as government speech.  The public's perception of the flags under the circumstances did not resolve the matter.  The most salient facts were that Boston neither actively controlled the flag raisings nor shaped the messages the flags sent.  The city had never refused to fly a group's flag as part of a ceremony until it refused the plaintiff's.  This led the Court to conclude the third-party flag raisings were private, not public, speech.  The city's refusal to let the plaintiff fly the flag based on a religious viewpoint violated the plaintiff's Free Speech rights by engaging in impermissible viewpoint discrimination.  Six justices joined the majority opinion.  One of those justices, and two others, filed concurring opinions.

County Immune from Liability to Hospital under Knox-Keene Act

In County of Santa Clara v. Superior Court (Doctors Medical Center of Modesto), published April 26, 2022, the Sixth District Court of Appeal issued a writ directing a trial court to sustain the petitioner county's demurrer to the real party hospitals' complaint.  The county operates a health care plan licensed under the Knox-Keene Health Care Service Plan Act, Health & Safety Code section 1340 et seq.  The hospitals provided emergency services to members of the county's healthcare plan.  The hospitals submitted claims to the county for over $144,000, the amount the hospital alleges is the reasonable value of the services provided.  The county reimbursed the hospital approximately $28,500.  The hospitals sued the county for reimbursement.  It asserted tort and implied-in-law causes of action.  The trial court sustained the demurrer without leave to amend as to the tort causes of action, and granted leave to amend the breach of implied contract cause of action.  In the operative complaint, the hospital asserted a single cause of action alleging implied-in-fact and implied-in-law contracts with the county.  The trial court overruled the demurrer to the complaint, ruling that the hospitals stated facts sufficient to constitute a cause of action for quantum meruit or implied-in-fact contract.

The appellate court ruled that the trial court erred.  The implied-in-law contract/quantum meruit claim is barred by Government Code section 815, which immunizes public entities from liability on common law theories.  Case law establishes that section 815 bars quantum meruit actions against public entities.  The appellate court rejected the hospitals' argument that the Knox-Keene Act imposed a mandatory duty upon the county that gave rise to a cause of action under Government Code section 815.6.  Section 815.6's application requires that the enactment be obligatory, requiring that a particular action be taken or not taken; and that if the public entity or officer is under an obligation to function, that the function itself not involve the exercise of discretion.  While Health & Safety Code section 1371.4(b) imposes a duty on the county to reimburse the hospitals, the statute calls for reimbursement of the "reasonable and customary value" of the services performed.  The statute therefore gives the county discretion in the amount of reimbursement to pay.  The section therefore does not create a purely mandatory duty, and does not authorize the hospitals' implied-in-law contract cause of action.  No other statute authorizes the hospitals' action for damages.  The complaint also alleges an implied-in-fact contract.  Because Government Code section 815 does not affect liability based on contract, it does not preclude an action for breach of an implied-in-fact contract.  But the single cause of action is ultimately based on alleged breach of a noncontractual duty--the county's alleged obligation under county ordinances and the Knox-Keene Act to pay for the care and treatment the hospitals rendered.  Because the suit is based on alleged breach of statutory duty rather than alleged breach of promise, its nature is tortious and the county is immune from suit under section 815.  Because the hospitals failed to show how they could amend the complaint to save the action, they were not entitled to leave to amend.

 

 

Jail Medical Personnel Not Entitled to Qualified Immunity for Allegedly Providing Inadequate Care to Inmate Displaying Serious Cardiac Symptoms

In Russell v. Lumitap, published April 13, 2022, the 9th Circuit Court of Appeals affirmed in part and reversed in part an order denying summary judgment to medical providers at a county jail.  The decedent prisoner came to prison medical providers complaining of vomiting, chest pain, and anxiety.  The first nurse who saw him gave him Pepto-Bismol and referred him for a mental health screening.  The second nurse, who saw him at the mental health intake center, gave him a dose of nitroglycerin.  The decedent’s pain increased.  The nurse called the on-call doctor, who ordered the decedent be given Motrin and be screened for mental illness.  The doctor never examined the decedent in person.  The decedent received a mental health screening and was returned to jail.  The inmate then returned to the jail medical clinic complaining of more severe pain.  She knew that per policy, if nitroglycerin did not relieve the patient’s symptoms, the patient should be hospitalized.  She called the nurse at the mental health intake center, who told her of the doctor’s orders.  The nurse administered Motrin and the decedent remained for observation.  The patient consulted with another nurse, who instructed him on relaxation and gave him a heat balm.  Eventually, the nurse observed the decedent in extreme distress.  She called paramedics.  The decedent was transferred to a hospital where he died.  He had suffered an aortic dissection.  The decedent’s parents sued the various medical personnel under 42 U.S.C. section 1983, alleging deliberate indifference.  The defendants moved for summary judgment based on qualified immunity.  The district court denied the motion, finding genuine issues of material fact.

The 9th Circuit affirmed as to all but one nurse.  At the time of the decedent’s death, a deliberate-indifference claim under the 14th Amendment were decided on the same standard as 8th Amendment claims, requiring a showing of deliberate indifference.  Later, the Supreme Court held that a plaintiff alleging a 14th Amendment violation need not show subjective deliberate indifference; only that the force used was objectively unreasonable.  The 9th Circuit then applied this rule to 14th Amendment claims, requiring that the plaintiff show that the defendant made an intentional decision putting the plaintiff at substantial risk of serious harm, and then did not take reasonableavailable 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.  The court applies this objective standard to determine whether the defendants violated clearly-established law, even where the incident occurred before the change in the law.  The standard can be met where the care rendered is so inadequate to the circumstances known to the medical staff as to amount to deliberate indifference.  At the time of decedent’s death, the 9th Circuit had found deliberate indifference where nurses and a doctor had prescribed palliative treatment in response to serious symptoms, or providing life-saving measures to an inmate in obvious need.  Further, other circuits had applied the standard to obvious symptoms of heart attack, such as those the decedent displayed here.  Under this standard, a jury could find that all of the medical personnel—except for the nurse who called the doctor, and followed his orders (entitling her to qualified immunity)—violated clearly established law by having access to information that the decedent had a substantial risk of serious injury, and providing constitutionally inadequate treatment.

Farm States 1st Amendment Retaliation Claim against School District for Discontinuing Field Trips Based on Social Media Posts

In Riley’s American Heritage Farms v. Elsasser, published March 17, 2022, the 9th Circuit Court of Appeals reversed in part and affirmed in part summary judgment granted to public school defendants in a 42 U.S.C. section 1983 case seeking damages and injunctive relief.  Over a 16-year  period, schools within the defendant school district booked field trips with the plaintiff farm.  One of the principal shareholders made controversial statements on his personal social media account.  In response, some parents complained about their students traveling on field trips to the farm, and a local newspaper published an article about the incident.  The school district severed its relationship with the farm.  The farm sued the district, individual board members, and administrators, alleging 1st Amendment retaliation.  The district court granted the defendants summary judgment.

 

The 9th Circuit held that the farm had set forth a prima facie claim for first amendment retaliation.  Because the farm stood in the same position as an independent contractor to the government, the Pickering test for First Amendment retaliation applied.  There was no issue that the farm had engaged in protected expressive activity; that the defendants took an adverse action against the farm; and that the defendants were motivated to do so by the farm’s expressive conduct.  The burden shifted to the school defendants to show that their interests in preventing disruption to their operations and curricular design were so substantial that they outweighed the plaintiff’s free speech interests.  Viewing the evidence in the light most favorable to the plaintiff, because the speech was outside the scope of school communications, did not mention the school, and resulted in only a small number of complaints and coverage, the defendants did not carry their burden sufficiently to obtain summary judgment.  On the second prong of qualified immunity, the individual defendants were entitled to summary judgment, because the law at the time did not place the question of whether they violated the plaintiff’s 1st Amendment rights beyond debate.  The defendants were not entitled to summary judgment against the injunctive relief claim, because the superintendent’s testimony that there was still a policy against booking field trips to the farm was sufficient to create a genuine issue of fact on whether the plaintiff continued to suffer from an ongoing constitutional violation.

 

Favorable Termination Element of Section 1983 Malicious Prosecution Claim Requires Only That Prosecution Ended without Conviction

In Thompson v. Clark, published April 4, 2022, a divided U.S. Supreme Court reversed a judgment in favor of police officer defendants on a 4th amendment malicious prosecution claim.  The plaintiff was accused by a mentally ill relative of sexually abusing his one-week-old daughter.  Four police officers arrived at the plaintiff's apartment.  The plaintiff told the officers they could not enter without a warrant.  The officers entered, and, after a scuffle, handcuffed the plaintiff.  No sign of abuse was found.  The officers arrested the plaintiff for resisting their entry into the apartment.  An officer filed a criminal complaint against him for resisting arrest and obstructing governmental administration.  A judge released him.  Before trial, the court granted the prosecution's motion to dismiss the case.  No explanation was given for the motion to dismiss or the dismissal.  The plaintiff sued the officers under 42 U.S.C. section 1983 for malicious prosecution.  The district court entered judgment for the officers, on the ground that the favorable termination element of malicious prosecution could not be satisfied because the criminal case had not ended in a way that affirmatively indicated the plaintiff's innocence.  The Second Circuit Court of Appeals affirmed.  Because the circuits were split on the favorable termination element, the Supreme Court granted review.

The majority held that a 4th Amendment claim under section 1983 for malicious prosecution does not require the plaintiff to show that the criminal prosecution ended with some affirmative indication of innocence.  The plaintiff need only show that the criminal prosecution ended without conviction.  The plaintiff did so here.  The court reached that conclusion by examining the nature of the malicious prosecution tort in 1871, when section 1983 was passed.  Case law interpreting that tort required for favorable termination only that the prosecution end without conviction.  The interpretation is also consistent with the values and purposes of the 4th Amendment.  The question of whether a criminal defendant was wrongly charged does not logically depend on whether the
prosecutor or court explained why the prosecution was dismissed. The individual’s ability to seek redress for a wrongful prosecution cannot reasonably turn on the fortuity of whether the prosecutor or court happened to explain why the charges were dismissed.  Requiring an affirmative indication of innocence would paradoxically foreclose a section 1983 claim when the government’s case was weaker and dismissed without explanation before trial, but allow a claim when the government’s evidence was substantial
enough to proceed to trial.  Further, officers will be protected from unwarranted civil suits by the requirement the plaintiff show the absence of probable cause, and by qualified immunity.

Three dissenting justices opined that there should be no 4th Amendment malicious prosecution claim.

Use of Deadly Force against Person Armed with Bat Who Does Not Pose Immediate Threat Violates Clearly-Established Law

In Estate of Najrera Aguirre v. County of Riverside, published March 24, 2022, the 9th Circuit Court of Appeals affirmed denial of a police officer’s motion for summary judgment based on qualified immunity.  The defendant officer received radio reports that a person with a bat-like object was threatening a woman with a baby, and was destroying property.  The details of the conduct reported are disputed.  When the officer arrived, he ordered the decedent, at gunpoint, to drop the stick he held.  The decedent did not do so; there are accounts that he verbally refused to do so.  The officer sprayed the decedent with pepper spray, which blew back into the officer’s face.  The decedent was largely unaffected.  Some witnesses said that the decedent retrieved a bat from bushes and advanced on the officer; others say that he held the stick point down and did not advance.  The officer shot the decedent six times from no more than 15 feet. The officer contends the decedent faced him all that time.  The fatal bullets came from the back, indicating that the decedent was turned away from the officer when those bullets were fired.  The decedent’s estate and children sued the officer under 42 U.S.C.  section 1983.  The court denied the officer’s summary judgment motion, finding disputed issues of fact.

 

The 9th Circuit affirmed.  It ruled that it had jurisdiction to consider the appeal, despite the court finding issues of fact.  It then ruled that the motion was premature, because if the factual issues were resolved in the plaintiffs’ favor, the use of deadly force on a suspect who was not posing an immediate threat both violated the 4th Amendment and violated clearly established law.  It was obvious that using deadly force on a suspect who did not pose an immediate threat to the officer or others violated the 4th Amendment; and 9th Circuit case law at the time clearly established that even if a suspect was holding a weapon, use of deadly force was excessive if the suspect was not acting in a way that posed an immediate threat.

Government Code Immunity for Mental Examination's Application to School District's Threat Assessment Is Limited

In Cleveland v. Taft Union High School District, published March 25, 2022, the Fifth District Court of Appeal affirmed a judgment entered after a jury verdict.  A high school student told fellow classmates about a dream he had of shooting multiple students.  The school district suspended the student and performed a threat assessment.  As part of the threat assessment, the school psychologist interviewed the student.  The assistant principal oversaw the threat assessment and interviewed other students about the student.  The School Resource Officer searched the student's house for weapons and a "hit list," and did not find anything.  The school psychologist prepared a report determining the student could return to school.  Students made additional complaints about the student over the succeeding months, and the assistant principal assessed those events.  Ten months after making the initial statements, the student brought a shotgun to class and shot the plaintiff.  The plaintiff sued the school district and its administrators for negligence.  The school district asserted that under Government Code section 855.6, which immunizes public entities and employees from liability for inadequate physical and mental examinations made to determine whether a person is a threat to himself or others, it and its employees were immune from liability for making an allegedly inadequate threat assessment.  The trial court determined that the immunity applied only to the school psychologist's examination of the student and his conclusions from that examination, and did not apply to the rest of the threat assessment.  The jury held the school psychologist, the assistant principal, other administrators, and a school security officer were negligent, and assigned them collectively 54% of the fault for the shooting.  The district was held liable for damages.  On appeal, the district contended that section 855.6's immunity applies to the entire threat assessment.

The appellate court agreed with the trial court.  Analyzing the law and policy concerning administrators' duty of care to protect students, as well as the legislative and case law history of section 855.6, the court concluded that the immunity applies to any public employee, not just medical personnel.  But it interpreted the term "mental examination"  in the statute to apply only to the process of inspecting visually, or by use of the other senses, the physical, mental, and emotional state of the person examined.  Typically, this would involve a face-to-face meeting, although it could also include interviews by telephone or videoconference.  The court determined that applying section 855.6 to all negligent acts or omissions of a threat assessment team would undermine the goal of protecting students, rather than encouraging school districts to diligently perform the threat assessment.  The court responded to the concern that the threat of liability would dissuade school districts from performing threat assessments by reasoning that the districts' duties to protect their students would incentivize them to continue to perform the assessments.  The acts and omissions the plaintiff's expert found in the threat assessment's performance were therefore outside the scope of the immunity.

Pollak, Vida & Barer participated in the appeal.

Court Has Discretion to Deny Fee Award under California Public Records Act Where Petitioner Obtains Minimal or Insignificant Documents

In Riskin v. Downtown Los Angeles Property Owners' Association, published March 17, 2022, the Second District Court of Appeal, Division 3 reversed an award of attorney fees under the California Public Records Act.  After the defendant association produced 46 e-mails in response to a CPRA request and asserted others were exempt from production, the plaintiff petitioned for a writ seeking to compel production of further documents.  The trial court reviewed two documents in camera, and found an e-mail string containing 20 sentences total contained some disclosable information.  The association sought an appellate writ challenging disclosure, which was summarily denied.  The plaintiff sought fees and costs totaling $123,119.11.  The trial court awarded fees of $71,075.75.  The trial court rejected the association's argument that the court had discretion to deny attorney fees where the documents obtained are so minimal or insignificant as to justify a finding that the plaintiff did not prevail.  The court reasoned that because Government Code section 6259, subdivision (d) provides that the court shall award fees to a prevailing party, the trial court had no discretion to deny a fee award.

The appellate court disagreed.  It reviewed the case law interpreting the CPRA and fee awards in other contexts, and concluded that the minimal and insignificant standard applies to fee awards in CPRA cases.  It remanded the case to the trial court to determine whether the standard warranted denying fees in this case.

School District Does Not Owe Mandatory Duty to Student to Defend Him When He Is Sued for Injury Caused During School Sports Activity

In Sruouy v. San Diego Unified School Dist., published February 24, 2022, the Fourth District Court of Appeal, Division 1 affirmed dismissal after demurrer of a former high school student's lawsuit against a school district seeking indemnity for defense costs.  During a high school football game, the plaintiff, then still a minor, blocked an opposing player who then fell against a referee's legs, injuring the referee.  The referee sued the school district and the plaintiff.  The plaintiff initially thought the school was defending him, and a default was entered against him.  When he discovered that the school's attorney was not defending him and that he was in default, the student obtained counsel and got the default set aside.  Eventually the referee dismissed the student from the case for a waiver of costs.  The plaintiff then presented a claim to the school district for his attorney fees.  After the claim was denied, the plaintiff, who had graduated, sued the district for express indemnity, equitable indemnity, and implied indemnity.  The student alleged that under Government Code section 815.6, the school district owed the student a mandatory duty to defend him in the lawsuit.  He alleged that the mandatory duty was created by Education Code section 44804 (which imposes liability on a school district for injury occurring off-campus in a school-sponsored activity if the injury occurs through failure to exercise reasonable care); article IX, section 5 of the California Constitution (which provides for free schooling); and title 5, section 350 of the California Code of Regulations (which provides a student shall not be required to pay any fee, deposit, or other charge not specifically authorized by law).  The trial court sustained the district's demurrer without leave to amend, ruling that the plaintiff had failed to plead a mandatory duty to protect or indemnify him from incurring attorney fees.

The appellate court agreed.  To create a mandatory duty under Government Code section 815.6, an enactment must be obligatory, rather than discretionary; and the duty must be designed to protect against the particular kind of injury the plaintiff suffered.  None of the enactments cited met those tests.  The district was not required to provide the plaintiff with a legal defense as part of its constitutional free school guarantee.  The constitution guarantees free educational activities, and the lawsuit was not an educational activity.  Further, the free schooling provision pertains to expenses peculiar to education.  Representation in a lawsuit is not peculiar to education.  The argument that the cost of retaining a lawyer was a charge for participating in the football team, in violation of section 350's regulation, failed, because the regulation is based on the constitution's free schooling provision; and because the cost of defense was incurred after the plaintiff graduated and was no longer on the team.  Education Code section 44808 cannot be interpreted to require schools to defend students whenever they are sued for causing injuries while under supervised school activities, because that would make school districts insurers of student safety by requiring them to defend students even absent any fault by the district.  Nothing about the history or interpretations of section 44808 indicate it was intended to broaden the scope of school district liability at all, much less to this extent.  Further, while Education Code section 32221 requires school boards to provide medical insurance for school athletes, providing any other insurance is discretionary rather than mandatory.  Finally, the plaintiff's argument on appeal that the California Constitution's equal protection clause provided a ground for recovery failed, because monetary damages cannot be recovered under that provision.