Government Liability Update

Posting Arrestees' Personal Information without Rational Relation to Proper Purpose Violated Substantive Due Process

In Houston v. County of Maricopa, published September 5, 2024, the 9th Circuit Court of Appeals affirmed in part and reversed in part the dismissal of a putative class action under 42 U.S.C. section 1983.  The county published a Mugshot Lookup website on which it posted photographs and extensive personal identifying information about arrestees.  The photographs and information remain up for three days, and then are taken down.  In the meantime, the photos and information are often gathered by other Internet sites and therefore remain available.  The county justifies the the practice as promoting transparency in the criminal legal system.  The page does not contain information about the police who made the arrest, whether charges were pursued or dismissed, or the jail in which the arrestee is held.  The plaintiff was arrested, and his photo and identifying information were posted on the website.  He was never prosecuted on the charges noted on the post, which were later dropped.  The plaintiff alleged the county's conduct violated due process under the Fourteenth Amendment, the Fourteenth Amendment's Equal Protection Clause, and the Sixth Amendment.  The district court dismissed the action and denied the requested class certification as moot.

The 9th Circuit agreed that the posting did not violate Procedural Due Process or the Sixth Amendment.  But it ruled that the plaintiff had plausibly pleaded a substantive due process claim based on pretrial punishment.  The Due Process Clause protects pretrial detainees from punishment before adjudication of guilt.  To constitute punishment, a government action must harm a detainee and be intended to punish him.  Punitive purpose is assessed by considering whether the challenged conduct operates as a punishment, or whether it is but an incident of some other legitimate governmental purpose.  Based on the plaintiff's allegations, the posting caused him harm and public humiliation.  He alleged the posting permanently damaged his business and personal reputation.  The purported public purpose for the posting, transparency, does not establish a legitimate governmental objective.  The government did not make a showing that the posting promoted public safety.  Further, the posting is not rationally related to any such interest.  The county posted only information about the arrestee, and no information about the government activity leading to the arrest.  The county did not explain why the detailed information about the arrestee posted was necessary to public safety.  There was therefore a sufficient inference of punitive purpose to avoid dismissal

No Failure-to-Train Liability for Improper Extraction of Prisoner, Where Guards Were Trained in Extraction; Damages Excessive for Injury

In Bell v. Williams, published July 18, 2024, the 9th Circuit Court of Appeals affirmed in part and reversed in part a judgment after jury verdict for a prisoner in a suit under 42 U.S.C. section 1983 and the Americans with Disability Act/Rehabilitation Act.  The prisoner plaintiff was an amputee, his right leg amputated above the knee.  The defendant sergeant at the jail where the plaintiff was imprisoned ordered the plaintiff extracted from his cell.  She further ordered that the plaintiff not be issued a wheelchair or other mobility device.  Instead, she required him to hop on one leg, which was against jail policy and the medical instructions for the plaintiff.  She then had guards carry him.  The plaintiff testified to pain of 9.5 out of 10 during the hopping, including pain in his shoulder from supporting himself on guards.  He felt something "pop" in his shoulder, and felt pain afterward.  Before trial, the district court found the guards except the sergeant were entitled to qualified immunity, but ruled that there were triable issues of fact as to the sergeant's qualified immunity.  A jury found that the sergeant used excessive force, and violated the plaintiff's rights under the 14th Amendment and the ADA/RA.  It further found that the jailing entity was liable under a Monell theory of failure to train.  It awarded damages of $504,000.

The 9th Circuit ruled that substantial evidence supported the jury's verdict that the sergeant violated the 14th amendment.  The requirement that the plaintiff hop on one foot without a wheelchair or other device was not justified, particularly because evidence showed the plaintiff was compliant with the extraction (despite a history of prior noncompliant behavior) and the lack of exigent circumstances.  Because the jury did not award damages against her,  the court declined to consider whether she was entitled to qualified immunity.  Substantial evidence also supported liability under the ADA/RA for the entity.  By preventing the plaintiff from using a wheelchair or mobility device, in violation of policy, the jailor was depriving the plaintiff of reasonable accommodation, even in light of the jail's legitimate security interests.  But the 9th Circuit reversed the finding of Monell liability for failure to train. Establishing municipal liability based on a Monell theory of liability is difficult.  The evidence showed that the entity provided training of its guards through multiple programs.  Although the plaintiff contends the training is inadequate, that is insufficient to show deliberate indifference to a known danger.  Regarding the damages award, the court upheld the decision that the prisoner suffered a physical injury that was more than de minimis, which allowed him to recover mental and emotional injuries under the Prison Litigation Reform Act.  But the $504,000 was grossly excessive for the injury he suffered.

Because Law Did Not Clearly Establish That Prison Policy on Prioritizing Medication of Hepatitis C Patients Was Unconstitutional, State Official Entitled to Qualified Immunity

In Carley v. Aranas, the 9th Circuit Court of Appeals reversed a district court order denying a motion for summary judgment based on qualified immunity.  The plaintiff was an inmate in state prison.  She was diagnosed with Hepatitis C in 2013.  In 2013, the FDA began approving direct acting antivirals as a new treatment that cured Hep C in 95 to 995 of cases.  The drugs were often costly, and were not recommended for all Hep C patients until 2015.  The price of the drugs gradually lowered.  2014 National Hep C policy recommended immediate treatment be prioritized for the most advanced patients; in 2015 the policy changed to recommending treatment for all chronic Hep C patients except those with short life expectancies.  The policy recognized that state prisons and jails may not have the financial leverage to obtain cost effective treatment.  The plaintiff's expert contended this policy set the standard of care for Hep C treatment.  Federal prison guidelines between 2014 and 2018 recommended prioritizing patients according to how advanced the disease was.  The state department of correction guidelines at issue reflected the prioritization guidelines of the federal prison guidelines.  The plaintiff's condition from 2013 and 2018 was never advanced enough to qualify for DAA treatment under the department of correction guidelines, but met the prioritization guidelines of the national policy.  After exhausting grievances, the plaintiff sued the former medical director of the state department of corrections, who signed off on the department of corrections policy, as well as other prison officials, alleging deliberate indifference in her treatment in violation of the 8th Amendment.  The district court granted summary judgment to all defendants  except the former director.  The court concluded that the former director had personally participated in the alleged violation, and there was an issue of fact on whether he was deliberately indifferent to the plaintiff's serious medical needs.

The 9th Circuit ruled that the district court had erred in failing to address the second prong of qualified immunity:  Whether the alleged misconduct had violated clearly-established law.  Even assuming that the defendant violated the plaintiff's constitutional rights, he was entitled to qualified immunity unless the plaintiff could demonstrate that the defendant knew or should have known that he was violating the plaintiff's 8th Amendment rights.  The constitutional question must be beyond debate.  Case law establishing the general rule that prison officials are deliberately indifferent when they know of and disregard an excessive risk to inmate health is too broad to put officials on fair notice of their constitutional obligations.  Similarly, case law establishing that prison doctors are deliberately indifferent when they fail to provide or delay providing necessary medical treatment is too broad to establish a particular constitutional violation.  The question was whether a prison medical director between August 2013 and May 2018 would have been on notice that the department of corrections Hep C policy was
unconstitutional at the time. The appropriate inquiry is not whether evolving medical standards prescribed a course of best treatment and practice, but whether the medical standard was so well established that the failure to prescribe the course of treatment could only be considered deliberate indifference within the meaning of the 8th Amendment. The courts addressing the 8th Amendment standard for treating Hep C positive inmates had reached different conclusions.  The standard therefore could not be beyond debate.  The former director was therefore entitled to qualified immunity.

Imprisonment in a Private Prison Does Not Violate Prisoners' Constitutional Rights

In Nielsen v. Thornell, published May 21, 2024, a divided panel of the 9th Circuit Court of Appeals affirmed a district court's dismissal of a lawsuit brought by the NAACP and two former prisoners alleging that Arizona's private prisons violate various federal constitutional rights.  The majority ruled that imprisonment in private prisons does not violate inmates' procedural due process right to a protected liberty interest, because only prisons that impose an atypical or significant hardship beyond ordinary prison conditions violate this right.  None of the conditions of the private prisons alleged meet that high bar.  The court deemed the prisoners' allegations that private prisons have a profit motive in keeping prisoners longer, by manipulating disciplinary proceedings, to be speculative, particularly because Arizona law bars private prisons from disciplining prisoners or making decisions affecting their sentence credits or release dates.  The majority rejected the argument that the 13th Amendment bars imprisonment in private prisons.  The 13th Amendment expressly excludes punishment for a crime of which the party has been duly convicted.  Further, imprisonment in a private prison does not remotely approximate chattel slavery.  Private prisons do not own, buy, or sell prisoners, the majority reasoned; instead, the state determines where prisoners are incarcerated.  The 8th Amendment does not prohibit incarceration in a private prison, and the complaint did not allege conditions in private prison that constitute a dramatic departure from accepted standards for conditions of confinement.  The 14th Amendment's Equal Protection and Due Process clauses do not bar imprisonment in private prisons.  There is no fundamental right against incarceration in a private prison; there is no deeply rooted historical tradition against using such prisons.  The private prison system does not discriminate against a suspect class.  Therefore, the equal protection and due process challenges are reviewed for rational relation to some legitimate end.  The system is rationally related to furthering the goal of efficiency.

One judge wrote a concurring opinion to emphasize that the decision is limited only to the facts of the particular case, not whether every use of private prisons passes constitutional muster.  Another judge dissented, opining that the plaintiffs lacked standing and that the court should not be determining the merits of their case.

Serving Prisoner Evening Meal early during Ramadan Fasting Period May Violate Prisoner's 1st Amendment Rights

In Long v. Sugai, published February 5, 2024, the 9th Circuit Court of Appeals affirmed in part and reversed in part a judgment in favor of correctional officers.  The plaintiff, who is a practicing Muslim, alleged the defendants violated his 1st Amendment right to free exercise of religion, and unconstitutionally retaliated against him for engaging in protected 1st Amendment activity.  Among his claims was the allegation that during Ramadan, one of the officers served him his evening meal at 3:30 p.m., even though the plaintiff could not break his fast until sundown, four hours  later.  By the time he could eat, the plaintiff alleged, his food was cold, congealed, and unsafe to eat.  He alleged the cold food aggravated his stomach ulcers, and on several occasions he was unable to eat the meal.  He asked the officer if he could call the kitchen to request a hot meal or allow the plaintiff to use a staff microwave.  The requests were refused.  The district court granted summary judgment for the defendant on this claim.  The plaintiff's requests for injunctive relief were eliminated at the pro se prisoner screening stage.

The 9th Circuit affirmed the district court's decisions on most of the plaintiff's claims, but reversed on two grounds.  It reversed the dismissal of the injunctive claims at the screening stage.  Although the complaint referred to past events, the plaintiff remained incarcerated.  He should have been allowed to amend the complaint to allege facts showing a need for injunctive relief.  The district court also erred in granting summary judgment against the free exercise claim arising out of the early serving of the evening meal during the Ramadan fast.  The district court relied on 8th Amendment cases holding that serving unappetizing or cold food is not cruel or unusual punishment.  That case law does not control the question of whether serving food unconstitutionally burdened the plaintiff's free exercise of his religion.  In determining a prisoner's free exercise claim, the court first determines whether the challenged prison policy or practice substantially burdened the prisoner’s free exercise of his or her religion.  It then determines whether the burden was reasonably related to legitimate peneological interests.  Viewing the evidence in the light most favorable to the plaintiff, the service of the meal at 3:30 p.m. during Ramadan substantially burdened the plaintiff's free exercise of his religion, by placing substantial pressure on a religious adherent to modify his behavior and violate his beliefs.  Circuit precedent establishes that failure to provide food consistent with a prisoner’s sincerely held religious beliefs constitutes a substantial burden on the prisoner’s free exercise.  This law clearly establishes that delivery of the prisoner's evening meal at a time that rendered it inedible and unsafe if the prisoner adhered to his fast substantially burdened his religion.  The court remanded the claim to the trial court to determine whether the burden was justified, and whether the defendant was entitled to qualified immunity.

PREP Act Immunized Policy-Making Officials from Liability under Section 1983 for COVID Vaccination Prioritization

In Maney v. Brown, published February 1, 2024, the 9th Circuit reversed an order denying a motion to dismiss a claim brought under 42 U.S.C. section 1983.  At the start of the COVID-19 Pandemic, the defendant governor and the defendant state health officer were responsible for crafting the state's response to the virus.  When vaccines first became available, the defendants established priority tiers for vaccine rollout.  They assigned state prison inmates to a lower priority vaccination tier than correctional officers.  Current and former inmates of state prisons (or their personal representatives) sued the defendants for the injuries and deaths of inmates who contracted COVID while in custody.  The defendants moved to dismiss the vaccine prioritization damages claim on the ground that it was barred by immunity under the Public Readiness and Emergency Preparedness Act ("PREP Act"), 42 U.S.C. section 247d-6d.  The district court denied the motions.  The defendants brought an interlocutory appeal.

The 9th Circuit held that the PREP Act immunized the defendants from the claim.  The PREP Act gives covered persons immunity from suit and liability for claims relating to administration or use of a covered countermeasure.  The Act applies when the Secretary of Health and Human Services makes a determination that a disease constitutes a public health emergency and declares the Act's immunity is in effect.  The Secretary made the required declaration about COVID-19 in March 2020.  In making the declaration, the Secretary roadly defined “covered countermeasures” to include “any antiviral, any
other drug, any biologic, any diagnostic, any other device, or any vaccine, used to treat, diagnose, cure, prevent, or mitigate COVID-19.”  The plaintiffs conceded that the defendants were covered persons under the Act, and that COVID-19 vaccines are covered countermeasures.  The issue was whether the vaccine prioritization claim falls within the scope of covered claims as defined by the statute and the Secretary's declaration.  The plaintiffs also conceded that the Secretary's declaration extends PREP Act immunity to claims arising from a failure to administer a COVID vaccine to a particular person when that omission is part of an individualized prioritization decision.  They contended that the immunity does not extend to policy-level failure-to-administer claims.  But the Prep Act's provisions expressly show Congress’s intent to extend immunity to persons who make policy-level decisions regarding administration or use of covered countermeasures and do not directly administer countermeasures to particular individuals.  The Secretary's declaration does not expressly or impliedly exclude policy-level prioritization decisions from immunity.  The Act's broad language immunizing persons from suit and liability under federal and state law covers claims under 42 U.S.C. section 1983.

Prison Officials Not Entitled to Qualified Immunity or PREP Act Immunity for Allegedly Inadequate Attempts to Prevent COVID Spread during Inmate Transfer

In Hampton v. State of California, published October 3, 2023, the 9th Circuit Court of Appeals affirmed the district court's denial of a motion to dismiss a 42 U.S.C. section 1983 lawsuit brought by the wife of an inmate who died of COVID-19 in San Quentin prison.  The case arises out of the same circumstances as Polanco v. Diaz (9th Cir. 2023) 76 F.4th 918:  The state officials allegedly ordered prisoners in the California Institution for Men, which was suffering a severe COVID-19 outbreak early in the Pandemic, transferred to San Quentin, which was COVID-free.  The officials allegedly took insufficient measures to test the transferred inmates or to isolate them from the San Quentin population.  San Quentin went from being COVID free at the end of May 2020 to having 2,000 inmates (2/3 of the population) infected in August 2020.  By September 2020, 26 inmates and one correctional officer had died of the disease.  The decedent was a 62-year-old inmate who died in September 2020 of COVID.  His wife asserted an 8th Amendment claim under section 1983, state statutory claims, and a state law negligence claim.  The defendants asserted all of the claims were barred by the Public Readiness and Emergency Preparedness Act ("PREP Act"), 42 U.S.C. § 247d-6d, immunity; that the 8th Amendment claim was barred by qualified immunity; and that the state law claims were barred by various Government Claims Act discretionary-act immunities and immunities in the California Emergency Services Act.   

The 9th Circuit affirmed the district court's decision that the complaint was not subject to dismissal.  The PREP Act's immunity for decisions regarding taking countermeasures to a declared state of emergency, because the allegations of the complaint were based on failure to apply covered countermeasures.  Qualified immunity did not apply at the pleading stage, because the Polanco decision established that the alleged failure to adequately take precautions during the transfer was deliberate indifference, and because it was clearly established in 2020 that inmates had a right to be free from exposure to a serious disease.  As for the state law immunities, the court reconsidered earlier decisions holding that a circuit court had jurisdiction to consider such immunities via interlocutory appeal.  The California Supreme Court's decision in  Quigley v. Garden Valley Fire Protection District (2019) 7 Cal. 5th 798 established that Government Code immunities were not jurisdictional, and were immunities from liability rather than immunities from suit.  T

14th Amendment Claim for Failure to Protect Pretrial Detainee Mental Patient from Fellow Patient Requires Showing of More than Negligence

In Alexander v. Nguyen, published August 25, 2023, the 9th Circuit affirmed a district court's grant of summary judgment in a 42 U.S.C. section 1983 case.  The plaintiff was a pretrial detainee who was being treated at a state mental hospital until he was competent to stand trial on a criminal charge.  While he was there, a fellow patient struck his head with a fist.  The staff considered multiple factors, and determined that the plaintiff should not be moved out of the unit.  Instead, they took other measures in an attempt to prevent a further attack.  Less than two weeks later, the patient attacked the plaintiff again.  The staff then decided to transfer the plaintiff to another unit.  There was no further violence toward the plaintiff while he was at the hospital.  The plaintiff sued the psychiatrist in charge of his unit, alleging a violation of his 14th Amendment right to substantive due process.  The psychiatrist moved for summary judgment, arguing that he had not violated the plaintiff's rights, and that he was entitled to qualified immunity.  He supported the motion with an expert affidavit that the psychiatrist had acted within the standard of care.  The plaintiff did not offer any evidence disputing the affidavit.  The district court granted the psychiatrist summary judgment on the second prong of qualified immunity:  That it was not clearly established that his actions violated the Constitution.

The 9th Circuit affirmed on a different ground, the first prong of qualified immunity:  That the plaintiff could not establish denial of appropriate medical care in violation of the 14th Amendment.  Pretrial detainees' 14th Amendment claims for violation of the right to adequate medical care are determined under an objective deliberate indifference standard.  Under that standard, mere lack of due care is not enough to show a constitutional violation.  The plaintiff must prove someting more than negligence but less than subjective itnent--something akin to reckless disregard.  Similarly, a patient involuntarily committed to a state hospital alleging a violation of the constitutional right to safe conditions, decisions made by appropriate professionals are presumptively valid, and liability may be imposed only when the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.  Liability requires a finding of conscious indifference amounting to gross negligence.  Here, there is no evidence that the psychiatrist failed to act reasonably in response to the first attack on the plaintiff.  The benefit of hindsight from the fact that the plaintiff was attacked a second time does not show the psychiatrist's original decision was unreasonable.  There was therefore no violation of the plaintiff's constitutional rights.

Prisoner Unable to Show Injury from Alleged Denial of Use of Law Library Lacked Standing to Bring 1st Amendment Claim

In Nasby v. State of Nevada, published August 18, 2023, the 9th Circuit Court of Appeals affirmed summary judgment in favor of state prison officials in a prisoner's lawsuit under 42 U.S.C. section 1983 alleging denial of 1st Amendment rights.  The prisoner, convicted of first-degree murder, was housed in a lockdown unit of a state prison before his transfer to another state prison.  Both prisons require lockdown inmates to use a paging system to access materials in the prisons' law libraries, rather than allowing them to physically visit the library.  Lockdown inmates fill out request forms.  Inmate library workers review the requests.  If the requests are filled out correctly, library workers retrieve the requested legal materials for delivery to the lockdown units.  In one of the prisons, inmate law clerks are prohibited from visiting lockdown inmates.  At both, inmate library workers receive little training and may not give legal advice.  The prisoner produced affidavits that the only way to receive the legal materials is to request the specific source by name, and that his requests were rejected for lack of specificity.  The prisoner alleged that this system deprived him of access to the courts by preventing him from discovering a state supreme court decision that supported his claim for post-conviction relief.  He was required to re-raise his claim (previously asserted in direct appeal and habeas petition) concerning the new case within one year after the new case was decided.  But he did not learn of the case until seven years after it was decided.  In the meantime, he had filed two more habeas petitions.  Upon discovering the case, he filed a fourth habeas petition based on the case.  The trial court denied the petition as procedurally barred by laches, untimely, successive, and an abuse of the writ.  The state appellate court affirmed on the same grounds, and on the ground that the evidence at trial established that even based on that case the prisoner would have been convicted.  The prisoner sought injunctive relief ordering the paging system supplemented or changed; a declaratory judgment; and damages.  The district court granted summary judgment based on the prisoner's lack of standing.

The panel majority agreed.  Standing requires an injury in fact.  To show actual injury for an access-to-courts claim, an inmate must demonstrate that the alleged shortcomings in the library or legal assistance program hindered his efforts to pursue a legal claim.  Only the hindrance of direct appeals from the convictions for which prisoners are incarcerated, habeas petitions, and civil rights actions implicate the access right protected by the 1st Amendment.  The hindered claim must also be nonfrivolous:  the plaintiff must show that the arguable nature of the underlying claim is more than hope.  Here, the prisoner's fourth habeas petition was rejected for a reason unrelated to the delay in discovering the case on which he based the petition.  That denial renders his habeas claim not "arguable" and therefore, in this context, frivolous.  Even if he had instantly discovered the case and timely asserted his claim, his petition would still have faced timeliness and prejudicial error hurdles. 

A concurring judge opined that the prisoner had standing to raise a claim arising out of alleged denial of access to the library, but that the claim failed on the merits.

Prison Officials Are Not Entitled to Qualified Immunity to Guard's Family's Claim for Introducing COVID into a Prison

In Polanco v. Diaz, published August 7, 2023, a split panel of the 9th Circuit affirmed a district court decision denying a motion to dismiss a 42 U.S.C. section 1983 against state prison officials .  A few months into the COVID-19 Pandemic, high-evel officers in the state prison system transferred 122 inmates from one prison, where there was a widespread COVID-19 outbreak, to another prison, where there were no known cases of the virus.  Allegedly, the officials had been briefed on the risks COVID posed in a prison setting; the necessity of taking precautions such as social distancing, masking, and testing; and that containing an outbreak at the target  prison would be particularly difficult due to its design.  Most of the transferred inmates had not been tested for three weeks.  The inmates were allegedly packed onto buses, where some showed symptoms of COVID en route.  The officials did not quarantine the incoming inmates.  They placed nearly all in a housing unit with grated doors instead of solid doors, and had them use the same showers and mess hall as other inmates.  The county health officer recommended that the transferred inmates be sequestered and that exposed inmates and staff be required to wear masks.  The state officials allegedly ordered that the county health official be told he lacked the authority to mandate measures in a state-run prison.  A COVID outbreak at the prison ensued.  During the outbreak, officials were notified of a memo from health experts advising adopting masking and testing.  The officials allegedly declined to adopt the memo's recommendations.  Eventually, 2,100 inmates and 270 staff tested positive, and 26 inmates and one guard died.  The guard's family sued the officials for violating the decedent's constitutional rights.

The panel majority held that the complaint stated a claim for violation of the decedent's due process right to be free of a state-created danger.  Although state employers have no constitutional duty to provide employees with a safe working environment, they can be liable for affirmatively, and with deliberate indifference, creating or exposing their employees to a dangerous working environment.  The allegations, if proven, established affirmative conduct (transferring the inmates), a particularized danger (danger to the inmates and staff at the prison), and deliberate indifference to a sufficiently severe danger.  Further, they did not attempt to mitigate the risk.  The majority further ruled the constitutional right was clearly established for qualified immunity purposes.  Although COVID was a novel threat, two previous 9th Circuit cases held that a prison's disregard for employee safety (from inmate attack) and that deliberate indifference to health risks to employees (from exposure to toxic mold) together established the violation of the 14th Amendment through the state-created danger doctrine.  The majority further rejected the argument that the Public Readiness and Emergency Preparedness (“PREP”) Act, 42 U.S.C. § 247d-6d, would have lead reasonable prison officials to believe that they could handle the COVID-19 outbreak however they saw fit, without a risk of liability.  The PREP act does not limit constitutional rights; it limits liability for violating them.  It therefore does not affect qualified immunity.

A dissenting judge opined the officials should have qualified immunity for dealing with a novel health threat.