public entity immunity

LVN’s FEHA Claims Were Barred By Government Code Section 844.6 Immunity.

Jennifer Bitner and Evelina Herrera were employed as licensed vocational nurses by the California Department of Corrections and Rehabilitation (CDCR). Their duties included one-on-one suicide watch of inmates. Bitner and Herrera contended that male inmates sexually harassed them, and that CDCR failed to appropriately prevent or correct this behavior. Based on these allegations, the LVN’s filed a lawsuit for gender-based hostile work environment and failure to prevent harassment under the Fair Employment and Housing Act (FEHA).

Government Code Section 844.6 grants immunity to public entities that run prisons, such as CDCR. This immunity states that “a public entity is not liable for … [a]n injury proximately caused by any prisoner.” By asserting this immunity as an affirmative defense, CDCR was saying even if Bitner and Herrera’s allegations were accurate, CDCR could not be held liable because of this immunity. CDCR moved for summary judgment using this theory.

The LVN’s countered that the immunity did not apply to FEHA claims. They also argued that their injuries were not proximately caused by the prisoners and therefore the Section 844.6 immunity was not applicable. The superior court disagreed with both of these arguments and granted summary judgment in favor of CDCR. The LVN’s appealed to the California Court of Appeal.

The Court of Appeal analyzed the alleged exception to Section 844.6 immunity first, explaining that the law outlined a variety of exceptions to the rule of immunity, but that FEHA was not one of the exceptions.

The Court of Appeal then analyzed the second claim –that Section 844.6 was inapplicable to their case because the sexual harassment was not proximately caused by the prisoners. Instead, the LVN’s argued they were injured because CDCR failed to intervene on their behalf. The Court of Appeal noted this argument was farfetched because an injury can have more than one proximate cause. Here, the inmates’ harassing conduct was clearly a proximate cause of the injury of sexual harassment. The Court of Appeal held that summary judgment on this issue was proper.

Bitner v. Department of Corrections and Rehabilitation (2023) 87 Cal.App.5th 1048.

Note:

This case shows the broad scope of the Government Code Section 844.6 immunity. The California Supreme Court has also applied the Government Code Section 820.2 discretionary immunity to bar a superintendent’s FEHA claims against school board members who voted to terminate the superintendent’s contract. Caldwell v. Montoya, 10 Cal.4th 972 (1985).

California Prison System Ordered To Remediate ADA Violations As To Prisoners With Disabilities.

In 1994, a class of California prisoners known as the “Armstrong class” sued the California Department of Corrections and Rehabilitation (CDCR) and the Governor alleging widespread violations of the Americans with Disabilities Act (ADA) and the Rehabilitation Act (RA). They claimed the prison staff discriminated against them based on disability, and failed to offer them reasonable accommodations. The district court held that the correctional officers’ treatment of disabled prisoners violated the ADA/ RA and ordered the CDCR to produce a plan describing how it would remedy the violations.

In 2020, the Armstrong class returned to court alleging pervasive violations of class members’ ADA rights. At the R.J. Donovan Correctional Facility (RJD), for example, auditors documented instances of correctional officers “forcefully removing inmates from wheelchairs” and assaulting inmates who were secured with restraint equipment.

A “strike team” went to RJD to investigate the auditors’ reports. The strike team found 48 of 102 inmates interviewed “provided specific, actionable information, relevant to the foundational concerns”. The inmates stated the officers targeted disabled inmates for abuse and retaliated against those who reported it. In one “illustrative example” a mobility-impaired inmate requested not to be handcuffed behind his back because he used a cane and a walker. The RJD officer slammed the individual to the ground where he hit his head and went unconscious for several seconds. When he came to, the officer kneed his throat and then kneed his face. The Court noted numerous accounts of mobility-impaired class members being thrown to the ground after asking for handcuffing accommodations. Officers also denied requests for wheelchair pushers, and would not allow showers after incontinence incidents. One strike-team member noted, “I have never heard accusations like these in all my years…This is a very serious situation and needs immediate attention. If there is any means of installing cameras immediately, I would strongly suggest it…”

In addition, class members recounted several alarming incidents of retaliation. In one incident, an officer refused to help a disabled individual lift a heavy package of mail. The individual replied he intended to file a complaint, and in response, the officer peppersprayed him in the face, hit him in the face with the canister, and then kicked him. In another incident, an officer threatened to file a fabricated rules-violation report against a class member if he reported the officer’s earlier failure to accommodate him. Many reported they were afraid to request accommodations due to the threat of retaliation.

The Armstrong class requested the district court to impose further remedial measures at RJD based on the State’s failure to investigate and discipline staff in response to these allegations of misconduct. The court granted the request in large part, finding the inmate’s accounts credible because of the consistency among them. Moreover, the CDCR failed to submit any counter evidence.

The Armstrong class members housed in five other California State prisons also submitted declarations regarding officer misconduct. Although the prison did submit counter evidence to some of those claims, the court still sided with the Armstrong class. The court found that the root cause of these ongoing violations was the ineffectiveness of the CDCR’s system for investigating and disciplining staff, leading to a “staff culture” that condones abuse and retaliation against disabled inmates. The district court concluded additional remedial measures were necessary to prevent further ADA violations. The court ordered CDCR to draft new remedial plans, which had to include, among other things, installing fixed surveillance cameras and bodyworn cameras, adding more staff training, implementing anti-retaliation mechanisms, and reforming the staff complaint, investigation, and discipline processes. The CDCR appealed. It alleged, that the orders did not comport with the Prison Litigation Reform Act (PLRA).

The Ninth Circuit Court of Appeals decided that the record supported the district court’s decision. The PLRA says that a court “shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.” Here, the district court not only found ongoing violations, but that a common source of those violations t was insufficient accountability for officers’ misconduct. The overwhelming and consistent declarations by aggrieved class members, testimony from experts, the auditor’s memo, the strike-team report, a report from the CA Office of the Inspector General, and CDCR’s own data showed systemic failures of accountability. The Ninth Circuit agreed, opining that a lack of accountability creates a vicious cycle that escalates into a prison-wide culture of abuse.

Armstrong v. Newsom (2023 S.O.S. 20-16921).

Note:

This case illustrates that promptly investigating and addressing misconduct through appropriate discipline is essential to the lawful operation of law enforcement and an appropriate staff culture.