811 F.2d 1243 (9th Cir. 1987), 84-2510, Ketchum v. Alameda County

Docket Nº:84-2510.
Citation:811 F.2d 1243
Party Name:Cynthia KETCHUM, Plaintiff-Appellant, v. COUNTY OF ALAMEDA; Alameda County Board of Supervisors; Sheriff Glenn Dyer; and Chief Ron Cain, Defendants-Appellees.
Case Date:March 02, 1987
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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811 F.2d 1243 (9th Cir. 1987)

Cynthia KETCHUM, Plaintiff-Appellant,


COUNTY OF ALAMEDA; Alameda County Board of Supervisors;

Sheriff Glenn Dyer; and Chief Ron Cain,


No. 84-2510.

United States Court of Appeals, Ninth Circuit

March 2, 1987

Argued and Submitted Jan. 12, 1987.

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Valerie A. Murphy, Suzanne M. Trimble, Sacramento, Cal., for plaintiff-appellant.

Kathy M. Banke, Oakland, Cal., for defendants-appellees.

Appeal from the United States District Court for the Northern District of California.

Before CHAMBERS, NELSON and NOONAN, Circuit Judges.

NELSON, Circuit Judge:

Cynthia Ketchum brought suit under 42 U.S.C. Sec. 1983 (1982) against the County of Alameda and several county officers for their alleged gross negligence in failing to maintain security at an Alameda rehabilitation facility. Ketchum appeals the district court's grant of summary judgment in favor of the defendants. We have jurisdiction under 28 U.S.C. Sec. 1291 (1982). We affirm.


In 1981 James Hampton was incarcerated as a minimum security inmate at the Santa Rita Rehabilitation Facility in Alameda County. Hampton was being held at the facility for an alleged parole violation and was awaiting trial on burglary charges. On July 8, 1981, Hampton escaped the facility by cutting through a window security screen and climbing a fence. On September 17, 1981, more than two months after Hampton's escape, plaintiff-appellant Cynthia Ketchum was allegedly assaulted and raped by Hampton in her home in Sacramento, over fifty miles from the Santa Rita facility. Hampton was subsequently arrested and convicted of committing six rapes in Sacramento County.

Cynthia Ketchum filed suit under 42 U.S.C. Sec. 1983 (1982) 1 against the County of Alameda, the County Board of Supervisors, and certain other county officers, alleging that they had been grossly negligent in maintaining security at the Santa Rita facility, thereby allowing Hampton's escape and causing the deprivation of her constitutional right to privacy and security of property. Ketchum did not allege any special relationship between herself and Hampton or between herself and the defendants.

Defendants moved for summary judgment on the grounds that (1) the criminal acts of a prison escapee do not constitute state action; and (2) there is no constitutional right to be protected from criminal acts of third parties absent a special relationship between the victim and the state or the victim and the criminal. The defendants based their argument that Ketchum failed to state a cause of action under Sec. 1983 on the following undisputed facts: (1) over two months elapsed between the escape and the rape; (2) defendants had no knowledge that Ketchum was in

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any special danger from Hampton that distinguished her from the public at large; and (3) no special relationship existed between Ketchum and the defendants.

On January 4, 1984, the district court denied defendants' motion for summary judgment. Defendants filed a motion for reconsideration. The district court granted the motion for reconsideration, reversed its earlier denial of defendants' motion for summary judgment, and granted defendants' motion for summary judgment on August 30, 1984. Ketchum filed a timely notice of appeal on September 27, 1984.


1. Whether the district court erred in concluding that Hampton's rape did not constitute state action under 42 U.S.C. Sec. 1983.

2. Whether the district court erred in concluding that Ketchum had no constitutional right to be protected by the County of Alameda against criminal acts of third parties absent a special relationship with the state or the criminal.


This court reviews a district court's grant of a motion for summary judgment de novo. Lew v. Kona Hospital, 754 F.2d 1420, 1423 (9th Cir.1985). The evidence is viewed in the light most favorable to the party opposing the motion. Id. The appellate court affirms only if there is an absence of any genuine issue of material fact and if the moving party is entitled to judgment as a matter of law. Id.


This court has noted that the first question in any Sec. 1983 2 action is whether the section is the appropriate basis for a remedy. Haygood v. Younger, 769 F.2d 1350, 1353 (9th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 3333, 92 L.Ed.2d 739 (1986). A Sec. 1983 claim requires two essential elements: (1) the conduct that harms the plaintiff must be committed under color of state law (i.e., state action), and (2) the conduct must deprive the plaintiff of a constitutional right. Id., 106 S.Ct. at 1354.


The United States Supreme Court addressed the issue of state action in the context of third-party crimes in Martinez v. California, 444 U.S. 277, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980). A parolee, who had been released from state prison five months earlier, murdered a young girl. The girl's parents brought an action under Sec. 1983 against the state officers responsible for the parole decision. The Court concluded that although the parole decision was state action, the act of a parolee five months after his release "cannot be fairly characterized as state action." Id. at 285, 100 S.Ct. at 559. The Court reasoned that the parolee was "in no sense an agent of the parole board" and that the girl's murder was "too remote a consequence of the parole officers' action to hold them responsible under the federal civil rights law." Id. In discussing remoteness, the Court considered not only the lapse of time, but also the fact that the decedent did not stand in any special relationship to the parolee from which the state officers might have inferred a special danger to her, distinguishable from the danger the public at large faces from parolees. Id. The Court, in effect, found that the parole officers' decision did not proximately cause the deprivation of the girl's life despite the fact that the parole board knew, or should have

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known, that the prisoner's release "created a clear and present danger" that a crime would occur. Id. at 280, 100 S.Ct. at 556.

The analysis in Martinez is particularly germane to the present case because the plaintiffs, like Ketchum, had no recourse under state tort law. The same California statute grants absolute immunity to public employees and entities from liability for crimes of parolees or escapees. Cal.Gov't Code Sec. 845.8 (West 1980). The Court upheld the constitutionality of the California statute, see Martinez, 277 U.S. at 280-83, 100 S.Ct. at 556-58, and despite the absence of an alternative state remedy, held that there was no cognizable claim under Sec. 1983. Id. at...

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