879 F.2d 583 (9th Cir. 1989), 87-3924, Wood v. Ostrander

Docket Nº:87-3924.
Citation:879 F.2d 583
Party Name:Linda K. WOOD, Plaintiff-Appellant, v. Steven C. OSTRANDER; Neil Maloney, Defendants-Appellees.
Case Date:June 27, 1989
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 583

879 F.2d 583 (9th Cir. 1989)

Linda K. WOOD, Plaintiff-Appellant,


Steven C. OSTRANDER; Neil Maloney, Defendants-Appellees.

No. 87-3924.

United States Court of Appeals, Ninth Circuit

June 27, 1989

Argued and Submitted Feb. 3, 1988.

Reargued and Resubmitted on Rehearing Nov. 28, 1988.

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[Copyrighted Material Omitted]

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Paul Lindenmuth and Neil J. Hoff, Tacoma, Wash., for plaintiff-appellant.

Theresa L. Fricke, Asst. Atty. Gen., Olympia, Wash., for defendants-appellees.

Appeal from the United States District Court for the Western District of Washington.

Before FLETCHER and THOMPSON, Circuit Judges, [*] and CARROLL, District Judge. [**]

Page 586

DAVID R. THOMPSON, Circuit Judge:

Linda Wood brought this action under 42 U.S.C. Sec. 1983 against Washington State Trooper Steven Ostrander and his wife, and Neil Maloney, Chief Officer of the Washington State Patrol and his wife. Wood appeals the district court's summary judgment dismissal of the case as to all defendants. We affirm the district court's dismissal as to Maloney and his wife, but reverse the dismissal as to Ostrander and his wife. 1


At 2:30 a.m., on the morning of September 23, 1984, Trooper Ostrander pulled a car to the side of the road for driving with its high beams on. Ostrander determined that the driver, Robert Bell, was intoxicated and placed him under arrest. Ostrander called for a tow truck to have the car impounded, and returned to the car and removed the keys. Wood, who was sitting in the car, asked Ostrander how she would get home. Ostrander replied that he was sorry, but that Wood would have to get out of the car. These facts are not disputed. Wood claims that Ostrander simply returned to his patrol car and drove away. Ostrander claims that he offered to call a friend or family member who could give Wood a ride home, but that she declined the offer. Although Wood claims that she did not see any open business at the time Ostrander drove away, Ostrander claims that a Shell service station and a Seven-Eleven store were clearly visible and open for business. Ostrander further claims that Wood was picked up by an unknown driver before Ostrander drove away, although Bell and Wood dispute this.

Ostrander left Wood near a military reservation in the Parkland area of Pierce County, which has the highest aggravated crime rate in the county outside the City of Tacoma. The temperature was fifty degrees and Wood was wearing only a blouse and jeans. Wood alleges that after walking one-half block toward her home, which was five miles away, and having turned down rides offered by three or four strangers, she accepted a ride with an unknown man. The driver took Wood to a secluded area and raped her.

The district court denied defendants' first summary judgment motion, ruling that Ostrander's actions could not be characterized as merely negligent. Subsequently, the district court granted defendants' second motion for summary judgment, on the ground that Ostrander was entitled to good faith qualified immunity, and that Ostrander owed no "affirmative constitutional duty of protection" to Wood. 2

We review the district court's grant of summary judgment de novo to determine whether there is any genuine issue of material fact and whether the substantive law was correctly applied. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir.1986). All facts in the record and inferences drawn from them must be viewed in the

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light most favorable to the non-moving party. Clipper Exxpress v. Rocky Mountain Motor Tariff Bureau, Inc., 690 F.2d 1240, 1250 (9th Cir.1982), cert. denied, 459 U.S. 1227, 103 S.Ct. 1234, 75 L.Ed.2d 468 (1983).


I. Viability of the Section 1983 Claim

To sustain an action under section 1983, a plaintiff must show (1) that the conduct complained of was committed by a person acting under color of state law; and (2) that the conduct deprived the plaintiff of a federal constitutional or statutory right. Rinker v. County of Napa, 831 F.2d 829, 831 (9th Cir.1987) (citing Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981)). It is not disputed that in arresting Bell and impounding the car, Ostrander was acting under color of state law. Ostrander argues, however, that Wood has failed to state a claim cognizable under section 1983 because, first, his conduct was at most negligent and, second, Wood has adequate state remedies to pursue her claim. These issues are considered in turn.

  1. The "Mere Negligence" Bar

    In Daniels v. Williams, 474 U.S. 327, 330-32, 106 S.Ct. 662, 664-65, 88 L.Ed.2d 662 (1986), and Davidson v. Cannon, 474 U.S. 344, 347, 106 S.Ct. 668, 670, 88 L.Ed.2d 677 (1986), the Supreme Court held that mere negligence or lack of due care by state officials does not trigger the protections of the fourteenth amendment and therefore does not state a claim under section 1983. In doing so, the Court overruled that part of Parratt, 451 U.S. at 536-37, 101 S.Ct. at 1913, which held that a negligent loss of property by state officials could be a "deprivation" under the due process clause. Daniels, 474 U.S. at 330-31, 106 S.Ct. at 664-65. However, the Court expressly left open the question "whether something less than intentional conduct, such as recklessness or 'gross negligence,' is enough to trigger the protections of the Due Process Clause." Id. at 334 n. 3, 106 S.Ct. at 667 n. 3.

    A number of circuits have held recklessness or gross negligence sufficient to state a section 1983 claim; none has held that only intentional misconduct will suffice. See, e.g., Taylor v. Ledbetter, 818 F.2d 791, 793 (11th Cir.1987) (en banc) (claim that state officials "were 'grossly negligent' or 'deliberately indifferent' " is "sufficient to overcome either a Daniels or Davidson bar"); Vinson v. Campbell County Fiscal Court, 820 F.2d 194, 199-200 (6th Cir.1987) (gross negligence cognizable under section 1983); White v. Rochford, 592 F.2d 381, 385 (7th Cir.1979) (gross negligence or reckless disregard for the safety of others cognizable); see also Davidson v. O'Lone, 752 F.2d 817, 828 (3rd Cir.1984) (en banc), aff'd sub nom., Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986) (gross negligence or reckless indifference sufficient) (plurality view). 3

    The law in this circuit is unclear. In Fargo v. City of San Juan Bautista, 857 F.2d 638 (9th Cir.1988) we stated that "grossly negligent or reckless official conduct that infringes upon an interest protected by the due process clause is actionable under section 1983." Id. at 640. We based this statement, however, on the first opinion in this case, Wood v. Ostrander, 851 F.2d 1212, 1214-15 (9th Cir.1988). The first Wood opinion has been amended by this opinion. Moreover, the gross negligence standard which we articulated in our first Wood opinion was based on Ketchum v. County of Alameda, 811 F.2d 1243 (9th Cir.1987). Ketchum involved a claim by a woman who was raped by an escaped inmate. The victim contended the county had been grossly negligent in maintaining security at the facility where the inmate had been confined. We affirmed summary

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    judgment in favor of the state defendants on the ground that the victim, as a member of the public at large, did not have "a special relationship with the state or the criminal," and hence "had no federal constitutional right to state protection from criminal attacks." Id. at 1247. We did not decide the question of what culpability standard would have been applicable if such a relationship had existed. Id. at 1246 n. 3.

    The Supreme Court has recently adopted the standard of deliberate indifference as the culpability standard necessary to establish section 1983 liability of a municipality based upon a claim that the municipality's lack of training for police officers was a policy causing a violation of a constitutional right of a person subject to police action. City of Canton v. Harris, --- U.S. ----, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). The Court in Canton expressly reserved the question whether the deliberate indifference standard would also apply to "an underlying claim of a constitutional violation." City of Canton v. Harris, 109 S.Ct. at 1204 n. 8. Despite this reservation, however, Canton calls into question our statements in Fargo and in our prior opinion in this case that a showing of gross negligence will suffice to establish the requisite level of fault in a section 1983 action against an individual state actor such as Trooper Ostrander.

    Here, however, Wood has raised a genuine issue of fact tending to show that Trooper Ostrander acted with deliberate indifference to Wood's interest in personal security under the fourteenth amendment. See Taylor v. Ledbetter, 818 F.2d at 793, 795-97 (deliberate indifference to victim's well-being is more than negligence and supports section 1983 claim); Davidson v. O'Lone, supra, 752 F.2d at 828; see also Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976), reh'g denied, 429 U.S. 1066, 97 S.Ct. 798, 50 L.Ed.2d 785 (1977) (prison officials' deliberate disregard of prisoner's serious illness or injury violates eighth amendment and is cognizable under section 1983). The rationale underlying Daniels' bar of negligence-based section 1983 claims is that mere lack of due care, such as leaving a pillow on the prison stairs (Daniels ) or mislaying an inmate's property (Parratt ) is "quite remote" from the fourteenth amendment's purpose of redressing abuses of power by state officials. 474 U.S. at 332, 106 S.Ct. at 665. In the present case, the facts put in issue by Wood--that Ostrander arrested the driver, impounded the car, and left Wood by the side of the road at night in a high-crime area show an assertion of government power which, according to Wood's version of the case, tends to show a disregard for Wood's safety amounting to deliberate indifference....

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