Butler ex rel. Biller v. Bayer, 44749.

Citation168 P.3d 1055
Decision Date11 October 2007
Docket NumberNo. 44749.,44749.
PartiesGeorge BUTLER, by and through his Guardian Ad Litem, David BILLER, Appellant, v. Robert BAYER, Director, Nevada Department of Prisons; Sherman Hatcher, Warden, Southern Desert Correctional Center; Richard B. Smith, Corrections Officer; Nevada Department of Prisons; and The State of Nevada, Respondents.
CourtSupreme Court of Nevada

By the Court, MAUPIN, C.J.

In this appeal, we examine the duty of prison officials to protect incarcerated persons from attacks by other prisoners, and the duty of care owed by prison officials when releasing physically and mentally disabled inmates. We also examine the extent to which the Nevada Department of Corrections, as a state actor, is entitled to discretionary-act immunity in such matters under NRS 41.032(2).1

With respect to the duty of prison officials to protect inmates from attacks by other inmates, we adopt the approach taken by the Restatement (Second) of Torts, which defines the duty as one of reasonable care to prevent intentional harm or to avoid an unreasonable risk of harm, when such harm is foreseeable. Harm is foreseeable when prison officials actually know that an inmate is at risk, that the attacking inmate is dangerous, or when prison officials otherwise have reason to anticipate the attack. In this the appellant never informed prison officials that he was afraid for his personal safety, and officials were not otherwise "on notice" of an imminent attack, prison officials had no specific duty to protect the appellant from the unforeseeable attack that occurred. Consequently, summary judgment was appropriate on the appellant's claims related to the direct attack.

Regarding the duty of care when prison officials release disabled inmates, we conclude that general negligence standards apply, so that prison officials have a duty to exercise reasonable care to avoid foreseeable harm in releasing a disabled inmate. We further conclude that the action of releasing inmates does not require consideration of social, economic, or political policy, indicating that prison officials are not entitled to discretionary-act immunity for their actions. Here, because the manner in which prison officials released the appellant, a disabled inmate, could lead a jury to reasonably find that some of appellant's injuries were a foreseeable result of the manner in which he was released, summary judgment on the appellant's claims related to his release was improper.


Appellant George Butler was incarcerated in unit five of the Nevada Southern Desert Correctional Center (SDCC) near Indian Springs, Nevada. In October 1997, a quarrel over a drug debt escalated into a race-based brawl between multiple residents of the unit, including Butler. As a result of the incident, prison officials placed the facility on "lock-down" status. Although Butler had thrown rocks at several brawl participants, he made no request for protection after the altercation and never expressed concern for his safety to prison authorities.

The next morning, respondent Richard Smith, a correctional officer at the prison facility, was assigned to work in the "control bubble" at the center of unit five. Although advised that the prison was on lockdown status, Smith did not know the reason for this security measure. No policy other than common courtesy dictated that officers coming on shift be told the reasons for a lockdown. While on duty, Smith opened the cell doors of the wing of unit five where Butler was housed to allow the inmates to gather in the corridor to await the arrival of a "breakfast escort team." He then left the control bubble to manually release some of the doors in another wing. During this time, a group of inmates involved in the previous day's incident attacked Butler in his cell. Smith was the only correctional officer deployed to the unit during the events in question.

As a result of the attack, Butler suffered permanent spinal cord injury and brain damage, rendering him a spastic quadriplegic. Although he can eat solid food, he must receive supplemental hydration via gastric intubation, i.e., a "g-tube." He cannot speak or write and essentially functions at a ten-year-old level.

Some two years later, given his condition, the Nevada Department of Corrections, then the Nevada Department of Prisons (NDOP), commenced the formulation of a plan for Butler's release. This involved contact with Butler's former girlfriend, Sheila Woods. NDOP caseworker Gloria Lucero-Lawrence met with Woods on at least one occasion to discuss her taking custody of Butler and the necessity of equipping her trailer with a wheelchair ramp, hospital bed, and other medical equipment. Although Woods expressed concern that she would be unable to make the necessary preparations, she agreed she would "try" to provide housing and care for Butler.

On the day of Butler's release, Lucero-Lawrence arrived at Woods' residence to ensure that Woods was prepared for Butler's arrival. Woods was not at home at that time. Later that afternoon, after Woods had returned home, a group of NDOP officers delivered Butler to Woods' trailer. The trailer had not been equipped with a wheelchair ramp or hospital bed, and Woods had not made any other preparations to receive Butler into her home. Despite the obvious lack of preparation and the officers' own doubts that Woods would be able to lift or move Butler on her own, they left Butler with Woods and returned to their regular employment duties. Woods called 911 two weeks later after she became concerned about Butler's pale appearance and his inability to eat or drink. Butler was taken by ambulance to a local hospital where doctors found him to be seriously malnourished, dehydrated, and suffering from an electrolyte imbalance. Butler remained in the hospital for several months and was eventually released to a nursing home.

In February 2000, Butler filed a complaint pursuant to 42 U.S.C. §§ 1983 and 1988 against Robert Bayer (then Director of the NDOP), Howard Skolnik (then Assistant Director of the NDOP), Sherman Hatcher (SDCC Warden), the NDOP and the State of Nevada in United States District Court for the District of Nevada.2 In his complaint, Butler alleged that the individual defendants had deprived him of adequate protection from prisoner violence and adequate medical care, in violation of the Eighth Amendment's prohibition against cruel and unusual punishment. Butler also asserted claims of common-law negligence and negligence by abandonment against all defendants.

In February 2002, following extensive discovery, the United States District Court entered summary judgment in favor of the federal action defendants. The court determined that, because Butler failed to inform any SDCC official that he feared for his safety, the defendants were entitled to qualified immunity from Butler's 42 U.S.C. § 1983 claims, since their conduct did not violate any clearly established constitutional right of which reasonable officers would have known. In the alternative, the court determined that the individual defendants did not act with the "deliberate indifference" necessary to establish an Eighth Amendment violation. Declining to exercise supplemental jurisdiction, the court dismissed Butler's remaining negligence claims without prejudice under 28 U.S.C. § 1367(c)(3). Butler appealed, and the United States Court of Appeals for the Ninth Circuit affirmed.3

Shortly thereafter, Butler filed a complaint in the Eighth Judicial District Court of the State of Nevada. He subsequently filed an amended complaint, naming Robert Bayer, Sherman Hatcher, Richard Smith, the State of Nevada and other unknown persons and corporations as defendants (collectively "state action defendants"). The amended complaint alleged claims of negligence for failure to protect Butler from attack and negligence by abandonment, and Eighth Amendment violations under 42 U.S.C. § 1983. The state action defendants filed a joint motion for summary judgment which the district court granted. In short, the court concluded that res judicata and qualified immunity principles barred Butler's negligence and civil rights claims based on the federal court's previous factual findings, and that summary judgment was mandated on the claim of negligence by abandonment because the defendants were under no duty to provide medical care to Butler once he was released. Butler appeals.


Butler first argues that the district court erred in entering summary judgment with respect to his federal civil rights claims against Smith.4 He additionally argues that the district court erred in entering summary judgment on his state law negligence claims. We discuss each of these contentions in turn.

Standard of review

This court reviews a summary judgment order de novo.5 We have previously explained that "[s]ummary judgment is appropriate when the pleadings, depositions, answers to interrogatories, admissions, and affidavits on file show that there exists no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."6 A genuine issue of material fact exists if, based on the evidence presented, a reasonable jury could return a verdict for the nonmoving party.7

Civil rights claims against Smith

To successfully assert a civil rights claim under 42 U.S.C. § 1983, Butler must show that Smith acted under color of state law to deprive him of a right, privilege, or immunity protected by the Constitution or laws of the United States.8 Butler asserts that summary judgment was improper because Smith, a prison officer, deprived Butler of his Eighth Amendment rights by failing to protect Butler from attack by other inmates. Smith responds that summary...

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