L.W. v. Grubbs

• Decision Date: 18 April 1996
• Docket Number: 95-35968,Nos. 95-35624,s. 95-35624
• Parties: 11 IER Cases 1735, 96 Cal. Daily Op. Serv. 5956, 96 Daily Journal D.A.R. 9749 L.W., * Plaintiff-Appellee, v. Dee GRUBBS; Thomas Nelson; Marlin Hutton; Richard Hill, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 894

92 F.3d 894

11 IER Cases 1735, 96 Cal. Daily Op. Serv. 5956,

96 Daily Journal D.A.R. 9749

L.W., ^* Plaintiff-Appellee, v. Dee GRUBBS; Thomas Nelson; Marlin Hutton; Richard Hill Defendants-Appellants.

Nos. 95-35624, 95-35968.

United States Court of Appeals Ninth Circuit.

Submitted April 18, 1996. ^**

Decided Aug. 9, 1996.

Rives Kistler, Assistant Attorney General, Salem, Oregon, for defendants-appellants.

Kerry M.L. Smith, Smith & Fjelstad, Gresham, Oregon, for plaintiff-appellee.

Appeals from the United States District Court for the District of Oregon, Helen J. Frye, District Judge, Presiding. D.C. No. 90-661-FR.

Before: GOODWIN, THOMPSON and FERNANDEZ, Circuit Judges.

Opinion by Judge GOODWIN; Partial Concurrence and Partial Dissent by Judge FERNANDEZ.

GOODWIN, Circuit Judge:

A female employee was assaulted and injured by a predatory inmate in a state institution and a jury awarded her $325,000 in damages against her supervisor. He appeals the judgment. We reverse.

PROCEDURAL HISTORY

In a prior appeal of this case, we reversed the Fed.R.Civ.P. 12(b)(6) dismissal of the complaint, holding that the complaint "alleged facts demonstrating official deliberate indifference in creating the danger." L.W. v. Grubbs, 974 F.2d 119, 123 (9th Cir.1992) (L.W.I ), cert. denied, 508 U.S. 951, 113 S.Ct. 2442, 124 L.Ed.2d 660 (1993). We did not then discuss what "mental state beyond 'mere negligence' is required for due process third party claims" because the facts alleged in the complaint, if true, demonstrated deliberate indifference, on the part of the state officials, in creating the danger. L.W. I, 974 F.2d at 122-23.

On remand, the district court granted summary judgment in favor of all the original defendants, except for Grubbs, because there was no evidence that others were responsible for creating the danger to the plaintiff. Grubbs, plaintiff's immediate supervisor, went to trial.

In explaining the use of a special verdict form, the district court instructed the jury that Grubbs could be found to have violated plaintiff's federally protected rights if he affirmatively created the danger that resulted in her injury and if, in creating the danger, he acted with gross negligence, recklessness or deliberate indifference. When the jury returned the verdict form, the verdict found that Grubbs had acted with gross negligence but not with recklessness or deliberate indifference.

Because this court had not provided clear guidance to the trial courts on the degree of culpability necessary to support Section 1983 liability against a supervisory employee whose actions or inactions left a subordinate employee in a position of danger in an institution populated by predatory inmates, the court entered judgment on the verdict, and this appeal followed.

FACTS

Defendant Grubbs, a registered nurse, is in charge of the medical clinic at MacLaren School for Boys, an institution housing juvenile males under various levels of custodial supervision.

On August 15, 1989 the plaintiff was working the swing shift in the clinic. Prior to her arrival at work, another nurse, Elita Sifuentez, asked for a "student" to help her around the clinic. David Blehm, an inmate known to be a sex offender, volunteered and Sifuentez cleared his participation with Sherm Maupin, the person responsible for assigning students to do various jobs around the school. Maupin approved Blehm to work at the clinic until 4:00 p.m., the time when the male staff would be leaving the clinic. Maupin knew that Blehm was a sex offender and told the defendant that he did not want him to be working one-on-one with any women.

The plaintiff began her shift that day at 3:00 p.m. Later that afternoon, the kitchen called to inform the clinic that the kitchen did not have a "cart-boy" to bring the evening meal to the clinic. Grubbs told the plaintiff that she could use Blehm as a "cart-boy." Blehm delivered the food and left without incident. Grubbs then left the clinic at about 4:30 p.m.

After Grubbs had left, the plaintiff called Blehm back to the clinic so that he could fix her a pizza. The plaintiff, now alone in the clinic, worked while Blehm prepared the pizza. Then, while Blehm was alone with the plaintiff, he attacked her and attempted to rape her. The assault stopped when Blehm heard the phone ring.

DISCUSSION

While the parties have briefed a number of issues, only one critical determination must be made at this time by this court: the standard of culpability upon which a state official can be held liable under Section 1983 to a prison employee for harm inflicted upon the employee by a prisoner. To put it another way, in this circuit, is something less than deliberate indifference enough to submit such a case to a jury? The answer is "no."

I. The Proper Standard of Culpability

This Court has been consistent on at least one point: We have not deviated from the principle that deliberate indifference on the part of the responsible official, to the safety of employees in the presence of known danger, created by official conduct, is sufficient to establish a due process violation under Section 1983 for injury caused in part by a state created danger. See, e.g., L.W. I, 974 F.2d at 122-23; Wood v. Ostrander, 879 F.2d 583, 588 (9th Cir.1989), ¹ cert. denied, 498 U.S. 938, 111 S.Ct. 341, 112 L.Ed.2d 305 (1990). We have not, however, expressed with clarity the legal principles by which the government's supervisory employees become liable for damages caused by third parties to the various types of victims who seek money damages under § 1983 for violations of their rights to "substantive due process" of law.

Putting aside momentarily the linguistic difficulties in mixing substantive law and procedural law to invent new constitutional rights, we have more or less accepted the notion that torts can be constitutionalized in order to provide remedies for victims who can bring their claims within some framework or theory that will justify the remedy, although we have yet to decide whether some conduct less culpable than deliberate indifference would suffice.

To complicate matters for the trial bench, we have rather loosely spoken of gross negligence in some § 1983 cases as a ground for imposing liability. These dicta have, understandably, confused the trial bench and have infused plaintiffs with high hopes of civil rights recovery, plus attorney fees, against their supervisors in actions against municipal and state government functionaries who do not share the governmental unit's immunity from respondeat superior or vicarious liability of the employer.

II. Prior Ninth Circuit Cases Distinguished

In our amended opinion in Wood v. Ostrander we stated that the "law [with respect to the standard of culpability] in this circuit is unclear." Wood, 879 F.2d at 587. That statement, actually an understatement, is still true.

We acknowledged that both our earlier opinion in that case, Wood v. Ostrander, 851 Nonetheless, the Wood decision did not address the minimum standard of culpability because the question presented by the appeal, from a summary judgment, was whether on that record a jury could conclude that the defendant had acted with deliberate indifference. Wood, 879 F.2d at 588. Unfortunately, because we did not take that opportunity to put gross negligence to rest, it, like a neoplasm, has metastasized and found its way into other cases.

                F.2d 1212, 1214-15 (9th Cir.1988), and Fargo v. City of San Juan Bautista, 857 F.2d 638, 640 (9th Cir.1988), had stated that either gross negligence or reckless conduct would be sufficient to establish a due process violation.  Wood, 879 F.2d at 587.   But then we stepped back from those statements because the Supreme Court's City of Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989), 2 "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 [a state trooper]."  Wood, 879 F.2d at 588
                

For example, the plaintiff argues that the gross negligence rule stated in Fargo has not changed because in Redman v. County of San Diego, 942 F.2d 1435 (9th Cir.1991)(en banc), cert. denied, 502 U.S. 1074, 112 S.Ct. 972, 117 L.Ed.2d 137 (1992), this Court stated that gross negligence or recklessness gives rise to a due process violation outside of the jail or prison context. Redman, 942 F.2d at 1440 n. 6 (citing Fargo ). That statement, however, was dictum because Redman dealt only with the duty the state owes to pretrial detainees who are injured, not to state prison employees unsatisfied with their workers' compensation remedies. Both the plaintiff here, and the en banc court in Redman, overlooked the Wood caution which limited Fargo.

The plaintiff next points to our decision in Neely v. Feinstein, 50 F.3d 1502 (9th Cir.1995) where we stated that hospital officials are liable under section 1983 if "they exhibit conscious indifference amounting to gross negligence." Neely, 50 F.3d at 1508 (internal quotations and citation omitted). That decision was predicated on our reasoning in the first Wood v. Ostrander opinion that we later amended ³ and upon Fargo. Neely, 50 F.3d at 1508. Furthermore, the plaintiff in Neely was in state custody at a mental institution and therefore the state had a "special relationship" with the plaintiff. While Neely can be distinguished on its facts from the present case, its language (which was not necessary to the decision) is either incorrect to the extent that it approves the gross negligence standard, or it must be limited to the claims of inmate plaintiffs injured because of a miscarriage of the "professional judgment of a [government] hospital official" in the context of a captive plaintiff.

Finally, the plaintiff identifies Fuller v. City of Oakland, 47 F.3d 1522 (9th Cir.1995) as another case in which ...