Leer v. Murphy

Decision Date04 April 1988
Docket NumberNo. 87-3501,87-3501
Citation844 F.2d 628
PartiesWilliam LEER; Robert Larry Emerhiser, Plaintiffs-Appellants, v. Al MURPHY; Darrell Gardner; Arvin Arave, Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Lance D. Churchill, Churchill & Vander Boegh, Boise, Idaho, for plaintiff-appellant, Robert Larry Emehiser.

Amy S. Howe, Bistline Law Offices, Boise, Idaho, for plaintiffs-appellants.

Kathryn A. Sticklen, Quane, Smith, Howard & Hull, Boise, Idaho, for defendants-appellees.

Appeal from the United States District Court for the District of Idaho.

Before WALLACE, POOLE and O'SCANNLAIN, Circuit Judges.

WALLACE, Circuit Judge:

A fellow prisoner stabbed Emehiser and Leer (inmates) at the Idaho State Correctional Institution (prison). The inmates brought suits in federal district court under 42 U.S.C. Sec. 1983, seeking damages from various state employees in the Idaho Department of Corrections (prison officials) in their official and individual capacities. The inmates alleged that the prison officials' failure in certain aspects of prison administration caused the fellow inmate to stab them and thereby deprived them of their fourteenth amendment right to due process and their eighth amendment right to be free from cruel and unusual punishment. The prison officials were granted summary judgment and the inmates timely appealed. The trial court had jurisdiction pursuant to 28 U.S.C. Sec. 1343, except for the inmates' claims against the prison officials in their official capacities, which it held were barred by the eleventh amendment. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291, and we affirm.


On August 28, 1983, Emehiser was standing in line awaiting dinner at the prison. Frank and Levi Martinez (the Martinez brothers) were in line ahead of Emehiser. The Martinez brothers allowed another prisoner to enter the line ahead of Emehiser. Emehiser objected and argued with the Martinez brothers. Challenges ensued, but no fight resulted.

Later that evening, the Martinez brothers went to Emehiser's cell. When he responded to a knock, Emehiser was jerked out of the cell and stabbed. As the Martinez brothers attempted to flee, Emehiser grabbed a crutch and caught and struck one of the brothers.

Leer, who was in an adjacent cell and had heard the commotion arising from the initial assault on Emehiser, intervened in the altercation. While Leer was holding one of the Martinez brothers down, the other stabbed him.

Correctional Officer Tisdale was on duty at the time of both stabbings. He observed the altercation between the inmates and the Martinez brothers. Tisdale went to the scene, assisted the inmates to the unit office, and telephoned for medical and security assistance.

Subsequently, the inmates filed separate actions against the prison officials: Murphy, Director of the Idaho Department of Corrections; Gardner, Warden of the prison; Arave, Deputy Warden and Chief of Inmate Management of the prison; Wright, Deputy Warden and Chief of Security of the prison; and Tisdale. They sued the prison officials in their official and individual capacities, and alleged that the prison officials deprived them of their fourteenth amendment right to due process and of their eighth amendment right to be free from cruel and unusual punishment. They alleged that the prison officials violated these rights by their negligent, careless, reckless, and knowing:

1. failure to provide an adequate officer to inmate staffing ratio;

2. failure to equip and maintain a proper classification system at the prison;

3. failure to provide prison personnel who were trained in identifying and responding to security problems within the prison facility;

4. failure to make reasonable and periodic inspections of the area where the inmates were assaulted;

5. failure to segregate violent from nonviolent prisoners;

6. failure to control the population level at the prison;

7. failure to protect the inmates from a known pervasive risk of harm within the institution; and,

8. failure to enforce prison security rules.

They alleged that these acts or omissions individually, and taken together, were the proximate cause of their stabbing injuries and their resulting pain and suffering. They sought damages for these violations pursuant to 42 U.S.C. Sec. 1983. The two actions were consolidated in the district court.

After substantial discovery, the parties all filed summary judgment motions. Eventually, the prison officials were granted summary judgment on all claims against the inmates. All parties seek attorneys' fees pursuant to 42 U.S.C. Sec. 1988 for this appeal.

We review the entry of summary judgment de novo. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir.1986). The same standard that the trial court used under Fed.R.Civ.P. 56(c) governs our review. Id. We must view the evidence in the light most favorable to the nonmoving party to determine whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Ashton v. Cory, 780 F.2d 816, 818 (9th Cir.1986). The party opposing summary judgment may not rest on conclusory allegations, but must set forth specific facts showing that there is a genuine issue for trial. Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir.1986) (Berg ).


The district court concluded that the eleventh amendment barred the inmates' actions against the prison officials in their official capacities. The eleventh amendment creates a jurisdictional bar to private damages actions against states in federal court. See Quern v. Jordan, 440 U.S. 332, 338-40, 99 S.Ct. 1139, 1143-45, 59 L.Ed.2d 358 (1979) (Quern ). The state need not be a named party defendant for the eleventh amendment to apply. See Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 1355, 39 L.Ed.2d 662 (1974) (Edelman ). If the suit requests that the federal court order a state officer to pay funds from the state treasury for his wrongful acts, the eleventh amendment bars the suit because the state is the real party in interest. See id. Congress did not intend, in enacting section 1983, to abrogate the eleventh amendment's traditional jurisdictional bar. Quern, 440 U.S. at 341-45, 99 S.Ct. at 1145-47.

Relying on Brandon v. Holt, 469 U.S. 464, 105 S.Ct. 873, 83 L.Ed.2d 878 (1985) (Brandon ), the inmates argue that the district court erred when it concluded that the eleventh amendment barred their claims against the prison officials in their official capacities. Brandon, however, involved plaintiffs who were seeking to recover damages from a city for the acts of a city official. See id. at 467-68, 105 S.Ct. at 875-76. The Court premised the recovery of damages in part on its decision in Monell v. New York City Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), which held that municipalities were "persons" within the meaning of section 1983, and that the eleventh amendment did not bar federal courts from holding municipalities liable for damages arising from the conduct of their officials undertaken in their official capacities. 436 U.S. at 690 & n. 54, 98 S.Ct. at 2035 & n. 54. Monell, however, expressly limited its holding "to local government units which are not considered part of the State for Eleventh Amendment purposes." Id. at 690 n. 54, 98 S.Ct. at 2035 n. 54. Brandon is thus applicable to this case only if the Idaho Department of Corrections is not part of the state for purposes of the eleventh amendment. In this determination, the critical factor is the financial nexus between the agency and the state treasury. See Edelman, 415 U.S. at 663-65, 94 S.Ct. at 1355-57.

We need look no further than Idaho Code Sec. 20-201 (1979) to conclude that the Idaho Department of Corrections is part of the state and that any judgment against the Department or its employees acting in their official capacities would have to be paid out of the state treasury. Section 20-201(3) describes the department of corrections as "an executive department of the state government" under the Idaho Constitution. The Idaho Legislature provides the requisite funds for operating the executive department. Thus, Brandon does not help the inmates.

The inmates next contend that Idaho waived its sovereign immunity. Waiver of a state's eleventh amendment immunity can be found only when evidenced " 'by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction.' " Edelman, 415 U.S. at 673, 94 S.Ct. at 1361, quoting Murray v. Wilson Distilling Co., 213 U.S. 151, 171, 29 S.Ct. 458, 464, 53 L.Ed. 742 (1909). The waiver, moreover, must extend explicitly to suits in federal court. See Montana v. Peretti, 661 F.2d 756, 758 (9th Cir.1981) (per curiam).

The inmates argue that the Idaho Supreme Court recognized such an explicit waiver in Sterling v. Bloom, 111 Idaho 211, 723 P.2d 755 (1986) (Sterling ). In that case, an injured motorcyclist alleged in state court that the state was liable for negligently supervising the motorist who caused the plaintiff's injury. The individual who struck the plaintiff was on probation for driving while intoxicated. The Idaho Supreme Court analyzed the interplay of the limited waiver of sovereign immunity and the discretionary function exception contained in the Idaho Tort Claims Act, Idaho Code Sec. 6-901 (1979). Sterling, 111 Idaho at 226-33, 723 P.2d at 770-77. Interpreting the Act, the court concluded that Idaho had waived its sovereign immunity as to plaintiff's suit. Id. at 232, 723 P.2d at 776.

The Idaho Supreme Court in Sterling did not, however, address the eleventh amendment or Idaho Code Sec. 6-903(f), which expressly retains Idaho's eleventh amendment immunity. In addition, the opinion says nothing about suits against the state in federal court. Sterling therefore does not provide the requisite express language...

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