Martinez v. State of California

• Decision Date: 22 September 1978
• Citation: 85 Cal.App.3d 430,149 Cal.Rptr. 519
• Parties: George MARTINEZ et al., Plaintiffs and Appellants, v. The STATE of California et al., Defendants and Respondents. Civ. 16386.
• Court: California Court of Appeals Court of Appeals

Page 519

149 Cal.Rptr. 519

85 Cal.App.3d 430

George MARTINEZ et al., Plaintiffs and Appellants, v. The STATE of California et al., Defendants and Respondents.

Civ. 16386.

Court of Appeal, Fourth District, Division 1, California.

Sept. 22, 1978.

As Modified Oct. 12, 1978.

Thompson, Sullivan, McGrath & McDonald, by Donald McGrath, II, Walter P. Christensen, San Diego, for plaintiffs and appellants.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen. and Jeffrey T. Miller, Deputy Atty. Gen., for defendants and respondents.

GERALD BROWN, Presiding Justice.

George Martinez appeals the judgment following an order sustaining State's demurrer without leave to amend.

Richard June-Jordan Thomas was convicted on December 12, 1969 of attempted forcible rape. He was sent to Atascadero State Hospital for six months where he was designated a "Mentally Disordered Sex Offender" (MDSO), not amenable to treatment. He was sentenced to prison for from six months to 20 years in April 1970 and was paroled five years later on condition he appear regularly at a "parole out-patient clinic." Five months after his release Thomas kidnapped and murdered Mary Ellen Martinez, a 15 year old.

George Martinez filed suit for his daughter's wrongful death and for civil rights violations in six causes of action alleging defendants were negligent in releasing Thomas, failed to supervise Thomas properly while he was on parole, violated the Federal Civil Rights Act ¹ and failed to warn females Thomas was loose. He sought compensatory and punitive damages. We consider each cause of action in turn.

The first cause of action alleged the defendants were employed by the California Department of Corrections and the Adult Authority, had a duty to be reasonably careful in paroling prisoners and had breached that duty because no prudent, reasonable person knowing Thomas' history would have released him. Martinez says governmental immunity provided by Government Code section 845.8(a) ² does not apply because the employees here were acting outside the course and scope of their employment. However, even if these employees abused their discretion by granting parole knowing Thomas had tortured two girls in attempting to rape them, was an untreatable MDSO with a recommendation of no parole, had received no psychiatric treatment during his incarceration and had no psychiatric evaluation after his request this does not make them liable. The statute by its own terms releases an employee from any liability stemming from the exercise of his discretion in determining whether a prisoner should be released (see Gov.Code § 820.2; see State of California v. Superior Court, 37 Cal.App.3d 1023, 1026, 112 Cal.Rptr. 706).

As for the charge these employees were not acting within the scope of their employment, there are no allegations they were doing anything other than what they were hired to do, that is, determine when prisoners are to be paroled (Burgdorf v. Funder, 246 Cal.App.2d 443, 448, 54 Cal.Rptr. 805).

In his second cause of action Martinez says the State's employees were negligent in "performing ministerial acts of release." He claims Government Code section 845.8(b) grants employees absolute immunity for discretionary and ministerial acts when dealing with escapees, while section 845.8(a) covers only those injuries flowing from "determinations" about parole (see fn. 2; County of Sacramento v. Superior Court, 8 Cal.3d 479, 105 Cal.Rptr. 374, 503 P.2d 1382). In short, he says section 845.8(a) confers discretionary immunity but not absolute immunity. In making a decision to release a prisoner the actual decision, including the ministerial act of applying established rules and regulations to the particular case in question, is covered by governmental immunity (State of California v. Superior Court, supra, 37 Cal.App.3d 1023 1027-1028, 112 Cal.Rptr. 706). Not covered are ministerial acts in carrying out the decision to release the person, and an allegation of negligence must be determined on a case-by-case basis (Johnson v. State of California, 69 Cal.2d 782, 797, 73 Cal.Rptr. 240, 447 P.2d 352; see Morgan v. County of Yuba, 230 Cal.App.2d 938, 942, 41 Cal.Rptr. 508). In this count Martinez does not allege negligence occurring after the decision to release Thomas. The complaint, by reference, incorporates allegations from the first count that: the employees knew Thomas had tortured the girls during the attempted rapes; he had been declared an untreatable MDSO; it had been recommended he not be paroled; he had received no psychiatric treatment; and, had no psychiatric evaluation within 30 days of his request. All of these acts or omissions are part of the discretionary act of releasing a prisoner and come within the government's immunity.

In his third cause of action Martinez says the State was negligent in failing to warn females using Tecolote Canyon of the danger now that Thomas was released. At oral argument he agreed this count should be dismissed because there was no continuing relationship between the State and the victim (Whitcombe v. County of Yolo, 73 Cal.App.3d 698, 713, 141 Cal.Rptr. 189).

In his fourth cause of action Martinez claims the State wantonly, wilfully and maliciously failed to supervise Thomas. The decision on what conditions to impose upon a parolee including, for example, the imposition of a certain amount of supervision is part of the determination in section 845.8(a) which is immune from liability. However, supervision of a parolee consists of the "ministerial implementation of correctional programs, (which) can hardly . . . be isolated from discretionary judgments made in adopting such programs." (See County of Sacramento v. Superior Court,supra, 8 Cal.3d 479, 485, 105 Cal.Rptr. 374, 378, 503 P.2d 1382, 1386). Thus, for correctional activities, both discretionary decisions and their ministerial implementation come under the blanket of immunity (Whitcombe v. County of Yolo, supra, 73 Cal.App.3d 698, 714, 141 Cal.Rptr. 189) and Martinez has not stated a cause of action.

Martinez's fifth cause of action alleges violation of the Federal Civil Rights Act (see fn. 1), saying the acts of the individual respondents under Penal Code sections 5075 and 5077 ³ caused and deprived Mary Ellen of her life and liberty. He points out that governmental immunity is not an absolute bar to such a suit (Kletschka v. Driver, 2 Cir., 411 F.2d 436, 448). However, official acts are privileged if they were done within the scope of their official duties (Ahlstrand v. Lethert, D.C., 319 F.Supp. 283, 284). As members of the Adult Authority, they are performing quasi-judicial functions when they make determinations regarding parole and are immune from suit under the Civil Rights Act (Fitzgerald v. Procunier, D.C., 393 F.Supp. 335, 343).

Martinez claims Mary Ellen's death resulted from actions and omissions above and beyond the actual processing of applications for parole, such as the failure to warn, and the failure to supervise Thomas. In addition, he argues that public policy considerations support the application of a restricted immunity with regard to civil rights actions...