Martinez v. State of California

• Court: California Court of Appeals
• Writing for the Court: GERALD BROWN
• 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.
• Decision Date: 22 September 1978

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.

[85 Cal.App.3d 433]

Page 521

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.

Page 522

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" [85 Cal.App.3d 434] (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).

[85 Cal.App.3d 435] 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,

Page 523

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...