9th Circuit: Monell Claim May Be Inferred From Failure to Discipline

The court of appeals vacated a district court judgment and remanded the action for a new trial. The court held that the district court prejudicially erred in refusing to instruct the jury that, for purposes of proving aMonell claim, a custom or practice can be supported by evidence of repeated constitutional violations which went uninvestigated and for which the errant municipal officers went unpunished.

Robert Hunter and Howard Eley sued Sacramento County and others on causes of action arising out of the men’s alleged mistreatment while in custody at the Sacramento County Main Jail. The district court dismissed all of the claims except for a Monell claim against the County.

The Monell claim alleged by Hunter and Eley (Hunter) alleged that they were subjected to excessive force, in violation of their rights under 42 U.S.C. §1983, pursuant to the County’s longstanding practice or custom of subjecting inmates at the Main Jail to excessive force.

Before trial, the district court proffered a proposed Monell instruction that laid out the elements of a claim for the use of excessive force in violation of the Fourth Amendment. Both sides objected, and Hunter in pertinent part submitted proposed additional instructions addressing standards for liability under Monell. One of the instructions stated that a plaintiff could attempt to prove the existence of a custom or informal policy with evidence of repeated constitutional violations for which the errant municipal officials were not discharged or reprimanded.

The district court’s final set of jury instructions did not include any of the supplemental instructions proposed by Hunter. Following trial, the jury returned a verdict in favor of the County.

The court of appeals vacated the district court’s judgment, holding that the district court prejudicially erred in failing to use Hunter’s proposed instructions.

The court of appeals observed that in Monell, the Supreme Court held that municipalities may be held liable as “persons” under 42 U.S.C. §1983, but cautioned that a municipality may not be held liable for the unconstitutional acts of its employees solely on a respondeat superior theory. Instead, a plaintiff seeking to impose liability on a municipality under §1983 must identify a municipal “policy” or “custom” that caused the plaintiff’s injury.

At trial below, the district court’s jury instructions adopted the definition of “practice or custom” set out in Model Instruction 9.4, namely that “practice or custom” means any permanent, widespread, well-settled practice or custom that constitutes a standard operating procedure of the defendant.

That definition was consistent with Ninth Circuit case authority on Monell decisions, but it was not a complete statement of the circuit’s caselaw. For example, this circuit has long recognized that a custom or practice can be inferred from widespread practices or evidence of repeated constitutional violations for which the errant municipal officers were not discharged or reprimanded. Indeed, Hunter submitted a proposed instruction using such language.

Hunter had good reason to do so, as his theory, and his expert evidence, was that officials in the Main Jail repeatedly failed to investigate incidents of excessive force and to take disciplinary action against guards who used such force, despite the existence of an official policy prohibiting the use of excessive force. Thus his instructions were vital to his case. The legal principle that evidence of a recurring failure to investigate and discipline municipal officers for constitutional violations could help show the existence of an unconstitutional practice or custom simply was not inferable from the definition of “practice or custom” in Model Instruction 9.4.

This all meant that, in the context of this action, the definition of practice or custom in Model Instruction 9.4 was incomplete, and thus an incorrect, statement of the law. In addition, by stating that a practice or custom had to constitute a standard operating procedure of the defendant, the instruction could have encouraged the jury to disregard evidence that the County failed to investigate and punish the use of excessive force. Therefore, the court said, the district court’s decision not to use Hunter’s proposed instructions was in error.

The error was not harmless. Hunter intended to show a “practice or custom” that would support Monellliability even though the County had submitted evidence that the Main Jail had a formal written policy barring the use of excessive force. Hunter’s evidence would have established that there were repeated constitutional violations at the Main Jail for which the errant municipal officials were not discharged or reprimanded, which in turn would have supported an inference that an informal but widespread custom of using excessive force existed at the Main Jail.

That evidence could have swayed the jury to a different result, but without Hunter’s proposed instructions, the jurors would not have known whether to consider the evidence that numerous instances of excessive force weren’t investigated and that their perpetrators weren’t punished. Under Model Instruction 9.4, the jurors might have thought it improper to consider such evidence at all.

Hunter v. County of Sacramento

No Due Process Claim Based Upon Unsupervised School Rest Room Misconduct

In Patel v. Kent School District, the Ninth Circuit affirmed a judgment of the district court, holding that a mother did not have a constitutional due-process claim on behalf of her developmentally disabled daughter against a teacher for alleged failure to properly supervise her daughter, who had several sexual encounters with another student in a school restroom. 

A.H. was a developmentally disabled freshman student at Kentridge High School (KHS) in the Kent School District. Pursuant to her individualized education plan (IEP), A.H. was in special-education teacher Francine Wilhelm’s classroom. The IEP continued for the remainder of A.H.’s freshman year. In response to concern expressed by Madhuri Patel, A.H.’s mother, early in A.H.’s sophomore year, KHS held a meeting that Wilhelm attended. 

At that meeting, KHS officials were informed by Kent Youth and Family Services, a state corporation and healthcare provider, that A.H.’s safety might be compromised were she left unsupervised, including while at lunch and especially while in the restroom. After the meeting, KHS agreed in writing to resume A.H.’s IEP, which provided for A.H.’s constant supervision. 

But Wilhelm subsequently permitted A.H., aged sixteen, to use a restroom adjacent to Wilhelm’s classroom without supervision in order to foster her development. At least five times during such unsupervised trips to the restroom, A.H. had sex with a boy named Matt, who was another developmentally disabled student in Wilhelm’s class. 

Patel sued the school district and Wilhelm in state court on claims that included negligence and failure to protect. Patel also sued Wilhelm only on a federal claim under 42 U.S.C. §1983, alleging without elaboration that Wilhelm violated A.H.’s Fourteenth-Amendment rights. Based on that, the case was removed to district court, where Wilhelm moved for partial summary judgment of the §1983 claim. Wilhelm argued that Patel’s complaint did not explain how Wilhelm had violated A.H.’s rights. 

Patel responded that Wilhelm violated A.H.’s due process right to bodily integrity by failing to supervise her trips to the next-door restroom, thus causing her to be “repeatedly raped.” The district court granted Wilhelm’s motion and dismissed the §1983 claim, finding as a matter of law that Wilhelm had not deprived A.H. of any federally protected right. The district court declined to exercise supplemental jurisdiction over Patel’s remaining state-law claims and dismissed them without prejudice. Patel appealed. 

The court of appeals affirmed, holding that Patel did not have a constitutional due-process claim against Wilhelm on behalf of A.H.

The court found that partial summary judgment was correctly granted to Wilhelm. It was undisputed that Wilhelm was acting under the color of state law. The sole issue was whether Wilhelm deprived A.H. of any federally protected right. As a corollary to the general rule that a state is not liable for its omissions, the Due Process Clause of the Fourteenth Amendment typically does not impose a duty on a state to protect individuals from third parties. 

Exceptions to that rule apply when a special relationship exists between the plaintiff and the state and when the state affirmatively places the plaintiff in danger by acting with deliberate indifference to a known obvious danger. Patel could establish a due process violation only if one of those exceptions applied because her §1983 claim was based on the alleged omission of Wilhelm by failing to properly supervise A.H. Patel did not do so. 

The special-relationship exception does not apply when a state fails to protect a person who is not in custody. Patel argued that A.H. was in state custody while she was at school, given that the state statutorily mandated compulsory school attendance and that KHS had a duty to protect A.H. during school hours under the state in-loco-parentis doctrine, which requires schools to protect pupils from dangers that can reasonably be anticipated. However, the court found, compulsory school attendance and in-loco-parentis status do not create custody under the strict standard of DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189 (1989). 

The state-created-danger exception applies only where there is affirmative conduct by the state that places the plaintiff in danger and where the state acts with deliberate indifference to a known or obvious danger. Here, Patel failed to show that Wilhelm acted with deliberate indifference in neglecting to properly supervise A.H. 

Wilhelm did not act in a manner contrary to assisting someone in a known, immediate danger. This would be a different case if Wilhelm knew that A.H. was about to enter the restroom with Matt or otherwise be alone with him, yet then stood idly by. Rather, Wilhelm monitored the developing situation between the two students and once even rushed out of her classroom to prevent a possible incident between them. 

Further, Wilhelm did not know about any immediate risk, despite her promising to supervise A.H. at all times and then allegedly failing to do that. Wilhelm knew only that A.H. required extensive supervision and had been involved in past restroom incidents, the details of which she did not know. Wilhelm did not know there was any immediate danger in allowing A.H. to briefly use the next-door restroom alone. 

Case law makes clear that mere negligence or even gross negligence is not enough for deliberate indifference. Here, there was no evidence that Wilhelm intended to expose A.H. to a risk or otherwise knew that something was going to happen but ignored the risk. 

Rather, Wilhelm was fairly active in protecting A.H. She regularly communicated about A.H. with school officials, other teachers, and Patel. Wilhelm asked another teacher to help her monitor the possible developing relationship between A.H. and Matt. She spoke separately with both students about their hugging in the hall.

County Immune From Damages Claim Based On Breach of Confidentiality of Child Abuse Report

In All Angels Preschool v. County of Merced, the Court of Appeal affirmed a judgment, holding  that a confidentiality provision of the Child Abuse and Neglect Reporting Act was not intended by the Legislature to protect a preschool that allegedly lost income due to a breach of that provision by a county. 

Gerald Campbell and Antoinette Searle did business as All Angels Preschool/Daycare. Campbell reported an incident of apparent child neglect by the parent of one of the children who attended All Angels to child protective services of the County of Merced. Campbell made the report pursuant to the Child Abuse and Neglect Reporting Act in Penal Code §§11164-11174.3. 

The county and Xiong Pha, a county employee, apparently violated the mandatory duty of confidentiality in §11167(d)(1) by inadvertently disclosing to the child’s parent that Campbell had made the accusatory report. The disclosure resulted from Pha’s incorrect mailing of a county form-letter advising Campbell of the disposition of Campbell’s report. 

The addressee of the letter was Campbell at All Angels, but the street address on the letter was that of the child’s parent. Consequently, the parent removed her children from All Angels, which caused it to lose income. All Angels, Campbell, and Searle (collectively, All Angels) sued the county and Pha for damages allegedly caused by their breach of that statutory duty to keep the reporter’s identity confidential. 

The county and Pha demurred on grounds that included that the county was not liable under Gov’t Code §815.6 for breach of a mandatory duty and that Pha was immune from liability as its employee under §821.6. The trial court sustained the demurrer without leave to amend and dismissed the action. All Angels appealed.

 The court of appeal affirmed, holding that the Legislature did not intend for §11167(d)(1) to protect against the type of harm that All Angels suffered. 

The court noted that §815.6 requires that the mandatory statutory duty be designed to protect against the particular kind of injury that was suffered and found that §11167(d)(1) was not so designed as to All Angels’ alleged damages. Based on declarations of legislative intent, it could be inferred that the essential purpose of the confidentiality provision was to foster the “cooperation” of those who might be reluctant to report child abuse or neglect were their identities made known. 

However, there was no indication in the legislative history of §11167(d)(1) that its design or goal was also to prevent particular harm to those who reported child abuse or neglect. Nor was that specific issue resolved by reference to the legislative purpose of encouraging reporting. Rather, legislators reasonably could have concluded that such purpose was adequately served by a law requiring confidentiality or by subsequently making it a crime to violate the confidentiality provisions of the reporting act. 

In light of the specificity used in §11172 to describe the harm being protected against in that provision, it was reasonable to assume that if the Legislature was similarly concerned in §11167(d)(1) with protecting reporters of abuse from particular harm, that concern and the harm being prevented would have been mentioned in the legislative history materials, if not in the statutory language itself. 

The silence of the Legislature on that question suggested a more limited purpose. Although the risk of harm to those who reported abuse or neglect was undoubtedly minimized by such confidentiality, that appeared to be an incidental benefit of §11167(d)(1), not its essential purpose. Therefore, the county was not liable under §815.6. 

Additionally, the agreed with the trial court that Pha was immune from liability under §821.6 because Pha’s alleged wrongdoing occurred in the course of an official investigation of child abuse or neglect. That is, §821.6 expressly protects public employees in their prosecutorial duties from the threat of harassment through civil suits. Applying here the broad interpretation of §821.6 reflected in precedents, there was no doubt that Pha was immune.

The Court of Appeal Upholds Concord's RV Storage Measure

The City of Concord adopted an ordinance regulating the storage of recreational vehicles (RVs) on residential property.  James Disney and other residents voiced their views of the task-force recommendations at meetings of the planning commission and the city council before the ordinance was approved. Among the concerns the amending ordinance addressed were the definition of RVs, the number of RVs allowed on a residential property, setback restrictions for side and rear yards, storage in front yards and driveways, and matters related to RVs in public view, including fencing, maintenance, and safety sightlines for vehicles and pedestrians.

Disney sued the city both for a declaration that the ordinance was unconstitutional and to enjoin its enforcement.

The court of appeal held that the ordinance was constitutional.

The court found that the ordinance was adopted primarily out of concern for community aesthetics, although it also addressed safety issues. Under Metromedia, Inc. v. City of San Diego (1980) 26 Cal.3d 848, cities can use their police power to adopt ordinances for aesthetic reasons. Further, an opinion of the attorney general issued some years after Metromedia broadly concluded that a city may generally prohibit parking of particular categories of vehicles on private property.

Disney v. City of Concord

A Catch-22 For Would-Be Starbucks Class Plaintiffs

Erik Lords, Hon Yeung, and Donald Brown (collectively, Lords) applied for jobs with Starbucks Corporation. Lords had not been convicted of a crime related to marijuana. However, the preprinted job application that Lords was required to complete allegedly violated Lab. Code §§432.7(c) and 432.8 by failing to adequately advise him not to disclose minor marijuana convictions that were more than two years old.

Lords filed a class action against Starbucks on behalf of job applicants who were allegedly entitled to receive a minimum statutory penalty by having to complete Starbucks’ improper job application. The trial court certified a class that comprised all Starbucks job applicants, including those who did not have a marijuana conviction. On appeal, it was held that Lords did not have standing to represent the proposed class because he did not have a marijuana conviction. Subsequently, the trial court permitted Lords to amend his complaint to include only job applicants who had marijuana convictions.

The court of appeal, however, barred the discovery order, asserting that such an order violates the privacy rights of the convicted job applicants.  This had the effect of shutting down the class action.

Starbucks v. Superior Court (Lords)