LUM v. COUNTY OF SAN JOAQUIN

intiffs' Fifth Claim: Violation Of The Americans With Disabilities Act (ADA)

Plaintiffs' fifth claim is that the arrest and detention of decedent violated the Americans with Disabilities Act. City defendants argue, relying on Foley v. Klickitat County, No. CV-08-3068, 2009 WL 5216992 (E.D. Wa. Dec. 30, 2009), that plaintiffs' fifth claim fails as to both the arresting officers and the city because the ADA does not apply to arrests. The County is not moving to dismiss the ADA claim against it. Defendants also contend that even if the ADA applies to incarcerated individuals, the arresting officers, who are city employees, cannot be liable because they no longer had custody of decedent after booking him into the San Joaquin County Jail, and therefore the City also cannot be liable because there is no respondeat superior relationship between the County jail and the City. (Def's Mtn Dis. at 11: 15-19.)

Plaintiffs respond arguing that Foley is not binding on this court and further, that it is not persuasive because it is merely a cursory analysis of the ADA. (Pl's Oppo at 7: 13-16.) Plaintiffs base their contention on the reasoning contained within several district court decisions, as well as the Ninth Circuit opinion in Thompson v. Davis, 295 F.3d 890 (9th Cir. 2002) (holding that decisions to parole constitute an "activity of a public entity" that falls within the reach of the ADA.)

Plaintiffs also contend that even if the court does not find that an arrest is the type of "service, program or activity" contemplated by the ADA, this would not dispense with the entirety of plaintiffs' fifth claim because plaintiffs are also contesting the legality of decedent's arrest. Given the disposition above the court need not consider this argument.

For the reasons discussed below, the court agrees with plaintiffs' assessment of the ADA. However, the court finds that the ADA does not apply to individual officers; therefore, defendants motion is GRANTED as to the arresting officers and DENIED as to the City.

Title II of the ADA, 42 U.S.C. § 12132, prohibits a public entity from discriminating against a qualified individual with a disability on the basis of disability. Weinreich v. L.A. County Metro. Transp. Auth., 114 F.3d 976, 978 (9th Cir. 1997). To state a claim of disability discrimination under Title II, the plaintiff must allege four elements:

(1) [P]laintiff is an individual with a disability; (2) plaintiff is otherwise qualified to participate in or receive the benefit of some public entity's services, programs, or activities; (3) plaintiff was either excluded from participation in or denied the benefits of the public entity's services, programs, or activities, or was otherwise discriminated against by the public entity; and (4) such exclusion, denial of benefits, or discrimination was by reason of the plaintiff's disability. Weinreich, 114 F.3d at 978.

The Ninth Circuit has not addressed the question of whether the ADA applies to arrests. See Thompson, 295 F.3d at 897. However, that court has determined that local law enforcement agencies' activities fall within the statute. 42 U.S.C. § 12131(1); Lee v. City of L.A., 250 F.3d 668, 691 (9th Cir. 2001) (citing Gorman v. Bartch, 152 F.3d 907, 912-13 (8th Cir. 1998) (holding that transportation of an arrestee to a police station is a "service" under the ADA)).

There are two theories generally recognized by courts in applying the ADA in the context of arrests. See Gohier v. Enright, 186 F.3d 1216, 1221 (10th Cir. 1999). First, where police wrongly arrested someone with a disability because they misperceived the effects of that disability as criminal activity. Id. at 1220. Second, where although police have properly investigated and arrested a person with a disability for a crime unrelated to that disability, they failed to reasonably accommodate the person's disability in the course of investigation or arrest, causing the

person to suffer greater injury or indignity in that process than other arrestees. Id. at 1220-21 (citing Gorman, 152 F.3d at 912-13 (holding such claim viable); Rosen, 121 F.3d at 157-58 (suggesting in dicta such claim not viable); Patrice v. Murphy, 43 F.Supp.2d 1156 (W.D. Wash. 1999) (holding such claim not viable.))

Plaintiffs are alleging both theories, therefore, the court must address the applicability of both. For the reasons discussed below, the court finds that the weight of Ninth Circuit authority, as well as the persuasive authority on point, leads to the conclusion that both theories are viable under the ADA.

The first scenario, where an individual is wrongfully arrested, fits squarely within the ADA's prohibition against discrimination upon the basis of a disability. See Weinreich, 114 F.3d at 978 ("in order to maintain an ADA claim, plaintiff must allege that plaintiff was either excluded . . . or was otherwise discriminated against by the public entity.") (emphasis added).

In the event that decedents' arrest was found lawful, the second theory is equally viable, as the court finds that arrests are "activities" of a public entity. In Bay Area Addiction Research and Treatment, Inc. v. City of Antioch, the Ninth Circuit interpreted Title II's "programs" and "activities" to include "`all of the operations of' a qualifying local government." 179 F.3d 725, 731 (9th Cir. 1999). In reaching this conclusion, the court noted that Congress specifically rejected an approach that could have left room for exceptions to § 12132's prohibition on discrimination by public entities. Id. at 732. This broad interpretation of the ADA was confirmed by Lee v. City of L.A. when the court stressed that "[q]uite simply, the ADA's broad language brings within its scope `anything a public entity does,'" 250 F.3d at 691 (quoting Yeskey v. Pa. Dep't of Corr., 118 F.3d 168, 171 n. 5 (3d Cir. 1997), aff'd 524 U.S. 206 (1998)); see also McGary v. City of Portland 386 F.3d 1259, 1268 (9th Cir. 2004) ("the ADA must be construed broadly in order to effectively implement the ADA's fundamental purpose").

This broad interpretation of the ADA has led the Ninth Circuit to additionally warn against "carving out `spheres in which public entities may discriminate on the basis of an individual's disability.'" McGary, 386 F.3d at 1269 (quoting Thompson, 295 F.3d at 899.) In Thompson, the Ninth Circuit rejected an attempt to exempt parole decisions from the ADA under the reasoning that the ADA does not reach substantive decision-making in the context of the criminal law. The court cited with approval the Tenth Circuit's holding that the ADA applies to arrests. Id. at 897 (citing Gohier, 186 F.3d at 1221 ("[A] broad rule categorically excluding arrests from the scope of Title II . . . is not the law.")).

The court also noted that under the ADA regulations, law enforcement is obligated to modify "policies that result in discriminatory arrests or abuse of individuals with disabilities." Thompson, 295 F.3d at 897 (quoting 28 C.F.R. Pt. 35, App. A § 35.130 (2000)) (emphasis added). The court distinguished the Fourth Circuit's holding in Rosen v. Montgomery County Maryland, 121 F.3d 154 (4th Cir. 1997), because that decision was not based

upon a concern that the ADA would impermissibly interfere with the substantive decisions involved in arrests. Rather, reasoning that the statutory text of the ADA implied voluntariness on the part of the individual, it held that an arrest was not a "program or activity" of the defendant County. Id. at 157-58. This reasoning has now been discredited by the Supreme Court. Yeskey, 524 U.S. at 211 ("[T]he words [of § 12132] do not connote voluntariness.").

Considering the Ninth Circuit's broad interpretation of the ADA, it seems antithetical to established case law to "carve out" an exception for arrests. Arrests are both subject to the ADA's prohibition against discrimination on the basis of disability and the duty to provide reasonable accommodations during arrests. Accordingly, the motion to dismiss plaintiff's ADA claim is DENIED. Clearly, however, the ADA, by its terms does not apply to the officers.

C. Plaintiffs' Sixth Claim For Wrongful Death/Negligence and the California Torts Claim Act Immunities

Plaintiffs' sixth claim alleges that the defendants were negligent and are thus liable for decedent's death. Plaintiffs allege that "[t]he arresting officers ignored the laceration on Jeremy's foot, Jeremy's difficulties walking, the vomit on Jeremy's shirt, and Jeremy's strange behavior which a reasonable officer in Defendants' position should have attributed to something other than alcohol intoxication; they did not take any action to evaluate Jeremy's physical or mental state or inquire as to whether hospitalization, or an involuntary hold, pursuant to Cal. Welfare Institutions Code §§ 5150 or 5170, was necessary, instead of arresting and booking Jeremy in the San Joaquin County Jail on `kickout' charges." (FAC at ¶ 35.)

Plaintiffs further allege that the act of arresting decedent created a "special relationship" and a correlating duty "not to leave him in a situation that was more dangerous than the one in which they found him." (FAC at ¶¶ 96-97.) Plaintiffs state that "defendants breached this duty by failing to give decedent a medical or psychiatric evaluation and/or treatment and by deciding to release him alone six miles from his home without money, shoes, a cellular phone, means of transportation and without means or wherewithal to get home, shelter, or assistance." (FAC at ¶ 98.)

Plaintiffs allege that defendants arresting officers left decedent in a dangerous situation by placing him in jail on a "kickout" charge because "the Arresting Officers knew or should have known that the County had a policy of releasing `kickouts' after an arbitrary period of time." (FAC at ¶ 36.) Defendants argue that plaintiffs' negligence and wrongful death claims fail due to the "numerous and broad immunities" contained in the California Torts Claim Act.

Defendants also assert that plaintiffs' Seventh Claim for "False Arrest" is also precluded by the various immunities contained in the Torts Claim Act; however, under California law, a police officer is not granted statutory immunity for false arrest and imprisonment. See Asgari v. City of Los Angeles, 15 Cal.4th 744, 752 (1998). Government Code § 820.4, which grants immunity for a public employee's "act or omission, exercising due care, in the execution or enforcement of any law," provides that: "nothing in this section exonerates a public employee from liability for false arrest or false imprisonment."

"Conceptually, the question of the applicability of a statutory immunity does not even arise until it is determined that a defendant otherwise owes a duty of care to the plaintiff and thus would be liable in the absence of such immunity." Davidson v. City of Westminster, 32 Cal.3d 197, 201-02 (1982). Therefore the court must first address whether, under California law, the defendants owed a duty of care to decedent.

i. Defendants Owed Decedent A Duty Of Care

Plaintiffs argue that when the arresting officers took decedent into custody, a special relationship and corresponding duty to act reasonably to protect decedent was created.

The elements of a cause of action for negligence include a legal duty to use due care. Evan F. v. Hughson United Methodist Church, 8 Cal.App.4th 828, 834 (3d Dist. 1992). The existence of a duty of care is a question of law to be determined by the court alone. Ballard v. Uribe, 41 Cal.3d 564, 572, fn. 6 (1986). This is because "legal duties are . . . merely conclusory expressions that, in cases of a particular type, liability should be imposed for damage done." Tarasoff v. Regents of University of California, 17 Cal.3d 425, 434 (1976).

A person who has not created a peril is not liable in tort merely for failure to take affirmative action to protect another unless there is some relationship between them that gives rise to a duty to act. Williams, 34 Cal.3d at 23. In the absence of a clearly established special relationship, the court should apply the multi-factor public policy analysis first articulated in Rowland v. Christian, 69 Cal.2d 108, 113 (1968). For the reasons discussed below, the Court finds that there is a well-established special relationship between jailers and prisoners that is equally applicable to officers of the law who take arrestees into custody. See Giraldo v. Cal. Dep't of Corr., 168 Cal.App.4th 231 (3d Dist. 2008).

In Giraldo, the court addressed, as an issue of first impression, whether jailers have a duty to protect inmates from foreseeable harm by third parties. 168 Cal.App.4th at 250. In that case, plaintiff, a male-to-female transgender person, was an inmate in the California prison system. Id. at 237. Plaintiff filed an action against the California Department of Corrections and Rehabilitation (CDCR) and various CDCR personnel "challeng[ing] prison policies that place transgender inmates, such as [plaintiff], who have the physical appearance of women, in the male inmate population without any meaningful precaution to the obvious risk of sexual assault to them." Id.

In finding a duty, the court reasoned that "it has been observed that a typical setting for the recognition of a special relationship is where `the plaintiff is particularly vulnerable and dependent' upon the defendant who, correspondingly, has some control over the plaintiff's welfare." Giraldo, 168 Cal.App.4th at 245-46 (quoting Kockelman v. Segal, 61 Cal.App.4th 491, 499 (1998)). The Court cited expansive authority for finding that a "special relationship" existed between jailer and prisoner, including legal encyclopedias, the Restatement (Second) of Torts, and both state and federal case law. Id. at 246-50.

Ultimately, the Court based its decision on two factors, foreseeability and vulnerability/dependence. Id. at 250. The Court found that it was "manifestly foreseeable that an inmate may be at a risk of harm [as recently passed legislation] recognizing the serious problem presented by sexual abuse in the prison environment." Id. As here, it is reasonably foreseeable that an arrestee who is in need of medical attention would be at risk in a custodial environment or upon release into a situation made dangerous by his medical condition, or without first having received proper medical attention.

Both prisoners and arrestees are equally vulnerable and dependent on officers and jailers for safety and security. "Prisoners are vulnerable. And dependent. Moreover, the relationship between them is protective by nature, such that the jailer has control over the prisoner, who is deprived of the normal opportunity to protect himself." Id. at 250. In this case, the purpose of arresting decedent, who was "just off of his meds," on a "kickout" charge, was at least partially for decedant's own self protection, making the restraint used by the arresting officers just as "protective in nature" as the custodial relationship that exists between jailer and prisoner.

Abiding by the precedent set in Giraldo, the court finds that the jailer-prisoner relationship creates a duty of care as to the County. The court further finds the relationship to be analogous to law enforcement officers and arrestees. Officers and jailers have a duty to act with reasonable care toward those in their custody.

i. Government Code Section 845.8

Defendant contends that plaintiffs' sixth claim is barred by Government Code Section 845.8(a), which provides:

Neither a public entity nor a public employee is liable for: (a) Any injury resulting from determining whether to parole or release a prisoner or from determining the terms and conditions of his parole or release or from determining whether to revoke his parole or release.

Plaintiffs make several arguments in opposition to this contention. First, they argue that decedent was not a "prisoner" at the time of the injury (i.e. when he drowned in the river). Second, they assert that this situation is not within the scope of what the legislature intended Section 845.8 to prevent. Third, they assert that even if the court finds this section to be applicable, it can only apply to the County because at the time of the arrest, decedent was not a prisoner. Finally, they take issue with defendants' characterization of this immunity as "absolute."

The court finds that this immunity does not extend to the City or its officers, as the statute specifically deals with decisions to release prisoners, not decisions to arrest individuals or book arrestees into jail. The court also agrees with plaintiffs' proposition that this statutory immunity is not "absolute."

In Johnson v. State of California, (1968), the California Supreme Court discussed the scope of Section 845.8(a) immunity, in the context of a claim of immunity by the state for injuries arising out of the Youth Authority's decision to place a dangerous youth who was on parole in a foster home. 69 Cal.2d 782, 784-785 (1968). The youth had displayed homicidal tendencies, including violence and cruelty to both animals and people, none of which was revealed to the foster parents. Id. The youth subsequently assaulted one of the foster parents. Id. at 785.

The Court held that the state's decision whether to warn the foster parents of the youth's dangerous propensities was not within 845.8(a)'s immunity for an injury resulting from a determination to parole or release a prisoner because "[o]nce the proper authorities have made the basic policy decision — to place a youth with foster parents, for example, the role of section 845.8 immunity ends." Johnson, 69 Cal.2d at 786, 799. The Court reasoned that there is an important distinction between basic or discretionary decisions on the one hand and ministerial decisions implementing the basic decision on the other hand. Id. That is, actions implementing the basic policy decision are outside the scope of the immunity.

As plaintiffs contend, that distinction applies in the instant case. Plaintiffs allege that the injuries to decedent resulted from "ministerial acts" made after the initial decision to release decedent. Government Code Section 845.8(a) does not preclude plaintiffs from raising a plausible claim for wrongful death against the County, the City or the arresting officers under this theory; however, insofar as the negligence charged is the basic decision to release decedent, there can be no liability.

ii. Government Code Section 846

Defendant contends that plaintiffs' sixth claim is also barred by Government Code § 846, which provides in relevant part "{n}either a public entity not a public employee is liable for injury caused by . . . the failure to retain an arrested person in custody." Defendants assert that this language is "clear" and that neither the City nor the County nor its employees can be held liable for the fact that they did not retain decedent in custody. Again plaintiffs argue that section 846 does not apply in instances where officers have a "special relationship" with the arrested person. (Pl's Opp. at 17: 10-12.)

Plaintiffs argument is misplaced. The existence of a "special relationship" is not an exception to immunity under § 846. Cases that discuss the issue of "special relationship" in relation to government immunities do so in the context of whether there is a duty of care. The duty question is the threshold to a discussion of government immunity, see Davidson, 32 Cal.3d at 201-02, and the issues are distinct. The cases that deny plaintiff recovery do not do so because the courts have found governmental immunity but because the applicable officers lacked a duty of care in relation to the plaintiffs or victims. See Jackson v. Clements, 146 Cal.App.3d 983 (1st Dist. 1983); City of Sunnyvale v. Superior Court, 203 Cal.App.3d 839 (6th Dist. 1988); Lehto v. City of Oxnard, 171 Cal.App.3d 285 (2d Dist. 1985); Stout v. City of Porterville, 148 Cal.App.3d 937 (5th Dist. 1983). Further, the cases that find the immunity inapplicable, such as Morgan and Johnson do not do so on the basis of a "special relationship," but because the negligence alleged is not merely the release of a violent prisoner.

Courts have routinely applied Section 846 immunity where police officers release someone who then goes on to harm a third party. See, e.g., Santa Barbara v. Superior Court, 15 Cal. App.3d 751 (1971). The court has not found any cases, nor has the defendant cited any, in which § 846 immunity protected officers from liability for injuries to the released prisoner. The purpose of the statute is to prevent police from over-using their arrest power merely to avoid civil liability for harm that results from failure to arrest and detain. "[The power to make an arrest] is strictly limited and the abuse of such power can result in civil liability. It would be contrary to public policy, simultaneously to permit the imposition of civil liability for a failure to exercise the power. Hence the [§ 846] immunity is a logical adjunct to the public policy." Lehto v. City of Oxnard, 171 Cal.App.3d (2d District, 1985). The court concludes that the purpose of the statute is to provide immunity to the public entity or officer from liability for any wrongdoing by a released prisoner that harms a third party.See, e.g., Hernandez v. City of San Jose 14 Cal. App.4th 129, 134 (1993). ("Many recent cases which have considered what duty a police officers owes to members of the public have concluded the police have no duty to protect individuals from potential wrongdoers." (emphasis added.)) Therefore, the court concludes that § 846 immunity does not apply in the circumstances

presented.

More to the point, however, plaintiffs's wrongful death claim arises from conduct by the defendant other than the mere fact that they released him. Plaintiffs claims are based on false arrest and a subsequent duty to provide medical care to plaintiff, or in the least to assess his medical status, by virtue of the duty created by defendants' custodial relationship with decedent. These claims are not precluded by Government Code § 846, as the ". . . [l]egislature has not granted immunity from liability for every act or omission following after the exercise of discretion." Elton v. County of Orange, 3 Cal.App.3d 1053, 1057 (1970) (quoting Sava v. Fuller, 249 Cal.App.2d 281, 284 (1967)). Finally, of course, plaintiffs seek to impose liability for the circumstances under which the decedent was released, rather than the mere decision to release.

iii. Government Code Section 855.6

Defendant contends that plaintiffs' Sixth Claim is barred by Government Code Section 855.6, which provides in relevant part:

"Except for an examination or diagnosis for the purpose of treatment, neither a public entity nor a public employee acting within the scope of his employment is liable for injury caused by the failure to make a physical or mental examination, or to make an adequate physical or mental examination, of any person for the purpose of determining whether such person has a disease or physical or mental condition that would constitute a hazard to the health or safety of himself or others."

While the immunity granted under this section is broad, it has been held that it does not extend to a situation where the defendant fails to provide medical care for a prisoner in obvious need of such care. Lucas v. City of Long Beach, 60 Cal. App. 3d 341, 349 (1976) Plaintiffs argue that it is a question of fact whether the government entity had actual or constructive knowledge of such a need for medical care. California law supports this conclusion. See Zeilman v. County of Kern, 168 Cal.App.3d 1174, 1184 (1985).

iv. Government Code Section 855.8(a)

Defendants contend that plaintiffs' Sixth Claim is barred by Government Code Section 855.6, which provides in relevant part:

"(a) Neither a public entity nor a public employee acting within the scope of his employment is liable for injury resulting from diagnosing or failing to diagnose that a person is afflicted with mental illness or addiction or from failing to prescribe for mental illness or addiction."

Plaintiffs do not argue that § 855.8(a) does not apply, but contend that "even assuming that this court accepts defendants' argument on this point, it does not dispense with the entirety of plaintiff's sixth claim for relief." The court agrees. Section 855.8(a) granting immunity relates to mental illness. Mental illness includes "any condition for which a person may be detained, cared for, or treated in a mental institution." Gov. Code, § 854.4.

This statutory immunity covers specific acts and omissions by public employees for failure to diagnose and failure to prescribe. (See Van Alstyne, Cal. Government Tort Liability Practice (1980) § 4.48, p. 399.) Clearly, Government Code section 855.8, subdivision (a), would protect public entities from errors in

judgment as to whether a patient was mentally ill and therefore should be confined, or whether the patient is not mentally ill and should not be confined. Here, however, the question deals with the failure to refer decedent for evaluation rather than a failure as a result of diagnosis or treatment.

Insofar as defendants are immune from "failing to diagnose" decedent, they still had a duty to act reasonably to protect him while he was in their custody. Plaintiffs have alleged facts that would suggest an alternate theory of liability. When decedent was arrested, he had a laceration on his foot, was covered in vomit, and had trouble walking. While in his holding cell, he allegedly had a seizure. (FAC at ¶¶ 35, 38-39.) Therefore, to the extent that plaintiffs are alleging that defendants failed to render medical attention to decedent and that decedent was in obvious need of medical care, their claim is not dismissed. Moreover, of course releasing the defendant under the conditions noted, raises further nonimmune questions of liability.

D. Plaintiffs' Standing as Successor in Interest

At the time that they filed their complaint, plaintiffs had not yet filed the affidavit required by California Code of Civil Procedure § 377.32 to establish standing as decedent's successor in interest. On November 5, 2010, plaintiffs Jerry Lum and Dorthea Timmons filed a declaration with the court that complies with § 377.32, along with a copy of the decedent's death certificate. ECF No. 23. Defendant's motion to dismiss for lack of standing is therefore DENIED.

IV. CONCLUSION

For the reasons discussed above, Defendant's Motion to Dismiss, ECF No. 20, is DENIED in part and GRANTED in part. The court ORDERS as follows:

[1] Defendants' Motion to Dismiss plaintiffs' first claim for relief is DENIED.

[2] Defendants' Motion to Dismiss plaintiffs' fifth claim for relief is DENIED as to the City, and GRANTED as to the individual arresting officers.

[3] Defendants' Motion to Dismiss plaintiff's sixth claim for relief is GRANTED insofar as plaintiff rely on defendants' failure to diagnose decedent's mental condition. The motion to dismiss is DENIED insofar as plaintiffs allege that decedent was in obvious need of medical attention, and defendants failed to render medical attention to him.

[4] Plaintiffs are GRANTED leave to amend their complaint.

[5] Defendant's motion to dismiss the first through fifth and seventh claim for relief for lack of standing is DENIED.

IT IS SO ORDERED.

DATED: November 17, 2010.