L.W. v. Dee Grubbs Thomas Nelson Marlin Hutton Richard Hill

I, In Bonin petitioner the counsel for Deputy

federal court awas State Public De-

fender. The issue addressed in Bonin I was

the Public Defender’s motion to be relieved

as counsel the possibility that it

had been during representation ineffective

of Bonin in the federal habeas Thus,

ceedings. Id. at 427. directly Bonin I lawyer

involved a appointed by State,

and it cannot distinguished on the basis

urged by amicus.

CONCLUSION

We find no error the district court’s

denial of petition for Poland’s writ of habeas

corpus. The judgment is AFFIRMED.

L.W.,* Plaintiff-Appellee, GRUBBS;

Dee Nelson; Thomas Marlin Hutton; Hill, Richard Defendants-

Appellants. 95-35624,

Nos. 95-35968.

United States Appeals, Court of

Ninth Circuit. April

Submitted 1996.** Aug.

Decided 1996. * ** originally case was filed under full panel name unanimously finds this case suitable plaintiff, of the disposition but because the called for submission on the record and briefs and publication, the court has decided on its own argument. without oral 34(a); R.App. Fed. P. motion delete plaintiff. the full name of the Ninth Circuit 34-4. Rule HISTORY

PROCEDURAL case, we reversed this appeal of prior aIn 12(b)(6) of the dismissal the Fed.R.Civ.P. complaint “al the holding that complaint, demonstrating official deliberate facts leged L.W. v. danger.” creating the in Cir.1992) Grubbs, (L.W.I), didWe 124 L.Ed.2d beyond state “mental what discuss then process required for due negligence’ ‘mere alleged facts the because claims” party third true, delib demonstrated complaint, indifference, part of the the on erate I, 974 danger. officials, L.W. creating the in F.2d at 122-23. granted sum- remand, district court the On original of all the judgment favor

mary Grubbs, there defendants, except for responsible that others were evidence was no plaintiff. the creating the supervisor, Grubbs, immediate plaintiffs trial. went to verdict special of a the use explaining jury the instructed form, court district the violated found to could that Grubbs if he af- rights federally protected General, Attorney Kistler, Assistant Rives resulted firmatively created defendants-appellants. Salem, Oregon, for danger, if, creating the injury and in her recklessness negligence, he acted Fjelstad, Smith, & Smith Kerry M.L. jury When indifference. deliberate or plaintiff-appellee. Gresham, Oregon, for form, found verdict the verdict returned negligence acted had that Grubbs indif- or deliberate with recklessness but not ference. clear provided had hot court this Because degree of on courts trial

guidance Section necessary support culpability GOODWIN, and THOMPSON Before: employee supervisory FERNANDEZ, Judges. Circuit a subordinate inactions left actions whose an insti- danger in position employee GOODWIN; inmates, Partial Judge by predatory Opinion populated tution verdict, by Judge and Dissent Partial judgment entered Concurrence court appeal followed. FERNANDEZ.

GOODWIN, Judge: Circuit FACTS nurse, is Grubbs, registered in- Defendant assaulted employee A female at MacLaren clinic the medical charge of insti- a state inmate predatory by a jured housing juve- an institution Boys, $325,000 in School her jury awarded tution of custodial various levels under nile males appeals He supervisor. her damages against supervision. reverse. judgment. We official, August On part responsible was work- ence on the of the swing ing safety employees presence shift in the clinic. Prior her work, conduct, nurse, danger, known arrival at another Elita Sifuen- created official tez, help sufficient to establish asked for “student” to her around violation Blehm, injury under part an inmate to Section 1983 for caused in the clinic. David known See, I, offender, by danger. a e.g., a and state created be sex volunteered Sifuentez L.W. 122-23; Ostrander, Maupin, 974 F.2d at v. participation with Wood 879 cleared his Sherm (9th Cir.1989),1 person F.2d 588 responsible assigning the for students jobs 498 U.S. 112 to do various around the school. Mau- not, however, We have pin approved expressed to work at the clinic Blehm clarity by legal the p.m., principles until 4:00 time when the male which the the staff government’s supervisory leaving Maupin employees would be the clinic. knew become damages parties that Blehm was a and liable caused third to sex offender told the types money not him the various of victims who seek defendant that he did want to be damages § working under 1983 for violations one-on-one with women. of then- rights process” to “substantive of law. plaintiff began her that day The shift afternoon, p.m. 3:00 Later that the Putting momentarily kitchen linguistic aside the called to inform clinic that the mixing the kitchen difficulties in substantive law and “cart-boy” bring not did have to the to eve- cedural law invent new constitutional ning meal to the the rights, clinic. Grubbs told we have accepted more less the plaintiff that she could use Blehm as a “cart- notion that torts can in be constitutionalized boy.” food left provide Blehm delivered the to order remedies for victims who bring without incident. Grubbs then left the clinic their claims within some frame- p.m. at about theory 4:30 work or justify remedy, that will the although yet we have to decide whether some left, plaintiff After Grubbs had called culpable conduct less than deliberate indiffer- Blehm back to fix the clinic so that he could ence would suffice. pizza. plaintiff, her The now alone clinic, prepared piz- worked while Blehm complicate bench, To matters for trial Then, za. while Blehm was alone with the loosely spoken we have rather negli- plaintiff, attempted he attacked her and to gence § in ground some 1983 cases as a rape stopped her. The assault when Blehm imposing liability. have, These dicta under- phone ring. heard the standably, confused the trial bench and have high hopes

infused of civil fees, rights recovery, plus attorney against DISCUSSION supervisors their in actions municipal parties While the briefed number and state functionaries do issues, only one critical determination must governmental not share immunity unit’s be made at this time court: respondeat superior from or vicarious liabili- standard culpability upon which ty employer. of the official can be held liable under Section 1983 prison employee to a for harm upon inflicted II. Prior Ninth Distinguished Circuit Cases employee by prisoner. put To it anoth- way, circuit, In our something opinion er in this amended less than Wood v. Os- trander we enough deliberate stated that the “law respect [with submit such a jury? culpability] case to standard answer is “no.” this circuit Wood,

is unclear.” 879 F.2d at 587. That statement, Proper actually understatement, I. The of Culpability Standard still true. This Court has been consistent point:

at least one We have deviated acknowledged We that both our earlier principle from case, opinion Ostrander, deliberate indiffer- in that Wood v. ” opinion 1. This amended the earlier decision The citations to "Wood refer amended Ostrander, (9th Cir.1988). v.Wood opinion. 851 F.2d 1212 (9th points Cir.1988), next to our decision Fargo 1212, 1214-15 F.2d Feinstein, Neely Cir. Bautista, v. City Juan v. San 1995) hospital stated .that officials where we (9th Cir.1988), that either had stated “they are liable under section 1983 exhibit conduct would or reckless amounting conscious indifference a due viola sufficient establish (internal negligence.” Neely, 50 F.3d at 1508 Wood, But then we at 587. tion. omitted). quotations and citation That deci those statements stepped back from reasoning in predicated sion was on our City v. Har Supreme Canton Court’s opinion that we later first Wood Ostrander ris, 378, 109 1197, 103L.Ed.2d upon Fargo. Neely, amended3 and (1989),2 question into our state “calls Furthermore, Neely at 1508. opinion in prior in our Fargo ments custody was in state at a mental institution gross negligence showing of this case that a “special a rela and therefore the state had requisite level of to establish the will suffice plaintiff. Neely can tionship” with the While action an indi in a section 1983 fault distinguished present facts from the its trooper].” state [a actor such as vidual state (which case, necessary language was not Wood, at 588. decision) is incorrect to the to the either gross negligence approves that it the extent Nonetheless, the Wood decision did standard, or it must be limited claims culpability minimum standard of the address injured because of a mis of inmate ap- the question presented because the “professional judgment of a carriage of the summary judgment, was wheth- a peal, from [government] hospital official” in the context that jury a could conclude that record er on captive plaintiff. of a in- had acted with deliberate the defendant Wood, plaintiff at 588. Unfor- Fuller v. Finally, the identifies difference. (9th Cir.1995) Oakland, 47 1522 oppor- City take that F.3d tunately, we did not because it, appear in which we to have rest, as another case like tunity gross negligence to put to gross negligence standard for adopted plain and found its has metastasized neoplasm, (sexual injuries federalizing workplace way cases. into other by supervi- harassment and discrimination plaintiff argues that the example, the For sor). plaintiff claims too much for But the Fargo has not negligence rule stated gross negli- does discuss the Fuller. Fuller County changed because Redman standard, only in the context of a gence Cir.1991)(en Diego, 942 San seeking 1983 police officer Section female 1074, banc), 112 by a male damages for abusive treatment (1992), this Court stat 117 L.Ed.2d 137 Fuller, 47 F.3d at 1534. officer. fellow or recklessness gross negligence ed that summary judgment for reversed a There we outside process a due violation gives rise to questions fact city material the Redman, jail prison context. 942 said in obiter required a trial. What we (citing Fargo). That state at 1440 n. 6 F.2d wholly gross negligence was unneces- about however, ment, Redman was dictum because would, allegations sary. factual duty only the state owes with the trial, dealt deliberate indiffer- proved at establish injured, are not to pretrial allowing detainees defendant middle- ence plaintiff. with their prison employees unsatisfied management officer to abuse gross negli- Both the compensation Admittedly, forgetfully, remedies. workers’ quoted here, from gence language banc court Red- Fuller en Madera, man, County caution which Hammond v. the Wood overlooked (9th Cir.1988), a case decided before Fargo. limited Neely panel well aware have been adopted 3. The should the deliberate in- Supreme Court 2. The step opinion 1983 actions and our back from for section the amended difference standard against municipality upon proper a claim that gross negligence based stan- espousing as the training police Somehow, however, offi- municipality’s lack of they omitted dard. causing policy of constitu- was a a violation cers their decision. from person subject police action. right tional of a movie, away gross negli- grounds attending plaintiff’s from a “bare” we backed effectively criminally gence standard Wood. Wood wife found herself alone superseded patient. patient Hammond to the extent it es- insane attacked and negligence poused standard for Sec- killed her. The then sued the state liability. creating danger tion It is little wonder that which set off the difficulty in leading our courts have found chain of events to his wife’s death. district navigating damage claims the Section Judge required Ebel listed the elements waters. by the to state a Tenth Circuit Section 1983 damages resulting claim for from a state III. Other Circuits workplace: created A review of case law from our sister cir- Merging concepts applying the above cuits reveals that is not case, them the facts of the instant Plain- sufficient to establish a due violation (1) [Uhlrig] tiff must demonstrate that employ- based on a state created Uhlrig was a member of a limited and ees. decided after Collins v. Harker Cases (2) specifically group; definable Defen- Heights, 503 U.S. put Uhlrig dants’ conduct and the other (1992) particularly are instruc- group members of that at substantial risk case, Supreme recog- tive. In Court .that serious, harm; proximate immediate and nized and dealt the anamalous results of (3) (4) known; the risk was obvious or carving component” out “substantive from recklessly Defendants acted in conscious the Due Process Clause of the Fourteenth (5) risk; disregard of that such con- 125, Amendment. Id. at 112 S.Ct. at 1068- duct, total, when viewed is conscience 69. shocking. Uhlrig, 64 F.3d at 574. A. Circuit, In the Tenth recklessness with a factually own, The most similar to our case disregard conscious of a known or obvious Harder, (10th 567, Uhlrig v. 64 F.3d 573 risk “includes an element of deliberateness” — Cir.1995), denied, —, cert. 116 U.S. component”. and “contains an intent See 924, (1996). L.Ed.2d Uhlrig 133 853 (citations Uhlrig, 64 F.3d at n. 573 8 omit- presents applica an accurate statement and ted). addition, In recog- the Tenth Circuit culpability tion of the standard for a due nizes that “deliberate indifference” is the § Although violation under 1983. same kind of conduct it labels “recklessness couples troubling, subjective the casé disregard.” with a conscious Uhlrig, See 64 “shocks the conscience” test to the deliberate words, gross F.3d at 574 nn. 9-10. In other inquiry, helps indifference it nonetheless Circuit, negligence, in the Tenth would not theory liability round out a trial alone be sufficient to establish Section 1983

judges juries apply narrowly de liability. fined, created, known, and disre garded, workplace. hazards of the B. Uhlrig, wife at worked

Topeka Hospital activity [Mental] State as an Other circuits offer similar statements of therapist general hospital degree culpability members support that will population. See, During most of recovery. e.g., the wife’s em- Section 1983 v. Lewellen Nashville, (6th ployment, hospital specially maintained 34 Cir.1994)(gross criminally unit negligence secured for the insane. How- light is not sufficient in of Collins ever, constraints, budgetary 115, due to the state v. Heights, Harker 503 112 U.S. 1061, special (1992)), decided to eliminate the unit. As a 117 L.Ed.2d 261 cert. de result, criminally nied, patient, previ- —, 903, insane U.S. 115 S.Ct. 130 ously sexually patient, (1995); had assaulted a female v. Johnson Dallas Inde placed general population pendent District, 198, was where School 201 (5th Cir.1994)(deliberate working. day, the wife was One after re- indifference would turning patients required case), some who had been off be in state created

899 — now hold to be insuffi- denied, —, gence, a standard we 115 S.Ct. U.S. cert. Baer, supervisor (1995); employee sues 28 cient when Sellers 131 L.Ed.2d neglti workplace injury. § for a It is Cir.1994)(gross 1983 action 902-03 F.3d conduct, when created now clear that such tortious enough in state gence not — U.S. —, denied, case), may 115 S.Ct. in some state law proved, well result cert. itself, (1995); gross negligence, Mark v. Bor in and of remedy, 130 L.Ed.2d (3d Hatboro, 1137, 1152-55 is not unconstitutional. ough Cir.1995)(in danger case even a state-created violation, Section if was a constitutional there A. the defen unless will attach requires The standard the Tenth Circuit indifference), dants acted with deliberate recklessly — in con- “act[ ] the defendant U.S. —, disregard” risk of of a “substantial scious L.Ed.2d serious, harm.” proximate immediate and Uhlrig, 64 F.3d at 574. Such conduct See Negligence Instruction IV. The Gross recognizes occurs when “defendant pending Case actually risk and intends to unreasonable alternatively argues that risks without expose the to such proper negligence is not the even consequences plaintiff.” regard to the standard, given jury instruction the actual Uhlrig, Uhlrig n. 8. The the same as the deliberate closely standard more follows district circuits. The employed in other standard of deliberate indifference court’s definition case negligence instruction than its definition of or even reads: recklessness. gross negligence when person A acts with unreasonably intentionally instruction in person acts Under the district court’s case, grossly negligent or unrea- regard to a known risk acts a defendant with this is a sonably regard unreasonably regard, to a risk so obvious to known he acts with person significant be assumed to is a difference be- that the must risk. There magnitude unreasonably regard a acting And the of to aware of it. been tween highly probable exposing to thereby it is and the risk is such that known risk .someone risk, intentionally exposing someone will and that harm follow. that jury In case the found to a known risk. instruction reads: The recklessness unreasonably only acted that the defendant recklessly acts or person A acts when his gross guilty negligence, and was therefore of disregard are done conscious omissions jury explicitly found that deliber- but the consequences. probable of the known had not been met. standard ate indifference instruction reads: deliberate indifference The person with deliberate indifference A acts B. a risk of disregards substantial when he he aware. harm of which is serious Springfield, City In Manarite v. of (1st Cir.), 506 U.S. at definition of reckless- F.2d 953 A closer look (1992), jail disregard/deliberate L.Ed.2d with a conscious ness case, stated4 Circuit circuits re- suicide the First employed other house indifference requires: those that deliberate veals that there is difference between negli- and the of definitions definition that the defen- complainant prove [to] gence used in this case. of mind and culpable had a dants wantonly pain.... inflict to case, intended given three bases jury In our was aptly de- defendant, this mental state liability upon the and While imposing “recklessness,” it is reckless- as scribed of the bases. it him of two exonerated but in the in the sense negli- ness not tort-law “guilty” only of jury found him District, Independent School v. Dallas "deliberate in- 4. The First Circuit's definition Leffall (5th Cir.1994). espoused by the Fifth Circuit difference” was sense, known, imply to appreciably stricter criminal-law re- to a or so obvious as knowl- of, edge danger, by supervisor partici- knowledge wilful quiring [or [sic] actual pated creating danger, enough. is harm, impending easily pre- blindness] enough. Less not ventable. (citations omitted).

Manante, 957 F.2d at 956 REVERSED. continued, stating that The court FERNANDEZ, Judge, concurring Circuit death, when for serious harm or dissenting: and suicide, issue, including is at majority Although opinion I concur must demonstrate “deliberate indifference” separately I part, for the most write to clari- (1) by showing unusually serious risk of concurrence, my fy scope of and dis- (self-inflicted harm, harm in a suicide part. sent (2) case), knowledge actual defendant’s to) any explication I believe that of the law in (or, least, at that willful blindness ele- City (3) this area must start with Collins v. risk, vated defendant’s failure to 115, 112 Heights, Marker known, steps take obvious address Collins, 117 L.Ed.2d 261 the Su serious risk. preme dealing with Court was a situation Manarite, 957 at 956. placed supervisor where a em This deliberate indifference standard is ployee position in a which resulted very gross negligence also different from the employee’s complaint death. The did given instruction in this case it re- allege not that there was intent to delib quires that the defendant have actual knowl- erately employee harm the and did not even of, edge willfully ignore, impending harm. knew, say supervisor that the or should have instruction here does known, significant that there was a risk of incorporate impending this notion of 125-26, 112 injury. Id. at 1069. The harm, i.e. the defendant knows that some- plaintiff argued that “the Constitu Federal thing going happen ignores the risk imposes duty city tion provide on the exposes it. someone to As with the employees safety with minimal levels Circuit, standard from the Tenth we find that security workplace, city’s or that the the standard'from the First Circuit follows safety ‘deliberate indifference’ to Collins’ closely more the district court’s definition of arbitrary government action that must ‘shock deliberate indifference. judges.” the conscience’ of federal Id. at 126, 112 S.Ct. at 1069. The did Court not CONCLUSION reject possibility that those theories separate liability. could serve as bases of We conclude that in It order to establish by dealt with pointing the first one out that liability Section 1983 in an action free-floating right any partic there was no injury prison employ- state official for an to a that, safety ular level of opine and went on to inmate, ee caused must general, some rather deliberate sort of participated show that the state official required action was before constitutional condition, dangerous creating and acted wrong could n. be found. Id. at 127 with deliberate indifference to the known or n. 10. subjecting obvious Only hand, it. deliberately the state official was In the ease at rejecting we are analysis proceed indifferent does the then standard short of deliberate indifference public employee when a claims a further to decide whether substantive conduct process right to be free from harm. amounts to a constitutional violation. We compatible That theory with the first requirement have not added a that the con- Collins, I, therefore, agree. But that science of the federal judiciary be shocked always will not be the end of the matter indifference, deliberate because the use of there; stop not Collins did it went subjective epithets “gross” such as “reckless” theory. on to discuss the second “shocking” light sheds more heat than thought processes read, courts must undertake Depending on how Collins is in cases of this kind. required Deliberate indifference Court either that cial must also shock the conscience before also shock the con- action employee’s must (or, arbitrary those are actionable. in the con- acts perhaps, be science sense), recognized it that the stitutional I circuits am not at all confident that those entirely sep- is an the conscience test shocks exactly My particu- fight. are confidence is finding a substantive due arate basis larly shaken when I consider that Collins violation. As the Court said: cess ordinary pres- none of the tort indicia were city’s persuaded that the also are not We Indeed, pointed it ent. the Court out that employees, or to alleged failure to train supervisor alleged was not that the knew of a harm, risks of them about known warn significant risk or even that he should have properly charac- that can be an omission Still, gave known of one. serious Court arbitrary, as or conscience shock- terized to the shocks the conscience consideration ing, in a constitutional sense.... Because Thus, may test. it well be that the Court purport not Due Process Clause “does way separate sees that test as a to create a laying tort law in supplant traditional process liability substantive due and that the liability regulate down rules of conduct might even exist some cases where living together in injuries that attend grossly negligent. the individual was rejected society,” previously have we extremely high, may If the we Process, that the Due Clause should claims well demand much more of those who could impose duties interpreted to federal be us, upon might our loose it consciences traditionally analogous to those that are highly they up be shocked when do not live imposed by state tort law.... expectations. to our As the Fifth Circuit has (citation omit- at 1070 Id. at said: ted). Many simply applied have common courts incorporated that test Other circuits concept principles law tort of abuse jurisprudence by indicating that it into their that, holding while government power always in a case of this nature. must be met simple negligence is not actionable under that the test has declared recklessness, The Tenth Circuit 1983, gross negligence, § cal- necessary overlay when substantive due is a or intentional conduct lous indifference are_ claimed to arise from process violations are applicable While terms to com- Uhlrig v. governmental action. See some may help to determine what mon law torts (10th Cir.1995), Harder, 567, 573-74 power, type of conduct constitutes abuse of — U.S. —, 924, 133 misleading.... use of such terms is, only That unless the ac a standard of care. Such terms state outrageous that it does shock the the exact They tion is so do not take into account conscience, particular it constitute a constitu official or responsibilities cannot outrageous power certain actions. tional tort at all. Just how his to take clear, entirely action would have to be is King, Cir. Love v. recognizes especially when one Su 1986) (citations omitted). That statement seemed to use “shock the con preme Court generally to as like it seem and statements “arbitrary in a constitutional science” mental element sume that some exacerbated interchangeably. sense” almost so, I always Perhaps found. but will relationship expect that the between rather opined that has also The Third Circuit states, harm, foreseeable possible mental cannot be substantive there risk, harm what has led to and actual is gov at all the conduct of a violation unless that we find somewhat inconsistent locutions an employee “amounts to abuse ernmental prior cases. in some of our power that ‘shocks the conscience.’” official Vineland, complete quite is not Fagan City general v. our task See state, (3d Cir.1994) (en also, banc); identify some tort-like mental see once we 1303-09 Hatboro, speaking of a substantive due if we are Borough v. Mark ,—U.S. (3d Cir.) —, specific not linked to a cess claim which is 1151-53 denied Perhaps shocks the provision. It constitutional 133 L.Ed.2d entirely separate freestand- is an explain while tests like conscience went on to recklessness, wholly apart from normal consti- ing inquiry in even callous negligence, or inqui- it met, theory, perhaps tutional tort the acts of the offi- difference must be every ry that must be made constitutional type. We need not resolve

tort claim of this parties today because the have not

that issue They have satisfied

argued it at level. arguing the mental state

themselves majority opinion.

question answered is, lurking legal

But the issue there ultimately ignore

background, and we cannot

it. resolved, but that reso-

The issue must be case. What we

lution must await another by eliding it what the

cannot do is avoid Perhaps

Supreme has written. Court apotropaic solution is to use an eraser

best conscience,” it phrase on the “shocks the Thus, it. up Supreme Court use attempt

I in all but the to do that concur do; attempt, to that I

which we cannot as

dissent. AMERICA;

ALUMINUM COMPANY OF Corporation; Elf

Columbia Aluminum America, Inc.;

Atochem North Columbia Company; Aluminum Alu

Falls Intalco Corporation;

minum Kaiser Aluminum Corporation; Al

& Chemical Northwest Company; Reynolds

uminum Metals Inc.,

Company; Plaintiffs-Ap Vanalco

pellants, MARINE

NATIONAL FISHERIES SER Brown;

VICE; Richard H. offi his capacity Secretary Commerce;

cial as Wildlife; Fish De

U.S. & United States

partment Energy, Through Bonne Administration;

ville Power Randall W.

Hardy, capacity in his official as Admin

istrator of the Bonneville Power Admin

istration, Defendants-Appellees.

No. 95-35134. Appeals,

United States Court of

Ninth Circuit.

Argued and Submitted March 1996. Aug.

Decided 1996.

Case Details

Case Name: L.W. v. Dee Grubbs Thomas Nelson Marlin Hutton Richard Hill

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Aug 9, 1996

Citation: 92 F.3d 894

Docket Number: 19-17501

Court Abbreviation: 9th Cir.