California: State Immune from Bane Act Claim for Valley Fever Exposure
The California Court of Appeal held on August 10, 2017 that the state is immune from liability on a Bane Act claim brought by a prisoner exposed to valley fever.
Valley fever (officially known as Coccidioidomycosis or “cocci”) is an incurable and sometimes fatal fungal infection. The disease can cause debilitating conditions including flu-like symptoms, pneumonia, bone and joint infections, soft tissue abscesses and meningitis. It is contracted by inhaling spores from infected soil in certain areas of the Southwestern United States.
From 1991 to 1993, 70 percent of the reported cases of valley fever in California were reported in Kern County, in the San Joaquin Valley. Sixteen of the state’s 33 prisons are located in that area. As repeatedly reported in PLN, valley fever has become a health crisis in both Arizona and California prisons. [See: PLN, Apr. 2017, p.32; Oct. 2016, p.62; July 2016, p.32; June 2015, p.46; July 2013, p.28; July 2010, p.22; June 2008, p.22; Aug. 2007, p.1].
Dr. John Galgiani, a professor of medicine at the University of Arizona who founded a center that researches valley fever, served as an expert witness in a long-running California class-action medical care suit, Plata v. Brown. [See: PLN, July 2011, p.1]. On April 25, 2013, Dr. Galgiani filed an 80-page affidavit with the federal district court, declaring that valley fever was then a “public health emergency” at California’s Pleasant Valley and Avenal state prisons, where 535 of the prison system’s 640 cases of the disease were reported.
“Prison officials should be, but apparently are not, acting in a manner consistent with the situation where the lives of individuals are at substantial risk,” wrote Dr. Galgiani. In 2006, the California Department of Public Health had published a study on valley fever and recommended several preventative measures; however, prison officials did not implement most of those recommendations. The federal receiver monitoring the Plata litigation found the state had “moved slowly” to develop a reasonable response to the valley fever crisis.
On April 29, 2013, the receiver ordered California officials to transfer prisoners at high risk of contracting valley fever out of Pleasant Valley and Avenal. “Immediate steps are necessary to prevent further loss of life,” declared Joyce Hayhoe, a spokeswoman for the receiver’s office.
Epidemiological studies have revealed that certain races are at much higher risk of contracting the deadly version of valley fever. The risk to African-Americans is 10 times that of the general population, and even higher for Filipinos. Between 2006 and 2011, 71 percent of the California prisoners who died due to valley fever were black.
“In my opinion African-American prisoners should be excluded from these two prisons along with Filipinos, Inuits, persons with diabetes, HIV, or any immuno-compromising condition, and that decision should be implemented immediately,” Dr. Galgiani warned the court. “Not to do so will keep these groups at risk of severe complications from new valley fever infection. Moreover, there should be no transfers of any inmates with these ethnicities or medical conditions to either Pleasant Valley State Prison or Avenal State Prison for the same reasons.”
African-American prisoner Glenn Towery was held at the Kern Valley State Prison from March 2009 until his release in April 2013. He began experiencing symptoms of valley fever in 2010, but was not diagnosed with the disease until he was hospitalized for an enlarged heart the following year. Towery continued to suffer from valley fever after he was released from prison, and must take daily medication. He is unable to exercise and is susceptible to other illnesses such as pneumonia and the flu. He suffered a seizure in January 2014.
On January 31, 2014, Towery filed suit in state court, alleging various claims against prison officials related to their failure to protect prisoners from valley fever. He alleged a violation of the Bane Act (Civ. Code § 52.1), which covers legal claims for individuals whose constitutional rights have been violated through “threat, intimidation, or coercion,” under California Civ. Code § 52.1(a)-(b).
The state moved for judgment on the pleadings, arguing that immunity for public entities under § 844.6 barred Towery’s Bane Act claim. Section 844.6(a)(2) provides that a public entity is not liable for “an injury to any prisoner.” The trial court agreed and dismissed the claim, finding the Bane Act does not create an exception to that rule.
The California Court of Appeal affirmed. “Make no mistake, we recognize the human and social significance of this case,” the Court explained. “However we are bound by the law. Civil Code section 52.1 does not address the immunity established by Government Code section 844.6. Nothing in Civil Code section 52.1 indicates an intent to abrogate this specific immunity provision.”
Consequently, the appellate court rejected “Towery’s argument that the Legislature intended to exclude claims under Civil Code section 52.1 from the public entity immunity provided by section 844.6. If the Legislature had intended such an exclusion, it could have explicitly said so when enacting the Bane Act, either by including such a provision in that act or by amending section 844.6. It did not do so, and we therefore give effect to the plain language of section 844.6.”
See: Towery v. California, 14 Cal.App.5th 226, 221 Cal.Rptr.3d 692 (Cal. App., Dist II, Div. I, 2017).
Related legal case
Towery v. California
|Cite||14 Cal.App.5th 226, 221 Cal.Rptr.3d 692 (Cal. App., Dist II, Div. I, 2017)|