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California Court of Appeal Reinstates Lawsuit by San Quentin Prisoner Over Botched Transfer That Sparked COVID-19 Outbreak

by Matt Clarke

On March 13, 2023, the California Court of Appeal for the First Appellate District reinstated a putative class-action lawsuit brought by a prisoner at San Quentin State Prison alleging a problematic prisoner transfer led to a severe outbreak of COVID-19 early in the pandemic.

As PLN reported, a February 2021 report from the state Office of the Inspector General (OIG) determined there were zero cases of the disease at San Quentin before 122 prisoners arrived from the California Institution for Men in Chino—which was experiencing a disease outbreak—on May 30, 2020. By the end of June, the novel coronavirus that causes the disease had spread like wildfire in the elderly prison, which quickly recorded over 2,500 cases of COVID-19, plus 29 deaths. OIG laid the blame squarely on the state Department of Corrections and Rehabilitation (CDCR) for failing to properly test and quarantine the transferees. [See: PLN, July 2021, p.34.]

San Quentin prisoner Steven Malear then filed a claim with the state Government Claims Program (GCP). But two days before receiving a rejection of his claim from the GCP, Malear filed a lawsuit in state court alleging California and CDCR were responsible for the harm caused by their failure to take reasonable action to summon medical care for prisoners who were in immediate need of it, in violation of Gov. Code§ 845.6. The care included screening the transferees for COVID-19 and isolating them from the San Quentin population.

The trial court sustained Defendants’ demurrer, finding Malear failed to comply with the claim presentation provisions of Gov. Code§§ 810 et seq., 945.4. It noted that Malear had filed an amended complaint after GCP rejected his claim, but it held this did not cure the filing defect.

With the assistance of attorneys Charles C. Kelly of Hersh & Hersh; Matthew D. Carlson; and Ben Rosenfed and Tyler R. Smith of Pier 5 Law Offices, Malear appealed. The Court of Appeal noted that Gov. Code §§ 905.2 and 945.4 require that all claims against the state for money or damages be presented to and actually rejected or deemed rejected by the state Board of Control before a lawsuit can be filed on that claim against the state. This is a statutory prerequisite to filing suit, per Lowry v. Port San Luis Harbor District, 56 Cal.App.5th 211 (2020). However, quoting Code Civ. Proc. § 472, subd. (a), the Court said “‘a party may amend its pleading once without leave of the court at any time before the answer, demurrer, or motion to strike is filed,’” and an “amended complaint supersedes all prior complaints” such that “the original complaint ceases to have any effect either as a pleading or as a basis for judgment,” per State Compensation Ins. Fund v. Superior Court, 184 Cal.App.4th 1124 (2010).

Thus, the amended complaint operated to supersede the prematurely filed original complaint and demonstrated substantial compliance with § 945.4, the Court said. Further, the complaint alleged sufficient facts to constitute a cause of action for failure to summon medical care, and Defendants presented insufficient facts to show they were entitled to statutory immunity. Therefore, the judgment of the trial court was reversed. See: Malear v. State of Cal., 89 Cal. App. 5th 213 (2023).

The noose continued to tighten around the state on August 7, 2023, when the U.S. Court of Appeals for the Ninth Circuit refused to dismiss a suit filed by Patricia Polanco, the widow of a guard who died in the outbreak. See: Polanco v. Diaz, 76 F.4th 918 (9th Cir. 2023). Then on October 3, 2023, the Ninth Circuit made a similar decision to permit a suit filed by Jacqueline Hampton, the widow of a prisoner who also died in the outbreak. See: Hampton v. Calif., 2023 U.S. App. LEXIS 26132 (9th Cir.).

All three cases—and dozens more—remain pending, and PLN will update developments as they are available. Hampton and Polanco are both represented by attorneys with Haddad & Sherwin in Oakland. See: Polanco v. Diaz, USDC (N.D. Cal.), Case No. 3:21-cv-06516; and Hampton v. Calif., USDC (N.D. Cal.), Case No. 3:21-cv-03058.  

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Related legal cases

Malear v. State of Cal.

Polanco v. Diaz

Hampton v. Calif.