Monday, November 17, 2008
Court: State Had Duty of Care to Protect Transgendered Inmate
By STEVEN M. ELLIS, Staff Writer
A formerly incarcerated male-to-female transgendered person can proceed with a negligence action alleging state prison officials failed to act on complaints that she was repeatedly beaten and raped by cellmates, the First District Court of Appeal ruled Friday.
Reversing a trial court’s order sustaining the California Department of Corrections and Rehabilitation’s demurrer to the action by former Folsom State Prison inmate Alexis Giraldo, Div. Two held that jailers have a special relationship with prisoners giving rise to a duty of care to protect them from foreseeable harm inflicted by a third party.
However, Deputy Attorney General Jose A. Zelidon-Zepeda of the California Attorney General’s Office sharply criticized the decision, saying that the court’s creation of a “new cause of action” for inmates could lead to “very problematic potential ramifications,” and predicting an increase in the number of inmates’ suits against the department.
Prison Policies Challenged
Giraldo filed suit in 2007 against the department and various personnel, alleging negligence, intentional infliction of emotional distress and violation of the California Constitution’s cruel and unusual punishment clause. She specifically challenged “prison policies that place transgender inmates…, 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.”
Incarcerated in 2005 at North Kern State Prison on a parole violation, Giraldo had been recommended for placement at either California Medical Facility or California Men’s Colony, which have higher concentrations of transgender inmates and provide such inmates greater relative safety than at other state prisons, but in early 2006 she was instead sent to Folsom.
Within a week of her arrival, Giraldo claimed, an inmate employed as a lieutenant’s clerk requested that she be assigned as his cellmate, and then “sexually harassed, assaulted, raped and threatened” her on a daily basis after the request was granted.
She further alleged that another inmate made a similar request and engaged in the same behavior once the request was granted, that prison officials ignored her repeated reports of abuse and requests for transfer to a different cell, and that she was only finally placed in segregated housing two months later after her cellmate raped her and attacked her with a box-cutter.
San Francisco Superior Court Judge Peter J. Busch sustained the department’s demurrer to the negligence complaint on the basis that Giraldo had failed to allege a cognizable duty, and at trial on the remaining two counts the jury rejected her emotional distress claim. Meanwhile, Judge Ellen Chaitin dismissed the constitutional claim, reasoning that article I section 17 did not support a private right of action for tort damages.
On appeal, Justice James A. Richman wrote that the trial court had correctly decided the constitutional issue, but said that Busch erred when he concluded the department owed no duty of care to protect Giraldo from foreseeable harm.
Noting that the recognition of a duty owed by jailers to prisoners “finds support in numerous, if not all, pertinent authorities,” including the Restatement Second of Torts, hornbooks, legal encyclopedias, law review articles, other states’ precedent, the federal Prison Rape Elimination Act and California’s Sexual Abuse in Detention Elimination Act, Richman opined that a duty existed because “[i]t is manifestly foreseeable that an inmate may be at risk for harm.”
“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 from harm inflicted by others.
“This…is the epitome of a special relationship, imposing a duty of care on a jailer owed to a prisoner, and we today add California to the list of jurisdictions recognizing a special relationship between jailer and prisoner.”
Equitable Claims Moot
Richman also concluded that the trial court had not erred in dismissing Giraldo’s claim for declaratory and injunctive relief, reasoning that the trial court’s conclusion that her claims became moot upon her parole from prison in July 2007 was supported by substantial evidence.
Presiding Justice J. Anthony Kline and Justice Paul R. Haerle joined Richman in his opinion.
Counsel for Giraldo could not be reached for comment, but Zelidon-Zepeda told the MetNews that the Attorney General’s Office was still reviewing the opinion to determine whether to appeal.
He also said that the Department of Corrections and Rehabilitation had reviewed Giraldo’s allegations against department personnel and had cleared them of wrongdoing, finding that the employees had acted according to procedure.
The case is Giraldo v. California Department of Corrections and Rehabilitation, 08 S.O.S. 6165.
Copyright 2008, Metropolitan News Company