Metropolitan News-Enterprise


Friday, April 1, 2011


Page 1


State Held Not Liable for Blundered Release of Prisoner




The state cannot be held liable to two people who were stabbed multiple times by a prisoner whose release was mishandled by prison officials, the First District Court of Appeal has ruled.

Div. Three, in an unpublished opinion Wednesday by Presiding Justice William McGuiness, said Loren Bianca Shaller and Kermit Kubitz could not sue because the statute and regulations apparently violated in connection with the release of Scott Thomas were not designed for the protection of individual citizens. Even if they were, he added, the plaintiffs failed to establish a causal link between any breach of duty and their injuries.

Thomas, who had been designated a high-risk inmate and confined to administrative segregation, was released from San Quentin State Prison on Friday, May 18, 2007. He entered a bakery in the Twin Peaks neighborhood of San Francisco the next day, stabbing then-15-year-old Shaller, then attacking Kubitz when he came to the girl’s aid.

An investigation by the state’s Office of the Inspector General found that laws and established procedures were violated at multiple levels of the prison system.

Among the missteps identified by investigators were releasing Thomas more than a week ahead of schedule; dropping him at the San Rafael bus station and allowing him to travel unsupervised to San Francisco, even though his parole destination was in Southern California; and releasing him without a detailed parole plan.

In their San Francisco Superior Court complaint, Shaller and Kubitz alleged that the state breached mandatory duties.

They cited a statute that requires that inmates be instructed to report to a parole officer within two days and prohibits releasing inmates on a Friday, since parole offices are closed on the weekends, as well as a regulation requiring that high-risk inmates be escorted to the counties to which they are being paroled.

The trial judge sustained the state’s demurrer, and the case was dismissed.

McGuiness, writing for the Court of Appeal, agreed with the plaintiffs that they could sue for breach of duties imposed by Penal Code Sec. 3060.7, even though that section creates no private right of action. The statute waiving sovereign immunity for breach of mandatory duty, Government Code Sec. 815.6, creates the right of action, the presiding justice explained.

He also agreed that the state had breached its statutory duties in connection with Thomas’ release. But the legislative history of the Penal Code section, he concluded, indicates that it was intended “to facilitate the ability of a released parolee to meet his [two-day] reporting requirement, not to prevent the type of random attack that occurred in this case,” and that “prevention of injury to innocent parties is an incidental benefit of Penal Code section 3060.7, that cannot serve as a basis for liability under section 815.6.”

  The jurist went on to reject an alternative theory of liability, that the state may be held vicariously liable for employees’ negligence under Government Code Sec. 815.2, which provides, among other things, that a public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative,” unless “the employee is immune from liability.”

The only alleged negligence of the state’s employees, he explained, was that they failed to use due care in processing the release of Thomas.

“Essentially, plaintiffs seek to impose on state employees a duty to control Thomas so as to prevent his attack on plaintiffs,” McGuiness wrote. “We conclude there is no basis on which a duty to control a released parolee is or should be imposed in favor of members of the public who are injured by the independent criminal acts of released parolees.”

The general negligence factors set forth in Rowland v. Christian (1968) 69 Cal.2d 108, McGuiness concluded, do not support the imposition of a duty in these circumstances.

While it is foreseeable that a released prisoner may endanger members of the public, he reasoned, “neither the Legislature, nor the courts have deemed the risk so unreasonable as to create a right of action for damages in favor of members of the public who are injured by the independent criminal acts of released parolees.”

Nor, he wrote, were the alleged failings of the state employees morally blameworthy, since it was Thomas who committed the crimes, which the employees could not have prevented since the inmate would not, in any event, have been subject to around-the-clock supervision.

Addressing another Rowland factor, the presiding justice said it was unnecessary to impose tort liability in order to prevent the type of injuries that befell the plaintiffs. He cited the OIG report, which set forth a series of recommendations regarding the training of employees in how to carry out their responsibilities in Sec. 3060.7 and relevant rules, and discipline of employees who fail to comply.

Besides, McGuiness wrote, the employees, and therefore the state, are immune under Government Code Sec. 845.8 for “[a]ny 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.”

The case is Schaller v. State of California, A124966.


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