Metropolitan News-Enterprise


Wednesday, December 18, 2013


Page 1


Guards’ Presence During Prisoner’s Medical Exam Did Not Violate Privacy Laws, Court of Appeal Rules


By JUSTIN LEVINE, Staff Writer


A prison physician who allowed a correctional officer to be present in his treatment room out of concerns for his own safety did not violate a prisoner patient’s reasonable expectation of privacy while examining him, the Fourth District Court of Appeal ruled yesterday.

David W. Faunce was convicted of first degree murder and is serving a life sentence at the R.J. Donovan Correctional Facility near San Diego. On numerous occasions, and over his objections, Faunce was treated by a prison doctor while in the presence of guard.

The doctor claimed the guard was necessary in the treatment room to ensure safety. Faunce said that the doctor’s concerns were “feigned.”

He eventually sued numerous prison officials for violations of his right to privacy under Penal Code § 636 and the California Constitution, as well as a claim for intentional infliction of emotional distress. Section 636 makes it unlawful for a person to nonelectronically eavesdrop on a conversation that occurs between a prisoner and his or her “attorney, religious adviser, or licensed physician” when a reasonable expectation of privacy exists.

A trial court sustained a defendants’ demurrer without leave to amend, concluding that Faunce’s claims failed because he did not plead a reasonable expectation of privacy. Faunce appealed, acting pro per.

Writing for a unanimous panel, Justice James McIntyre affirmed the dismissal based on the demurrer, holding that Faunce had no reasonable expectation of privacy under the circumstances.

McIntyre said:

“Faunce alleged he had knowledge of a prison policy, dating back to 2007, that limited an inmate’s right to confidentially in furtherance of the safety and security of the institution. Faunce acknowledges that defendants’ policies or procedures were based on safety concerns, although he characterized the safety concerns as ‘feigned.’ He admitted that defendants acted based on their policies or procedures as he specifically sought an injunction preventing defendants and their successors from enforcing any policy or practice that violated a prisoner’s rights under section 636. Faunce’s pleading shows that whatever expectation of privacy he had in this setting was not reasonable as defendants’ actions were based on prison policy to further the safety and security of the institution. Moreover, we take judicial notice of Faunce’s abstract of judgment showing he was convicted of first degree murder and is serving a life sentence without the possibility of parole.”

He rejected Faunce’s argument that his right to patient-physician privacy was “absolute,” stating that the specific terms of § 636 limited it to situations where there is a reasonable expectation of privacy and that other laws allowed prisons to balance privacy concerns with legitimate security and safety measures.

McIntyre also rejected Faunce’s claim of intentional infliction of emotional distress, writing:

“[A] policy requiring a convicted murderer be examined by a prison physician, that has expressed safety concerns, in the presence of a correctional officer does not amount to outrageous conduct.”

The case is Faunce v. Cate, 13 S.O.S. 6381.


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