Foote v. State of California

Filed 8/22/08 Foote v. State of California CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County, David L. Minning, Judge. Affirmed.

Epstein Becker & Green and Paul M. Gelb for Plaintiff and Appellant.

Edmund G. Brown Jr., Attorney General, James M. Schiavenza, Senior Assistant Attorney General, Marsha S. Miller, Supervising Deputy Attorney General, Karen S. Darling, Deputy Attorney General, for Defendants and Respondents.

INTRODUCTION

Plaintiff Patrick Foote (plaintiff) appeals a summary judgment entered against him on his claims for intentional infliction of emotional distress (IIED) and violation of his civil rights pursuant to 42 U.S.C. section 1983 (section 1983), arising from his alleged unlawful incarceration at the California Institution for Men at Chino (Chino) for 87 days during 2003. Defendants are the State of California; the California Department of Corrections and Rehabilitation (the Department); the Departments Board of Prison Terms (the Board); Marvin Speed III, former Executive Officer of the Board; Jean S. Woodford, a former director of the Department; and Lorie R. DiCarlo (DiCarlo), a former warden at Chino (collectively, defendants).[1] For the reasons stated below, we affirm the judgment.

BACKGROUND

A. Factual Background[2]

On June 7, 2003, plaintiff was released to parole from state prison after serving a 16-month sentence on vehicle theft and drug possession convictions. Plaintiffs understanding was that if he went one year with no parole violation, he would be discharged from parole after 13 months, in July 2004. If plaintiff violated parole, however, his parole discharge date would be extended to 2006.

On July 8, 2003one month after his release from prisonplaintiff was arrested by the Newport Beach Police Department for felony possession of a destructive device (Pen. Code, 12303). Plaintiff asserted the device was a skyrocket remnant he had confiscated from a group of children during the July 4th holiday. Plaintiff pleaded not guilty to the new charge; a parole hold was placed on plaintiff, and he was incarcerated in the Orange County Jail. In late August, plaintiffs motion to suppress evidence relating to the new charge was denied. Pursuant to a plea agreement, plaintiff entered a plea of no contest to the new charge. He was sentenced to time served and three years informal probation. If plaintiff completed one year with no probation violation, the court was to reduce the charge to a misdemeanor pursuant to Penal Code section 17, subdivision (b) and dismiss it. Plaintiff declared that the trial court ordered him released.

On September 2, 2003, instead of being released from jail as he expected, plaintiff was placed on a bus and transported to Chino. Plaintiff never received notice of the reasons for his parole hold and never received a parole revocation hearing. While incarcerated at Chino, plaintiff saw inmates stabbed by other inmates; was present in the prison yard when a guard in a tower started shooting; and was present in the prison cafeteria when he heard that somebody went after somebody. Plaintiff feared for his own safety, but was never physically harmed.

Plaintiff declared that, in an effort to obtain his release, he filed five administrative appeals and spoke to several correctional officers, stating that he had not received a parole revocation hearing. In late October or early November, plaintiff spoke to DiCarlo and explained what was going on; DiCarlo told plaintiff she would look into it. Plaintiff was released to parole from Chino on November 26, 2003. Plaintiff was discharged from parole on July 7, 2004.

B. Procedural Background

Plaintiff sued defendants in March 2005 and filed his first amended complaint in December 2005. In his first amended complaint, plaintiff alleged three section 1983 claims against DiCarlo, including (1) violation of plaintiffs Fourteenth Amendment rights by detaining plaintiff without due process; (2) violation of plaintiffs Eighth Amendment rights for incarcerating him illegally; and (3) violation of plaintiffs Eighth Amendment rights for forc[ing] plaintiff to witness brutal and cruel acts by other prisoners. Plaintiff alleged one state law cause of action against all defendants for IIED.

In September 2006, defendants moved for summary judgment or, in the alternative, summary adjudication, citing 28 different grounds for relief. In general, defendants asserted that each of plaintiffs claims was legally deficient as pleaded and unsupported by the evidence.[3] With respect to plaintiffs IIED claim, defendants also asserted that each of them was immune under various Government Code provisions. The trial court granted summary judgment, concluding that 27 of defendants 28 grounds for relief were meritorious, and entered judgment for defendants. Plaintiff timely appealed.[4]

DISCUSSION

A. Standard of Review

On an appeal from a grant of summary judgment, we examine the record de novo to determine whether triable issues of material fact exist. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767.) We view the evidence in a light favorable to, and resolve any evidentiary doubts or ambiguities in favor of, the non-moving party. (Id. at pp. 768-769.) The moving party bears the burden to demonstrate that there is no triable issue of material fact and that [it] is entitled to judgment as a matter of law. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850, fn. omitted.) The moving party initially must make a prima facie showing of the nonexistence of any triable issue of material fact. (Id. at p. 850.) If the moving party makes a prima facie showing, the burden shifts to the party opposing summary judgment to make [its own] prima facie showing of the existence of a triable issue of material fact. (Ibid.) There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. (Ibid., fn. omitted.)

B. Plaintiffs IIED Claim

To state a cause of action for IIED, plaintiff must allege (1) extreme and outrageous conduct by defendants with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) plaintiff suffered severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by defendants outrageous conduct. (Cervantez v. J.C. Penney Co. (1979) 24 Cal.3d 579, 593; Hailey v. California Physicians Service (2007) 158 Cal.App.4th 452, 473-474.) Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community. (Cervantez v. J.C. Penney Co., supra, 24 Cal.3d at p. 593; Berkley v. Dowds (2007) 152 Cal.App.4th 518, 533-534.) Whether defendants conduct was sufficiently outrageous is a question of law that initially must be determined by the court. If reasonable persons may differ, the jury must determine whether the conduct was, in fact, outrageous. (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 499; Berkley v. Dowds, supra, 152 Cal.App.4th at p. 534.) Moreover, defendants conduct must be conduct directed at the plaintiff, or occur in the presence of a plaintiff of whom the defendant is aware. (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1002, quoting Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.)

1. DiCarlo[5]

Plaintiff argues that he submitted evidence that DiCarlo intentionally or recklessly disregarded the fact that [plaintiff] was illegally incarcerated. Most of the evidence plaintiff cites, however, concerns the conduct of subordinate correctional officers at Chino, not the conduct of DiCarlo. Pursuant to Government Code section 820.8,[6]DiCarlo is immune from liability for the acts of other persons. There is no evidence that DiCarlo personally was involved in or directed the correctional officers alleged misconduct in any of the incidents cited by plaintiff. Plaintiff also argues that DiCarlo might be liable if . . . she had learned from her staff (italics added) that plaintiff claimed to be unlawfully incarcerated and did nothing. Assuming that plaintiff correctly states the law, he submitted no evidence that DiCarlo did, in fact, learn from her staff of plaintiffs claim that he was wrongfully incarcerated.

Plaintiff argues that he presented evidence of personal misconduct by DiCarlo in that he explained [to her] what was going on in late October or early November of 2003, but that several more weeks passed with no action. Such evidence is insufficient to raise a triable issue.

Plaintiff cites no authority that the failure of a prison warden to act immediately on an inmates uncorroborated, informal complaint of wrongful detention is so outrageous that it supports tort liability for IIED. (See Davidson v. City of Westminster (1982) 32 Cal.3d 197, 210 [stabbing victim failed to state claim for IIED against police officers where officers failed to warn victim and stood by as she was stabbed by a suspect that the officers had under surveillance for committing similar crime].) Even if DiCarlo had a duty to act on plaintiffs complaint in some reasonable manneran issue on which we express no opinionthere is no evidence that her failure to do so amounted to more than mere negligence. Negligent conduct will not support a claim of IIED, even if the negligent conduct in fact caused the plaintiff severe emotional distress. (Davidson v. City of Westminster, supra, 32 Cal.3d at p. 210; Ochoa v. Superior Court (1985) 39 Cal.3d 159, 165, fn. 5.) Intentional infliction of emotional distress requires conduct which is especially calculated to cause . . . the claimant mental distress of a very serious nature. (Coon v. Joseph (1987) 192 Cal.App.3d 1269, 1273, citing Ochoa v. Superior Court, supra, 39 Cal.3d at p. 165, fn. 5; see Smith v. Pust (1993) 19 Cal.App.4th 263, 274 [Intentional means more than the nonaccidental nature of the wrongful act].)

Furthermore, plaintiff failed to introduce any affirmative evidence that DiCarlo, in fact, took no action. Plaintiffs declaration to that effect was mere speculation. It is not reasonable to infer from the bare fact that plaintiff was not released immediately after his conversation with DiCarlo that DiCarlo did nothing. A prison warden in California does not have the authority unilaterally to effect the release of a prisoner committed to state prison. (Pen. Code, 2901; see Albori v. Smith (1937) 18 Cal.App.2d 615, 618-619.) The avenues available to prisoners to vindicate claims of wrongful detention such as plaintiffs are the Departments administrative appeals process (see Cal. Code Regs., tit. 15, 3084.7, subd. (h)) and, if necessary, habeas corpus. (Pen. Code 1487, subd. (2); In re Duran (1974) 38 Cal.App.3d 632, 636.) As explained below, two or three weeks after plaintiffs conversation with DiCarlo, action was taken on plaintiffs administrative appeal. The trial court properly granted summary judgment for DiCarlo on plaintiffs IIED claim.

2.The Department and the Board

a. Disregarded Requests for Release

Plaintiff alleged that he suffered emotional distress because employees of the Department and the Boardspecifically, DiCarlo, Speed, Woodford and unnamed correctional officersintentionally disregarded plaintiffs requests to be released and fail[ed] to provide Plaintiff with adequate avenues to obtain his release. The trial court concluded that plaintiff failed to submit evidence that defendants intentionally or recklessly inflicted emotional distress on plaintiff. We agree.

As noted above, the evidence submitted by plaintiff failed to raise a triable issue with respect to his IIED claim against DiCarlo. Plaintiff submitted no evidence that Speed or Woodford were aware oflet alone intentionally disregardedhis requests to be released.

Plaintiff declared that he filed five administrative appeals asserting that he was wrongfully incarcerated and that he never received a response. The record contains only two inmate/parolee appeal forms from plaintiff, dated November 13, 2003 and November 18, 2003, respectively. Both were submitted in evidence by plaintiff. In the body of the November 13 appeal form, plaintiff asserted that he previously had filed appeals on October 20, October 24, and October 30.[7] The October appeals are not in the record. The November 13 appeal form contained a handwritten staff response dated November 14, 2003, the day after the appeal was filed. The staff response stated that plaintiff had been interviewed; that plaintiffs case had been discussed; that the prison records supervisor had notified Paroles with plaintiffs case factors; that the Board would schedule plaintiff; and that plaintiff was given an appeal form for the Board.

Assuming plaintiff filed his appeals as represented, plaintiff did not file his first appeal until October 20after he had been at Chino for approximately 48 days. Plaintiff was interviewed by prison staff 25 days after the appeal was filed; plaintiff was released from prison 12 days thereafter. Plaintiff supplied no evidence indicating what is entailed in investigating and processing an inmates release following an administrative appeal. It may be that no matter how onerous incarceration is, the mechanics involved in reviewing an inmates appeal make it impractical to act more promptly. Plaintiff submitted no evidence that, under the circumstances, a 25-day delay in responding to his first appeal and a 37-day delay in effecting his release was so unreasonable that the delay alone supports an inference that the Department or the Board acted intentionally or recklesslyand not just negligentlyto cause plaintiff emotional distress.[8]

Plaintiff emphasizes that he filed five appeals because heNEVER received a single response to his appeals. The fact that plaintiff filed multiple appeals, however, does not give rise to an inference that the Department or the Board intentionally disregarded his claims. Plaintiff filed his appeals in rapid successionthree within 10 days of one another in late October, two within five days of one another in November, and all five within a 29-day period.

Furthermore, contrary to plaintiffs declaration that he NEVER received a response, the November 13 appeal form, as noted above, contained a staff response indicating that prison staff had acted on plaintiffs appeal. The Board ordered plaintiffs release from prison less than two weeks later. The evidence thus would not support the conclusion that the Department or the Board intentionally disregarded plaintiffs requests to be released with the intention of causing, or with reckless disregard of the probability of causing, plaintiffs emotional distress.

Plaintiff also relies on evidence that he told several correctional officers that he had not received a parole revocation hearing. Presumably, plaintiff claims that these correctional officers also did nothing. Plaintiff submitted no evidence and cites no authority, however, that the unidentified correctional officers to whom he spoke had either the authority or the responsibility to investigate or resolve uncorroborated complaints of wrongful incarceration, such that their alleged inaction amounts to intentional or reckless misconduct toward plaintiff. Furthermore, plaintiff declared that one of these correctional officers directed plaintiff to go to an office to speak with a secretary, who in turn told plaintiff that he should file an administrative appeal. Evidence that one of the officers directed plaintiff to the appropriate channel to address his grievance is not consistent with a claim that the officers intentionally disregarded his plight. Moreover, plaintiffs assertion that he repeatedly raised the issue of his wrongful incarceration through the administrative appeals process undermines any causal relationship between the alleged inaction of the correctional officers and plaintiffs emotional distress.

b. Rude Remarks

Plaintiff alleged that several correctional officers snickered, laughed, teased, harassed and continuously humiliated Plaintiff by constantly informing Plaintiff that he would never be released and that he, Plaintiff, had no recourse. Plaintiff testified in his deposition to the following incidents:

        When plaintiff arrived at Chino, he told a correctional officer that he was there without a parole hearing or anything on a violation. The deputy snicker[ed] by just kind of having a smirk on [his] face, shook his head and said, good luck.

        While in the gym at Chino, plaintiff attempted to tell a correctional officer that he had not had a parole revocation hearing. The officer laughed and gave me some crazy look . . . , like, are you for real kind of thing . . . .

        While in his housing area at Chino, plaintiff tried to tell two C.O.s, who responded with kind of a laugh and a snicker.

The conduct of which plaintiff complains was, as a matter of law, insufficient to sustain a tort action for IIED. Liability for intentional infliction of emotional distress extends only to conduct so extreme and outrageous as to go beyond all possible bonds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. (Coleman v. Republic Indemnity Ins. Co. (2005) 132 Cal.App.4th 403, 416.) [O]utrageous conduct is that which is the most extremely offensive. (Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1129, italics added.) Conduct that is merely offensive may be irritating, insulting or even distressing but it is not actionable and must simply be endured without resort to legal redress. (Ibid.)

Snickering, eye-rolling and similar mild expressions of disbelief or disdain fall within the category of mere insults, threats, annoyances and petty oppressions which fall outside the tort of intentional infliction of emotional distress. (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 499 [threatening telephone message not sufficiently outrageous]; see Ross v. Creel Printing & Publishing Co. (2002) 100 Cal.App.4th 736, 747 [debt collectors implication that debtor had violated criminal law by passing a bad check not outrageous]; Yurick v. Superior Court, supra, 209 Cal.App.3d at pp. 1124-1127, 1129 [supervisors statements in front of co-workers that plaintiff was senile and a liar not outrageous]; Rest.2d Torts, 46, com. d.) The trial court properly granted summary judgment on plaintiffs IIED claim.

C. False Imprisonment

California law permits a former prisoner to bring a claim for false imprisonment when the prisoners release from state custody was, in certain circumstances, unlawfully delayed. (Sullivan v. County of Los Angeles (1974) 12 Cal.3d 710, 714-715; see also Perez-Torres v. State of California (2007) 42 Cal.4th 136, 140.) Plaintiff did not specifically plead such a claim. Plaintiff nevertheless argues that his first amended complaint set forth ample facts to state a claim for false imprisonment, which claim the trial court wrongly dismissed.

In effect, plaintiff asks this court, for the first time on appeal, to construe his complaint to state a claim for false imprisonment because he stated facts suggesting false imprisonment, and then to reverse defendants summary judgment based on a claim that was neither a subject of defendants motion nor considered by the trial court. This we will not do. Generally, the rules relating to the scope of appellate review apply to appellate review of summary judgments. [Citation.] An argument or theory will . . . not be considered if it is raised for the first time on appeal. . . . Thus, possible theories that were not fully developed or factually presented to the trial court cannot create a triable issue on appeal. [Citation.] A party is not permitted to change his position and adopt a new and different theory on appeal. To permit him to do so would not only be unfair to the trial court, but manifestly unjust to the opposing litigant. [Citation.] (Expansion Pointe Properties Limited Partnership v. Procopio, Cory, Hargreaves & Savitch, LLP (2007) 152 Cal.App.4th 42, 54-55.) To preserve the issue for appeal, plaintiff should have specified before the trial court that he intended to rely upon a false imprisonment theory of liability, or he should have sought to amend his complaint at the summary judgment stage. He did neither. Thus, plaintiff forfeited any claim that his complaint should be construed to state a claim for false imprisonment.

D. Section 1983 Claim Against DiCarlo

Plaintiffs first cause of action alleged a claim pursuant to section 1983 against DiCarlo[9]for violation of plaintiffs right to due process under the Fourteenth Amendment.[10] Section 1983 provides in relevant part, Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . . Section 1983 thus permits individuals to sue state actors for violating their federal constitutional or statutory rights. (Parratt v. Taylor (1981) 451 U.S. 527, 535, overruled on other grounds in Daniels v. Williams (1986) 474 U.S. 327, 330-331; ODea v. Bunnell (2007) 151 Cal.App.4th 214, 219.) State courts look to federal law to determine what conduct will support an action under section 1983. (Truong v. Orange County Sheriffs Dept. (2005) 129 Cal.App.4th 1423, 1427; Weaver v. State of California (1998) 63 Cal.App.4th 188, 203.)

Neither states nor state officials acting in their official capacities are person[s] subject to liability for damages under section 1983. (Will v. Michigan Dept. of State Police (1989) 491 U.S. 58, 71, fn. 10; Pitts v. County of Kern (1998) 17 Cal.4th 340, 348.) State officials sued in their personal capacities, however, are person[s] under section 1983 and may be held liable for damages. (Kentucky v. Graham (1985) 473 U.S. 159, 166; Pitts v. County of Kern, supra, 17 Cal.4th at p. 350.) A personal-capacity action seeks to impose personal liability upon a government official for actions he takes under color of state law. (Kentucky v. Graham, supra, 473 U.S. at p. 165.)

To prevail in a personal-capacity action, a plaintiff must establish that the defendant caused the deprivation of a federal right. (Kentucky v. Graham, supra, 473 U.S. at p. 166.) The plaintiff must therefore show that the defendant personally participated in the deprivation (Macias v. County of Los Angeles (2006) 144 Cal.App.4th 313, 323; see Jones v. Williams (9th Cir. 2002)297 F.3d 930, 934; Wimmer v. Suffolk County Police Dept. (2d Cir. 1999) 176 F.3d 125, 137; Martin v. Sargent (8th Cir. 1985) 780 F.2d 1334, 1338) or, particularly in cases alleging a culpable omission, exhibited deliberate indifference to the plaintiffs rights. (Estelle v. Gamble (1976) 429 U.S. 97, 104-106; Haygood v. Younger (9th Cir. 1985) 769 F.2d 1350, 1354.) Supervisors are not vicariously liable under section 1983 for the acts of their subordinates. (Jones v. Williams, supra, 297 F.3d at p. 934; Hansen v. Black (9th Cir. 1989) 885 F.2d 642, 645-646.) Supervisors may be liable, however, for their own culpable action or inaction in the training, supervision, or control of [their] subordinates, for [their] acquiescence in the constitutional deprivations of which the complaint is made, or for conduct that showed a reckless or callous indifference to the rights of others. (Preschooler II v. ClarkCountySchool Bd. (9th Cir. 2007) 479 F.3d 1175, 1183.)

Plaintiff alleged that DiCarlo violated plaintiffs right to due process because he was (1) not given notice of the reason for his parole hold (notice) or a parole revocation hearing (hearing), and (2) he was held in custody beyond the statutory required 45 day period to receive a . . . hearing.

With respect the alleged failure to give plaintiff notice and a hearing, plaintiff failed to present evidence that DiCarlo personally was involved in or aware of those alleged deprivations when they occurred. DiCarlo was the warden at Chino. She was not a member of the Board of Prison Terms, and there is no allegation or evidence that she participated in any decision to deny plaintiff notice or a hearing, or that she had any duties with respect to giving notice or setting hearings. Plaintiff himself asserts that he should have been given both notice and the hearing by August 29, 2003, before he was transferred to Chino.

With respect to his unlawful detention at Chino, plaintiff asserts two theories of liability. First, plaintiff argues that DiCarlo had direct supervisory control over the prison staff who reviewed his administrative appeals and the correctional officers whom he told of his unlawful detention. Plaintiff submitted no evidence, however, that DiCarlo was involved in or aware of the alleged misconduct of the administrative appeals staff or correctional officers. Plaintiff did not allege and submitted no evidence that DiCarlo was responsible for any culpable action or inaction in the training, supervision, or control of [her] subordinates . . . . (Preschooler II v. Clark County School Bd., supra, 479 F.3d at p. 1183.)[11] There is no basis to hold DiCarlo liable under section 1983 for the acts of her subordinates.

Fialkowski v. Shapp (D.C. Pa. 1975) 405 F. Supp. 946, upon which plaintiff relies, is inapposite. That case arose on a motion to dismiss. The court held that the plaintiffs alleged personal involvement by two school supervisors in the deprivation of students rights by alleging that the supervisors knew of widespread violations occurring in a local school district and that the supervisors had the authority and the duty to remedy those violations. (Id. at p. 951.) In this case, plaintiff submitted no evidence of widespread violations of parolees due process rights at Chino, or that DiCarlo knew of any such violations.

Second, plaintiff argues that DiCarlo was deliberately indifferent to the deprivation of his rights because, in late October or early November, he personally informed DiCarlo that he was unlawfully detained and no action was taken for several more weeks. As with his IIED claim, however, plaintiff submitted no direct evidence that no action was taken, and it is not reasonable to infer from the mere passage of time between plaintiffs conversation with DiCarlo and his release that DiCarlo did nothing. (See Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 852.)

Furthermore, mere delay in remedying an alleged rights violation does not, without more, give rise to an inference of deliberate indifference. As with intent to cause emotional distress, deliberate indifference cannot be established by evidence of negligence or inadvertence. Deliberate indifference requires the conscious disregard of a substantial risk of serious harm. (See Farmer v. Brennan (1994) 511 U.S. 825, 836-837.) In other words, [d]eliberate indifference is . . . tantamount to intent. (Board of County Commissioners of Bryan County, Oklahoma v. Brown (1997) 520 U.S. 397, 419.) Accordingly, delay in remedying an alleged rights violation may give rise to an inference of deliberate indifference only if evidence indicates that the delay was unreasonable under the circumstances. (See McNeal v. United States (10th Cir. 1977) 553 F.2d 66, 67-68 [four and one-half month delay in holding parole revocation hearing did not violate due process unless delay was unreasonable and prejudicial]; see also Reese v. State (Wyo. 1993) 866 P.2d 82, 84-85 [probationer claiming violation of due process from delayed revocation hearing bears burden of establishing length of delay, cause of delay and prejudice].)

In this case, plaintiff asserts that DiCarlo was obligated to investigate his claim of wrongful detention. But there is no evidence that such an investigation would not take time. Prison staff acted to remedy plaintiffs situation two or three weeks after plaintiff spoke to DiCarlo. Plaintiff submitted no evidence that such a delay was unreasonable under the circumstances.

Plaintiff relies on Oviatt v. Pearce (9th Cir. 1992) 954 F.2d 1470. That case is distinguishable. In Oviatt,an arrestee was held for 114 days without arraignment due to an error by a clerk in omitting the arrestees name from a docket sheet. (Id. at p. 1473.) The Ninth Circuit concluded that substantial evidence supported a jury finding that the county sheriff was deliberately indifferent to the arrestees due process rights. Evidence established that the sheriff knew of at least 19 incidents in which an inmate had remained incarcerated for periods of undetermined length because they had missed their arraignments, yet the sheriff failed to institute any procedures to alleviate the problem. [I]t was virtually certain that some inmates would, as a result, be erroneously deprived of their liberty. (Id. at p. 1478.) Unlike the situation in Oviatt, there is no evidence in this case that DiCarlo knew of prior incidents similar to plaintiffs.

E. Other Grounds

In view of our conclusion that the summary judgment should be affirmed, we do not reach the other grounds for summary judgment invoked by the trial court and discussed by the parties.

DISPOSITION

The judgment is affirmed. Each party to bear his, her, or its own costs.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MOSK, J.

We concur:

TURNER, P. J.

KRIEGLER, J.

Publication courtesy of San Diego free legal advice.

Analysis and review provided by Santee Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

[1] The parties disagree whether Chino is a party to this lawsuit. Although Chino was named (as California Institute For Men At Chino) as a defendant in the caption of plaintiffs first amended complaint, there is no indication in the record that Chino was served or made an appearance in the trial court. In any event, Chino was not a party to the summary judgment proceedings and was not named in the judgment. Whatever Chinos status in the trial court, Chino is not a party to this appeal.

[2] We state the facts consistent with the rules that we view the evidence in the light most favorable to plaintiff[] and liberally construe plaintiff[s] evidentiary submissions and strictly scrutinize defendants own evidence, in order to resolve any evidentiary doubts or ambiguities in plaintiff[s] favor. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.) Evidentiary objections not made or ruled upon are deemed waived. (Code Civ. Proc., 437c, subds. (b)(5), (d); Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, 1186-1187, fn. 1, overruled on another ground in Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853.)

[3] Defendants submitted as evidence in support of their motion the interrogatory responses and deposition testimony provided by plaintiff during discovery setting forth the facts on which plaintiffs claims were based. On summary judgment, a defendant may rely on a plaintiffs factually devoid discovery responses to shift to the plaintiff the burden of producing affirmative evidence to raise a triable issue. (Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 106-107; see Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.) Plaintiff does not contend on appeal that defendants failed to meet their initial burden of producing evidence to demonstrate that there was no triable issue of material fact.

[4] Plaintiff (then acting in propria persona) failed to include in the record on appeal the first amended complaint, the parties separate statements, the evidence submitted by defendants on summary judgment, and the judgment. We previously granted defendants motion to augment the record with the pleadings and evidence necessary to resolve plaintiffs appeal on the merits. The judgment is in the court file, and we order the record augmented to include it. (Cal. Rules of Ct., rules 8.122(b)(1)(B), 8.155(a)(1)(A).) We treat plaintiffs premature notice of appeal as an appeal from the final judgment. (Cal. Rules of Ct., rule 8.104(e)(2).)

[5] Plaintiff makes no claim of error with respect to the summary judgments in favor of defendants Speed and Woodford. Plaintiff has thus abandoned those claims. (Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 685.)

[6] Government Code, section 820.8 provides, Except as otherwise provided by statute, a public employee is not liable for an injury caused by the act or omission of another person. Nothing in this section exonerates a public employee from liability for injury proximately caused by his own negligent or wrongful act or omission.

[7] Plaintiff asserts that he filed these as emergency appeals requiring a response from prison staff within five days. It appears, however, that plaintiffs appeals did not qualify as emergency appeals. (See Cal. Code Regs., tit. 15, 3084.7, subd. (a).) Regulations governing inmate appeals relating to the computation of an inmates prison term require that, prior to filing a formal appeal, the inmate submit the appeal to the records office for research and documenting of the relevant case facts. (Cal. Code Regs., tit. 15, 3084.7, subd. (h).) The record does not indicate that plaintiff complied with that procedure.

[8] See footnote 3 ante. Any unreasonable delay should be avoided, but we deal with whether there are triable issues of material fact as to the cause of action pleaded.

[9] Plaintiff stated in his first amended complaint that DiCarlo was sued in both her individual and official capacity [sic]. On appeal, plaintiff pursues a section 1983 claim against DiCarlo in her personal capacity only.

[10] Plaintiff did not pursue on appeal his second and third causes of action under section 1983 for violation of his Eighth Amendment rights. Plaintiff forfeited any claims of error with respect to those causes of action. (Haley v. Casa Del Rey Homeowners Assn. (2007) 153 Cal.App.4th 863, 871; Niko v. Foreman (2006) 144 Cal.App.4th 344, 368.)

[11] See footnote 3 ante.