CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
Plaintiff and Appellant,
(Super. Ct. No. 04AS01419)
MICHAEL BUNNELL et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Sacramento
County, Loren E. McMaster, Judge. Affirmed.
The Scott Law Firm, John Houston Scott and Lizabeth N. de
Vries, for Plaintiff and Appellant.
Edmund G. Brown, Jr., and Bill Lockyer, Attorneys General,
Thomas D. McCrackin, Supervising Deputy Attorney General, Kevin
W. Reager, Deputy Attorney General, for Defendants and
Serving as a correctional officer is one of the “‘toughest
beat[s] in the State.’”
This is certainly true if, as plaintiff
Patrick O’Dea alleges, prison officials orchestrate a fight
between rival prison gangs.
The question we must resolve in
this case is whether defendants Michael Bunnell (an associate
warden at Folsom State Prison), Oliver Acuna (a captain at
Folsom State Prison), and Alan Baber (a lieutenant at Folsom
State Prison) deprived O’Dea (a correctional officer at Folsom
State Prison) of his liberty interests under the federal due
process clause when he was injured while quelling a fight
between rival prison gangs.
As we will explain, the answer to
this question is “no,” because defendants did not restrain
O’Dea’s ability to act on his own behalf, even if they
orchestrated the fight as O’Dea alleges.
We therefore affirm
the judgment dismissing the case against defendants.
FACTUAL AND PROCEDURAL BACKGROUND
This case comes to us after a grant of summary judgment in
favor of defendants.
We therefore state the facts in the light
most favorable to O’Dea as the party opposing the motion.
(County of Los Angeles v. Superior Court (2002) 102 Cal.App.4th
627, 633, fn. 1.)
O’Dea was injured while quelling a fight between rival
prison gangs on April 8, 2002.
In the months prior to the
fight, the prison had been on lockdown because of a January riot
in which the Northern Hispanic prison gang attacked the Southern
Hispanic prison gang.
Sometime in February, the Southerners
were “return[ed] to normal programming” while the Northerners
remained on lockdown.
On the morning of April 8, 2002, O’Dea was told to “stick
around on the yard” because the Northerners were going to be
At the time, O’Dea did not know there was an “unlock
plan” or that a fight was anticipated between the Northerners
O’Dea positioned himself “in the area near the
yard shack and the custody ground level patio.”
At about 9:45 a.m., O’Dea saw Northerners being released
from building 1, although he had not heard the usual radio
transmission by the yard sergeant authorizing the release.
released prisoners went directly to the area of the yard where
the Northerners usually congregate.
Also on the yard were
Southerners who had been released onto the yard earlier that
The yard sergeant radioed to building 1 “that she had not
called the yard yet and that she was not ready.”
yard sergeant’s concerns, no steps were taken to stop or delay
the release of the Northerners so the yard sergeant could clear
the yard of the Southerners.
At about 10:25 a.m., some of the Southerners began walking
together toward the handball courts in the direction of the
Shortly thereafter, more Southerners moved toward
the handball courts until a large group of Southerners started
running toward the Northerners.
The result was a fight between
about 100 Hispanic inmates with the Southerners outnumbering the
O’Dea ran toward the fight and yelled for the inmates to
O’Dea pepper sprayed the inmates who did not comply.
When he ran out of pepper spray, O’Dea “took out [his] baton and
After the correctional officers quelled the fight,
O’Dea remained on the yard and helped “put flex cuffs on
inmates and provide security to the area.”
In the afternoon, O’Dea noticed pain in his neck and arms,
numbness in his fingers, and “jerk[ing] and twitch[ing]” in his
chest and back muscles.
In July 2002, he had neck surgery.
June 2003, he was “medically retired.”
O’Dea alleged that the fight on April 8, 2002, was
orchestrated by Bunnell, Acuna, and Baber.
According to O’Dea’s
evidence, Bunnell made the decision to unlock the Northerners at
a morning meeting on April 8 despite knowing that 20 inmatemanufactured weapons had been found and there was “continuing
unrest” between the Northerners and Southerners.
unlock plan was to release all inmates -- including Northerners
and Southerners -- one tier at a time in building 1 so that
staff could observe the inmates’ interaction before
reintegrating them onto the yard.
Acuna and Baber decided not to follow the unlock plan and
instead ordered the Northerners to be released directly onto the
yard before the yard sergeant had “cleared” and “called” the
yard, which allowed the Southerners to remain on the yard.
Bunnell saw that his unlock plan was not being followed, he did
not take action to prevent the fight, such as “recalling the
yard,” “putting the yard down” (i.e., stopping the release and
ordering inmates to get down on the ground), or “stopping the
When Bunnell saw the Southerners moving toward the
Northerners on the yard, a prison official remarked to Bunnell,
“‘you want to put the yard down, right?”
“‘No, not yet.’”
Approximately 33 seconds after Bunnell decided
not to put the yard down, the Southerners began running toward
the Northerners and the fight began.
According to O’Dea’s expert witness Michael Yarborough -- a
27-year veteran and warden of the former California Department
of Corrections -- Bunnell’s decisions on the day of the fight
were “extremely reckless” and created a “foreseeable risk of
harm to staff and inmates.”
Acuna and Baber’s decisions made
the fight likely to occur.
O’Dea also produced evidence which he claimed impugned
Bunnell’s credibility and showed that Bunnell was “beholden” to
Based on his evidence, O’Dea sued Bunnell, Acuna, and Baber
under the federal Civil Rights Act of 1871 (42 U.S.C. § 1983
(section 1983)) claiming they deprived him of his liberty
interests under the due process clause.
The trial court
excluded portions of O’Dea’s evidence, granted summary judgment
in favor of defendants, and dismissed the case.
judgment, O’Dea filed a timely notice of appeal.
On appeal, O’Dea contends the trial court erred in granting
summary judgment in favor of defendants because he created a
triable issue of fact that Bunnell, Acuna, and Baber violated
his right to due process when they “acted affirmatively to
create a foreseeable danger in reckless disregard for [his]
He also contends the court abused its
discretion in excluding portions of his evidence.
As we will explain, O’Dea’s first contention fails because
even if O’Dea’s allegations against defendants are true,
defendants did not restrain O’Dea’s ability to act on his own
behalf -- the gravamen of a substantive due process claim based
on the deprivation of a plaintiff’s liberty interests.
therefore do not need to address his second contention regarding
the court’s alleged error in excluding his evidence.
Section 1983 allows individuals to sue state actors for
violating their federal constitutional or statutory rights.
(Parratt v. Taylor (1981) 451 U.S. 527, 535 [68 L.Ed.2d 420,
428], overruled in part on other grounds in Daniels v. Williams
(1986) 474 U.S. 327, 330-331 [88 L.Ed.2d 662, 668].)
1983 “‘is not itself a source of substantive rights,’ but merely
provides ‘a method for vindicating federal rights elsewhere
(Graham v. Connor (1989) 490 U.S. 386, 393-394
[104 L.Ed.2d 443, 453-454].)
One of the constitutional rights cognizable under section
1983 is the right to liberty guaranteed by the due process
clause of the Fourteenth Amendment.1
(See, e.g., Youngberg v.
Romeo (1982) 457 U.S. 307, 309, 319 [73 L.Ed.2d 28, 32, 39].)
For purposes of an action for damages under section 1983, the
deprivation of liberty triggering the protections of the due
process clause “is the State’s affirmative act of restraining
the individual’s freedom to act on his own behalf--through
The due process clause prohibits a state from “depriv[ing]
any person of life, liberty, or property, without due process of
law.” (U.S. Const., 14th Amend., § 1.)
incarceration, institutionalization, or other similar restraint
of personal liberty.”
(DeShaney v. Winnebago Soc. Serv. (1989)
489 U.S. 189, 200 [103 L.Ed.2d 249, 262] (DeShaney).)
It is on
this alleged restraint of liberty that O’Dea bases his section
A claim similar to O’Dea’s was rejected over 20 years ago
in a case brought by prison guards and their heirs against a
prison director and assistant warden, where the guards had been
injured and/or killed by inmates during a prison riot.
v. Rowe (7th Cir. 1986) 791 F.2d 507, 509 (Walker).)
alleged that prison officials knew the inmates were making
weapons but did not conduct enough random cell searches and did
not “‘immediately accept’” the request by the guards’ union
for more cell searches; the assistant warden allowed the prison
to operate normally instead of on lockdown even though he should
have known the prison was “tense”; and the assistant warden “did
not immediately issue shotguns to the tactical squad and order
it to quell the disturbance” upon “learn[ing] that a riot was in
(Id. at p. 509.)
Based on these allegations, a jury
found in favor of the prison guards and their heirs.
Judge Easterbrook, writing the court’s unanimous opinion,
reversed the judgments, concluded that although the actions of
the prison officials “arguably increased the danger to which the
guards were exposed,” they did not violate the Constitution.
(Walker, supra, 791 F.2d at pp. 507, 509.)
conclusion turned on the fact that “[t]he defendants did not
kill or injure the guards; prisoners did, and this makes all the
(Id. at p. 509.)
The due process clause “does not
require the state to guarantee life, liberty, or property
against invasion by private actors; it requires only that the
state not act, unless with due process, when life, liberty, or
property are in the balance.”
(Walker, at p. 509.)
In closing, Judge Easterbrook explained why the court’s
conclusion did not run afoul of the rule “that the state must
protect prisoners and others in its charge.”
791 F.2d at p. 511.)
That rule is based on “the principle that
‘[i]f the state puts a man in a position of danger from private
persons and then fails to protect him . . . it is as much an
active tortfeasor as if it had thrown him into a snake pit.’”
(Id., citing Bowers v. DeVito (7th Cir. 1982) 686 F.2d 616,
Here, however, “the state did not draft its guards; they
enlisted, on terms they found satisfactory, and they were free
to quit whenever they pleased.
The state must protect those it
throws into snake pits, but the state need not guarantee that
volunteer snake charmers will not be bitten.
It may not throw
Daniel into the lions’ den, but if Daniel chooses to be a lion
tamer in the state’s circus, the state need not separate Daniel
from his charges with an impenetrable shield.”
(Walker, at p.
Walker is similar in material respects to O’Dea’s case.
O’Dea was injured while quelling a prison fight and now seeks to
hold prison officials liable under the due process clause
because he believes they were “extremely reckless,” created a
“foreseeable risk of harm to staff and inmates,” and made the
fight likely to occur.
Regardless of whether O’Dea’s allegations are true, the
defendants did not injure O’Dea and did not restrain his ability
As O’Dea himself admits, he voluntarily enlisted with
the former Department of Corrections six years before his
career-ending injury, and he was equipped with pepper spray and
a baton that he used to subdue the inmates and quell the fight.
As in Walker, while the acts of the prison officials arguably
increased the danger to which O’Dea was exposed, the due process
clause simply does not protect O’Dea from Bunnell’s, Acuna’s,
and Baber’s acts in this situation.
O’Dea nevertheless contends his claim is not foreclosed by
Walker, relying on a line of cases postdating Walker, beginning
with the United State Supreme Court’s decision in DeShaney.
we will explain, consistent with Walker, the cases O’Dea cites
do not assist him because defendants did not restrain O’Dea’s
freedom to act on his own behalf, a necessary component of a
section 1983 claim premised on a plaintiff’s alleged deprivation
of liberty under the substantive component of the due process
In DeShaney, the Supreme Court refused to find a due
process violation where a county’s department of social services
failed to adequately protect four-year-old Joshua from a violent
beating by his father that left the boy severely brain damaged.
(DeShaney, supra, 489 U.S. at pp. 191, 193 [103 L.Ed.2d at pp.
Despite previous suspicious injuries for which
Joshua repeatedly had to be hospitalized and the department’s
decision to place him back with the father after it had removed
him once, the Supreme Court held “[a]s a general matter . . . a
State’s failure to protect an individual against private
violence simply does not constitute a violation of the Due
(Id. at pp. 192-193, 197 [103 L.Ed.2d at pp.
The Supreme Court also rejected Joshua’s argument that a
“‘special relationship’” existed between him and the state
simply because the department knew that he faced the danger of
abuse and intended to protect him from that danger.
supra, 489 U.S. at pp. 197-198 [103 L.Ed.2d at p. 260].)
Court explained that the cases in which it had found a special
relationship stood “only for the proposition that when the State
takes a person into its custody and holds him there against his
will, the Constitution imposes upon it a corresponding duty to
assume some responsibility for his safety and general wellbeing.”
(Id. at pp. 199-200 [103 L.Ed.2d at pp. 261-262],
citing Estelle v. Gamble (1976) 429 U.S. 97, 103-104 [50 L.Ed.2d
251, 259-260]2 and Youngberg v. Romeo, supra, 457 U.S. at p. 310
[73 L.Ed.2d at p. 38]3.)
Central to the Court’s holding in DeShaney was the
“In the substantive due process analysis,
it is the State’s affirmative act of restraining the
individual’s freedom to act on his own behalf -- through
In Estelle v. Gamble, a prisoner filed a section 1983 claim
against the prison’s medical director/chief medical officer and
other prison officials alleging they subjected him to cruel and
unusual punishment in violation of the Eighth Amendment based on
lack of adequate treatment after he was injured while working in
prison. (Estelle v. Gamble, supra, 429 U.S. at pp. 98, 101 [50
L.Ed.2d at pp. 256, 258].) In allowing the suit against the
medical director/chief medical officer to go forward and
remanding the matter to consider whether a cause of action had
been stated against the other prison officials, the Supreme
Court explained that the government must provide medical care to
those whom it punishes by incarceration as they have been
deprived of their liberty to care for themselves. (Id. at pp.
98, 103-104, 108 [50 L.Ed.2d at pp. 256, 259-260, 262].) The
Court “conclude[d] that deliberate indifference to serious
medical needs of prisoners constitutes the ‘unnecessary and
wanton infliction of pain,’ [citation], proscribed by the Eighth
Amendment.” (Gamble, at p. 104 [50 L.Ed.2d at p. 260].)
In Youngberg, a mentally retarded man filed a section 1983
claim against three administrators of the state institution to
which he was committed alleging the administrators knew or
should have known he had been injured at least 63 times, they
failed to institute appropriate preventative procedures, they
failed to provide him with appropriate treatment or programs,
and they routinely restrained him for prolonged periods.
(Youngberg v. Romeo, supra, 457 U.S. at pp. 309-311 [73 L.Ed.2d
at pp. 32-34].) The Supreme Court, “consider[ing]  for the
first time the substantive rights of involuntarily committed
mentally retarded persons under the Fourteenth Amendment,”
concluded that their “liberty interests require the State to
provide minimally adequate or reasonable training to ensure
safety and freedom from undue restraint.” (Youngberg, at pp.
314, 319 [73 L.Ed.2d at pp. 36, 39].)
incarceration, institutionalization, or other similar restraint
of personal liberty--which is the ‘deprivation of liberty’
triggering the protections of the Due Process Clause, not its
failure to act to protect his liberty interests against harms
inflicted by other means.”
(DeShaney, supra, 489 U.S. at p. 200
[103 L.Ed.2d at p. 262].)
Following this reasoning, the Supreme Court concluded “the
State had no constitutional duty to protect Joshua.”
supra, 489 U.S. at p. 201 [103 L.Ed.2d at p. 263].)
injured while he was in his father’s custody, and even though
the department had taken Joshua from his father at one point,
the state “placed him in no worse position than that in which he
would have been had it not acted at all.”
at p. 262].)
(Ibid. [103 L.Ed.2d
In reaching its conclusion, the Court observed
that “While the State may have been aware of the dangers that
Joshua faced in the free world, it played no part in their
creation, nor did it do anything to render him any more
vulnerable to them.”
Seizing on this observation in DeShaney, other courts,
including the Ninth Circuit, have developed what they view as
two exceptions to DeShaney’s general rule that the state’s
failure to protect an individual against private violence does
not rise to a constitutional violation under the due process
(See, e.g., L.W. v. Grubbs (9th Cir. 1992) 974 F.2d
119, 120-121 (Grubbs I); Uhlrig v. Harder (10th Cir. 1995) 64
F.3d 567, 572; Kathleen R. v. City of Livermore (2001) 87
Cal.App.4th 684, 699.)
The first is “the ‘special relationship’
exception, stemming from a custodial relationship between the
state and the victim,” and the second is “the ‘danger creation’
exception, stemming from ‘affirmative conduct on the part of the
state in placing the plaintiff in danger.’”
(Kennedy v. City of
Ridgefield (9th Cir. 2006) 439 F.3d 1055, 1070 (dis. opn. of
Bybee, J.) (Kennedy).)
which O’Dea relies.4
It is the danger-creation exception on
As we will explain, the mischief that has
resulted from indiscriminate application of selected language
from cases discussing the danger-creation exception has provided
unnecessary fodder for O’Dea to advance his untenable due
To support his position that the danger-creation exception
applies, O’Dea cites a number of cases from the Ninth Circuit
that have allowed plaintiffs to go forward with claims against
state actors “for their roles in creating or exposing
individuals to danger they otherwise would not have faced.”
(Kennedy, supra, 439 F.3d at p. 1062.)
These cases include Wood
v. Ostrander (9th Cir. 1989) 879 F.2d 583, 586) [state trooper
arrested drunk driver, impounded the car, and left the passenger
by the side of the road in the middle of the night in a highcrime area where she was picked up by a stranger and raped];
Grubbs I, supra, 974 F.2d at pages 120-121 [supervisors at a
custodial institution assigned a high-risk sex offender to work
The United States Supreme Court “has yet to recognize the
state-created danger doctrine.” (Kennedy, supra, 439 F.3d at
p. 1074 (dis. opn. of Bybee, J.).)
with plaintiff nurse alone in the institution’s medical clinic
where he raped her, even though the nurse had been informed she
would not be left alone with violent offenders]; L.W. v. Grubbs
(9th Cir. 1996) 92 F.3d 894 (Grubbs II) [same facts as Grubbs
I]; Penilla v. City of Huntington Park (9th Cir. 1997) 115 F.3d
707, 708 [police officers responded to a 911 call regarding a
seriously ill man on the porch, found him to be in grave need of
medical care, canceled the request for paramedics, broke into
his house, moved him inside, locked the door, and left; the man
was found dead the next day]; Munger v. City of Glasgow Police
Dept. (9th Cir. 2000) 227 F.3d 1082, 1084-1085 [police ejected a
drunk man from a bar late at night into subfreezing temperatures
wearing only jeans and a T-shirt and prevented him from driving
or reentering the bar where he had left his coat; the man died
of hypothermia]; and Kennedy, supra, 439 F.3d at pages 1057-1058
[plaintiff reported to police that a neighborhood boy molested
her daughter, an officer assured her he would provide advance
notice of any police contact with the boy’s family, police
failed to do so until after the contact was made but then told
plaintiff he would patrol the neighborhood; in reliance,
plaintiff stayed the night at her house and early in the morning
the boy shot plaintiff and her husband while they were asleep].
Using language from these cases, O’Dea argues that
defendants can be held liable here.
Specifically, he points to
a passage from Kennedy declaring that “state actors may be held
liable ‘where they affirmatively place an individual in danger,’
Munger, [supra,] 227 F.3d at 1086, by acting with ‘deliberate
indifference to [a] known or obvious danger in subjecting the
plaintiff to it,’ [Grubbs II, supra], 92 F.3d [at p.] 900.”
(Kennedy, supra, 439 F.3d at p. 1062.)
We cannot agree with a narrow reading of these cases that
imposes liability under the due process clause for a statecreated danger simply because the state actor affirmatively
placed the plaintiff in danger with deliberate indifference to a
known or obvious danger.
In our view, such a reading overlooks
the gravamen of a substantive due process claim based on the
deprivation of a plaintiff’s liberty interests.5
As DeShaney teaches, the gravamen of a section 1983 claim
based on the substantive component of the due process clause is
“the ‘deprivation of liberty’” resulting from “the State’s
affirmative act of restraining the individual’s freedom to act
on his own behalf.”
L.Ed.2d at p. 262].)
(DeShaney, supra, 489 U.S. at p. 200 [103
This requires both state action and a
This is not to say all cases which we have examined can be
read as O’Dea suggests. We have come across two which suggest
that restraining an individual’s ability to act is a necessary
component of a section 1983 claim based on the substantive due
process clause. (See Russell v. Gregoire (9th Cir. 1997) 124
F.3d 1079, 1093, fn. 10 [“a state has no general duty to protect
individuals against potential harm by third parties, [citation],
unless the state creates the danger and removes the individual’s
ability to protect himself [citation]” (italics added) and
Weissich v. County of Marin (1990) 224 Cal.App.3d 1069, 10841085 [“the State’s failure to prevent harm inflicted by a
private actor does not give rise to a cause of action under
section 1983, with one possible exception, i.e., when the State
has physically limited the victim’s ability to act on his own
behalf to protect himself and has left him in a worse position
than before the State acted”] (italics added).)
restraint on the individual’s freedom to act for a cognizable
claim under section 1983.
Put into this perspective, the
danger-creation exception is just another way of discussing the
requisite component of state action but does not dispense with
the requirement that the state action restrain the individual’s
freedom to act.
Therefore, regardless of whether a case can be
said to fall under the special relationship exception or the
danger-creation exception, if the state has not deprived the
plaintiff of liberty by restraining his individual freedom to
act on his own behalf, the plaintiff simply does not have a
cause of action under section 1983 under either exception.
Viewed in this light, the outcome of at least some of the
Ninth Circuit cases O’Dea has cited arguably can be justified
because state action restrained the individuals’ freedom to act
on their own behalf.
These include liability for the state
trooper in Wood for stranding the passenger at the side of the
road in the middle of the night in a high-crime area,
effectively curtailing her ability to get home safely; the
police officer in Penilla for removing the serious ill man from
his porch and locking him in his house, thereby depriving him of
his ability to summon neighbors or passersbys; and the police
officers in Munger for ejecting a bar patron into subfreezing
temperatures and preventing him from driving or reentering the
In contrast to these cases, there was no state action in
O’Dea’s case that restrained him from acting on his own behalf.
Even if Bunnell, Acuna, and Baber orchestrated the fight, they
did not restrain O’Dea from defending himself as he was equipped
with pepper spray and a baton that he used to subdue the inmates
and quell the fight.
As the Supreme Court has warned, “‘we must
never forget; that it is a constitution we are expounding’” and
our Constitution “deals with the large concerns of the governors
and the governed, but it does not purport to supplant
traditional tort law in laying down rules of conduct to regulate
liability for injuries that attend living together in society.
We have previously rejected reasoning that ‘“would make of the
Fourteenth Amendment a font of tort law to be superimposed upon
whatever systems may already be administered by the States.”’”
(Daniels v. Williams, supra, 474 U.S. at p. 332 [88 L.Ed.2d at
O’Dea’s due process claim therefore could not survive
summary judgment, and the trial court correctly entered judgment
in favor of defendants.
The judgment is affirmed.
costs on appeal.
Defendants shall recover their
(Cal. Rules of Court, rule 8.276(a)(1).)