May 2013 Prison Break

Prison Break Correctional Liability Update May 2013 Housing Gang Members Together: Can a Blood and a Crip Just Get Along? By Susan E. Coleman Inmates who are assaulted by other inmates, whether cell mates, co- workers, or inmates on the yard, often sue prison administrators for failing to protect them. After all, the Eighth Amendment has been interpreted by the courts to include a duty to protect prisoners. However, a vague risk of harm simply because prisons are violent places which house dangerous criminals is not enough to create liability; something more specific is required. In the case of Labatad v. Corrections Corporation of America, et al, decided on May 1, 2013, the Ninth Circuit found that even housing rival gang members together was insufficient under the circumstances to find that defendants were deliberately indifferent. Labatad, a State of Hawaii inmate incarcerated at the Saguaro Correctional Center, operated by the Corrections Corporation of America Susan E. (“CCA”), was assaulted by his cellmate in July 2009. Naturally, Labatad Coleman is sued CCA for failing to protect him, alleging deliberate indifference to a partner at his safety under the Eighth Amendment. Because Labatad’s assailant the law firm was a member of a rival prison gang, this suit might at first blush seem of Burke, to have some merit, in that prison officials should be aware of Williams & longstanding prison gang rivalries. For example, in California it would Sorensen, be highly unusual to house a Black Guerrilla Family associate with a where she Mexican Mafia affiliate, and some would argue that a violent specializes confrontation would be foreseeable. in law enforcement defense, including Saguaro Correctional Center tracks inmates’ gang affiliations, but does correctional litigation. Ms. not have a policy of separating rival gang members in cell assignments. Coleman has 18 years of Instead, gang affiliation is one of many factors used in the facility’s litigation experience. She is an case-by-case evaluations to make cell assignments. associate of the American Board of Trial Advocates In this case, Labatad (a member of the La Familia gang) had a fight (ABOTA) with over 20 civil jury with inmate Giddeons (a member of the United Samoan Organization trials throughout California. (“USO”) Family gang) on July 23, 2009. The fight did not produce email: [email protected] direct: 213.236.2831 serious injuries, and both inmates reported that they were not enemies afterward. During the investigation, prison officials placed both inmates in administrative segregation. In segregation, Labatad was assigned to share a cell with Mara, another member of the USO Family gang. Labatad and Mara had been on the same general population yard previously without incident, and they were not identified as enemies. Three days later, just after Labatad was placed in cuffs to be brought to the yard, Mara assaulted Labatad, punching him in the head and back. Mara told investigators he assaulted Labatad because he was a La Familia member. Labatad sued CCA and various prison officials, arguing that the policy allowing rival gang members was per se unconstitutional, and that defendants were deliberately indifferent to his safety. The district court granted summary judgment to defendants. The district court found that May 2013 Prison Break Page 1 Burke, Williams & Sorensen, Saguaro’s policy of permitting members of different gangs to be housed LLP offers the expertise, together was not in itself a per se Eighth Amendment violation. Due to depth, breadth, and quality the number of gang members housed in prison, and the high service you need in the area representation of certain gangs, the Seventh Circuit has noted that it of Correctional Litigation would place an unmanageable burden on prison administrators if they through the specialized were required to separate inmates by gangs. Further, some inmates knowledge of our featured deny their gang affiliation and/or are affiliated but not validated, making attorneys. identification sometimes a difficult task for administrators. The Ninth Circuit upheld the district court’s order granting summary judgment. It held that there was no evidence that defendants knew of facts supporting an inference of a substantial risk of harm to Labatad if he were placed in a cell with Mara, and no evidence that they drew the inference. The Court also upheld the district court’s decision to disregard the affidavits of four inmates about other violent incidents between members of the La Familia and USO Family gangs, on the grounds the affiants did not have personal knowledge of the events described. Further, although Labatad claimed he told a Saguaro officer he should not be housed with Mara, he provided no additional details about whom he spoke to or what he said, so the court declined to infer that defendants were actually aware of a risk. This decision is favorable for prison administrators. With any luck, it signals a potential strengthening of the already existing requirements under caselaw for plaintiff-inmates to prove that administrators actually knew the inmate was at risk of harm, in order to proceed to trial. However, prison officials should continue protective measures, such as having potential cellmates agree to the assignment and sign a “marriage chrono” [CDC Form 1882-B], whenever possible in order to document that the institution was considerate of both inmates’ safety concerns. Mitch Show Me the Money! And Don't Forget the Wrosch is an associate Receipts at Burke. By Mitch Wrosch He has four years of On April 30, 2013, the California Court of Appeal for the Second specialized Appellate District issued a defendant-friendly decision in Corenbaum v. experience Lampkin, a case regarding the scope of damages available to plaintiffs in in personal injury lawsuits. In sum, the ruling limits the evidence of correctional damages that a plaintiff can introduce at trial to the amount of medical litigation, with two civil jury bills that have actually been paid, and prohibits introducing evidence of trials. the full amount of medical expenses billed or that have not yet been email: [email protected] paid. direct: 213.236.2814 The decision in Corenbaum v. Lampkin comes in response to the 2011 California Supreme Court decision of Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541. In Howell, the Court held that “an injured plaintiff whose medical expenses are paid by private insurance can recover damages for past medical expenses in an amount no greater than the amount that the plaintiff’s medical providers, pursuant to prior agreement, accepted as full payment or, to the extent that payment is still owing, the amount that the medical providers had agreed to accept as full payment for the services provided.” The Howell decision attempted to reconcile the fact that the actual amount of medical expenses billed are rarely paid, or a percentage is paid after negotiation for reduction of a lien, and it is therefore unfair for plaintiffs May 2013 Prison Break Page 2 to introduce these inflated numbers as their actual costs at trial. However, the ruling was unclear as to whether evidence of billed but unpaid expenses could be admissible to assess non-economic damages, such as pain and suffering, or to estimate future medical expenses. Corebaum provides clarity as to these issues. In Corenbaum, the plaintiffs were injured when a vehicle driven by Lampkin collided with a taxicab in which they were passengers. After a jury trial, a jury found the two plaintiffs deserved $1.8 million and $1.4 million respectively in compensatory damages. Lampkin appealed, and contended in part that the court erred by admitting evidence of the full amounts billed for plaintiffs’ medical care, rather than the amounts actually paid and accepted as full payment by plaintiffs’ medical providers. The Court of Appeals agreed and reiterated the Howell rule that previously incurred medical expenses will be valued at the amount actually paid, not the amount billed but unpaid. Crucially, the Court held that the total amount billed is not even admissible in court (unless it was paid). As for future medical expenses, the Court held that the amount billed for past medical services is irrelevant and inadmissible when determining the value of future medical services. What is relevant is what has actually been paid and what will likely be paid. This decision is particularly helpful in defending medical and personal injury cases filed by plaintiffs. While plaintiffs may argue that they incurred thousands, or even hundreds of thousands, of dollars in medical expenses, they should not be able to introduce evidence of these bills at trial unless they actually paid them. However, the court did not address whether inmate-plaintiffs, whose bills are paid by the State, US Government, county, or other entities, may seek recovery of medical bills when they did not personally pay the bills (or pay for the insurance which then paid the bills). In terms of fairness, inmates should only be able to recover their $5 co-payments (if actually paid), and not the value of the medical bills paid on their behalf by the incarcerating entity, but it remains to be seen whether this is the state of the law. Corenbaum will certainly end up before the California Supreme Court. Hopefully, the Court will uphold the decision, which is based upon common sense and fairness, and provide more clarity about the extent of this decision. Ulysses A Scorching Consequence of Realignment Aguayo is an associate Legislation at Burke, By Ulysses Aguayo Williams & Sorensen, What would happen if California, a state plagued with some of the worst where he fire seasons in the country, lost the ability to employ more than 4,000 works in fire fighters? The above describes a real issue that the state is currently correctional grappling with.

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