Negligence Overview

In addition to (or as an alternative to) raising civil rights claims under federal law, plaintiffs in civil rights cases can sometimes assert related claims for negligence under California law. When the defendant is a government employee or government agency, there can be both advantages and complications to raising such claims.

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The idea of negligence as alleged against an individual state actor has the same structure as in a claim against a private actor, requiring a showing of duty to the plaintiff, breach of that duty by the defendant, and causation of harm.

The initial existence of a duty may be a tricky factor in some situations where the nature of the state action is merely a failure to take some action because, as discussed elsewhere, state actors do not necessarily have a duty to ensure the safety of members of the public except in certain scenarios. But state actors do have a duty to use reasonable care in the way they perform their jobs. See, e.g., Munoz v. Olin, 24 Cal.3d 629, 634 (1979) (reasonable care required in the use of force). So when the state actor’s own actions are what causes a harm, there is the potential for a negligence cause of action. See Cal. Gov. Code, § 820 (“a public employee is liable for injury caused by his act or omission to the same extent as a private person“). In the context of excessive force claims, a state-law cause of action of negligence can be a useful component of a plaintiff’s case because the factors that are evaluated in determining negligence under California law are broader than the factors considered under the Fourth Amendment. Hayes v. Cnty. of San Diego, 57 Cal. 4th 622, 639 (2013).

Tricky questions can exist about whether a state actor’s acts were within the course and scope of their government employment.

As with any cause of action brought against a government defendant under California law, a claim for negligence must be presented to the relevant agency via a government tort claim and “exhausted” via the initial denial of that claim.

Assuming that occurs, it is then necessary to navigate statutory immunities. Government employees have discretionary immunity under California Government Code § 820.2. The idea of this immunity is that if an employee has discretion to perform a range of actions as part of his or her employment, then the selection of one of those options does not create liability, even if the employee is mistaken in their judgment. However, this immunity has been fairly narrowly construed, and obviously a public employee does not have “discretion” to, say, violate the federal Constitution, so this immunity may be of limited use to defendants in civil rights cases. See, e.g., Barner v. Leeds, 24 Cal.4th 676, 685 (2000). In a similar vein, Government Code § 820.4 creates an immunity for law enforcement officers who act while “exercising due care,” but the premise of a negligence claim is that such care was not exercised.

Vicarious liability for government employers based on the negligence of their employees will exist in some, but not all, situations under California Government Code § 815.2. Section 815.2 is an exception to the broad language of Government Code section 815, which states that “[e]xcept as otherwise provided by statute: (a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.” Section 815.2, in turn, says 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” except “where the employee is immune from liability.”

Vicarious liability for employers does not exist when injuries to prisoners are based on employee negligence, with certain exceptions. Government Code § 844.6. See Lawson v. Superior Court, 180 Cal. App. 4th 1372, 1383 (2010). The exception that section 844.6 explicitly calls out is the failure to render emergency medical aid under section 845.6 if a situation where an inmate “is in need of immediate medical care and [the employee] fails to take reasonable action to summon such medical care.”

Negligent Hiring/Training/Supervision of employees can also give rise to liability for government employers in a manner that has parallels to a cause of action in federal law under Monell v. Department of Soc. Svcs., 436 U.S. 658 (1978). But California "does not recognize a general duty of care on the part of supervisors with respect to negligent hiring, retention, or training." Estate of Osuna v. County of Stanislaus, 392 F. Supp. 3d 1162, 1182 (E.D. Cal. 2019). So this type of claim is limited to specific situations. School districts, the California Supreme Court has held, may be held liable for negligent hiring because of the “special relationship” between schools and their students. C.A. v. William S. Hart Union High School Dist., 53 Cal.4th 861, 865-866 (2012). But in the same case the California Supreme Court stated: “Absent such a special relationship, there can be no individual liability to third parties for negligent hiring, retention or supervision of a fellow employee, and hence no vicarious liability under section 815.2.” 53 Cal.4th at 877.

This focus on the existence of a “special relationship” also suggests that jail and inmates may be able to assert such claims based on the special relationship that is understood to exist for individuals in custody, but there is also a considerable amount of bad law in this area, making these claims tricky. See Kendrick v. County of San Diego, No. 15-cv-2615-GPC (AGS), 2018 U.S. Dist. LEXIS 42185, 2018 WL 1316618, at *11 (S.D. Cal. Mar. 14, 2018) ("Plaintiff does not allege a special relationship existed between [the decedent] and Sheriff Gore. Therefore, Sheriff Gore cannot be personally liable for a claim of negligent hiring and supervision . . . ."); Fuentes v. City of San Diego, No. 3:16-cv-02871-BEN-JMA, 2017 U.S. Dist. LEXIS 96048, 2017 WL 2670976, at *3 (S.D. Cal. June 20, 2017) (dismissing claim because "Plaintiffs generally allege that the City and/or SDPD have a duty to protect people from harm and exercise care in selection, retention, training, and supervision of their employees. However, these alleged duties do not resemble the enhanced duties imposed on school personnel that formed the basis for their special relationship with the minor plaintiff in William S. Hart.").

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RLUIPA Overview

The Religious Land Use and Institutionalized Persons Act (RLUIPA) is a federal law, 42 U.S.C.S. § 2000cc-1 et seq., that provides substantial protections for the sincere religious practices of incarcerated people. The standard it establishes is that if the government imposes a “substantial burden” on a religious practice, it must have a “compelling” governmental interest for doing so and must use the least restrictive means of advancing that interest. Effectively, RLUIPA creates a form of “strict scrutiny” for substantially burdening the religious practices of the incarcerated.

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That RLUIPA standard that is considerably more favorable to the incarcerated plaintiff than a claim related to religious practices brought under the First Amendment, since First Amendment claims are reviewed under the deferential standard of Turner v. Safley, 487 U.S. 78 (1987) which lets restrictions remain in place as long as they are “reasonably related to a legitimate penological interest.”

But even under RLUIPA, it can be tricky to make out a case. The plaintiff has to meet that “substantial burden” standard, which has been interpreted as meaning the creation of "a significantly great restriction or onus upon such exercise” of religious practice. Warsoldier v. Woodford, 418 F.3d 989, 995 (9th Cir. 2005) (internal quotations omitted). Merely being offensive to a religious belief is not a substantial burden to that belief. Navaho Nation v. U.S. Forest Service, 535 F.3d 1058, 1070 (9th Cir. 2008).

The forms of religious practice that are potentially protected under RLUIPA are fairly broad. The statute defines “religious practice” as "any exercise of religion, whether or not compelled by, or central to, a system of religious belief." § 2000cc-5(7)(A).

Courts are also allowed to consider whether an individual’s commitment to a given religious practice is sincere or is based on “some other motivation.” Holt v. Hobbs, 574 U.S. 352, 361 (2015).

RLUIPA is somewhat unusual, compared to most other civil rights causes of action, in that it only authorizes suits against “a government,” and thus “does not authorize suits against a person in anything other than an official or governmental capacity.” Wood v. Yordy, 753 F.3d 899, 904 (9th Cir. 2014). That is the reverse of the way most civil rights actions are pled, namely against individual actors in their individual capacity. Note, moreover, that this requirement to proceed against “a government” means that a RLUIPA claim brought by an inmate of CDCR (the California state prison system) is very likely to run directly into the Eleventh Amendment if the case is brought in federal court, since suits against an individual correctional officer in his or her official capacity are treated as suits against CDCR itself, and CDCR is protected by the Eleventh Amendment. See, e.g., Holley v. CDCR, 599 F.3d 1108 (9th Cir. 2010). So not only does a RLUIPA claim need to be pled against defendants in their “official capacities,” but if it is being brought against state correctional officers for money damages, it also needs to be asserted in state court in order to avoid that Eleventh Amendment bar. See Williams v. Beltran, 569 F.Supp.2d 1057, 1065 (C.D.Cal. July 30, 2008).

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RLUIPA and Religious-Based Dietary Accommodations for Prisoners

The “centrality” of an incarcerated individual’s religious beliefs about dietary choices should not be second-guessed by courts, as long as those beliefs are sincerely held, the Ninth Circuit concluded this week in Harris v. Cleric Muhammad, 24-3307.

A Noodly Issue: Ramen may or may not be a perfectly “clean” food, but it may nevertheless be part of a sincerely held religious Buddhist belief in a diet that requires eating “clean.”

The appellant in Harris is a Nichiren Buddhist who has a sincere belief in the need to eat “cleanly,” and he had been approved for a halal diet that was an approximation of the “clean” diet he wished to maintain. However, since the halal diet was not always exactly consistent with his dietary needs, Harris also sometimes purchased non-halal food, including ramen that contained processed ingredients, from the prison commissary.

Noting these purchases, which did not seem particularly “clean,” the prison kicked Harris off of the halal diet program, though he asserted that “ramen soups are such a staple in Nichiren Buddhist culture that adherents promulgate, and work, in ramen restaurants.” Harris sued under Religious Land Use and Institutionalized Persons Act (RLUIPA), seeking an injunction. The District Court had concluded that he was unlikely to succeed on the merits.

In a nutshell, the RLUIPA says that if a government practice “substantially burdens” the religious exercise of a prisoner it must both further a “compelling” governmental interest and be the least restrictive means of furthering that interest. The district court concluded that Harris had failed at the outset to show substantial burdening of his religious exercise since the halal diet did not entirely fit with the needs of Nichiren Buddhism anyway, and thus that the exclusion from the halal program did not affect his ability to eat the way he desired.

The Court of Appeal views it differently, stating:

it is for Harris to determine whether being on [the halal diet] satisfies Harris’s Nichiren Buddhist beliefs. And if external forces cause Harris to fall short of the exact dictates of his religion, it is for him and his conscience, not us as courts, to decide what compromises are appropriate.

The Court of appeal agrees that there may be issues in some cases as to whether a given set of beliefs is “sincerely” held, and that, for example, “RLUIPA does not entitle insincere believers in the ‘Church of Surf ‘n’ Turf’ to luxury lobster and steak dinners.” But the analysis of “sincerity” of beliefs is different from the analysis of the “centrality” of those beliefs: the former may be scrutinized by the courts, whereas the latter may not.

The Court of Appeal further notes that it is still an unresolved question in this case whether the prison’s administration of its various dietary programs is the least restrictive means of furthering its compelling interests. Maybe it is, maybe it isn’t: that’s for the District Court to determine on remand. But Harris at least is able to make out the prima facie case of having a sincere religious exercise that is burdened by the prison’s policy prohibiting him from supplementing the halal diet.

Related Post: RLUIPA Overview

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Eighth Amendment Overview - AND LIMITS TO SUCH CLAIMS UNDER THE CALIFORNIA CONSTITUTION

The Eighth Amendment bar on cruel and unusual punishment has a number of applications to prison litigation. (Note that this section of law applies to convicted prisoners, whereas analogous claims from pretrial detainees held in a jail or other setting stem from the Fourteenth Amendment.) Some of the most common types of potentially viable claims under the Eighth Amendment are:

San Quentin prison. Photo by user Zboralski from Wikimedia Commons under a Creative Commons license.

Exposure to Dangerous Physical or Environmental Conditions. Knowingly exposing an inmate to a dangerous physical environment, such as a facility full of asbestos, may constitute deliberate indifference. Wallis v. Baldwin, 70 F.3d 1074, 1075 (9th Cir. 1995). Forcing an inmate to work with equipment that is known to be defective and dangerous, and thereby causing them to become injured, can also satisfy this standard. Morgan v. Morgensen, 465 F.3d 1041 (9th Cir. 2006).

Denial of Exercise and Recreation. Prisoners have a clearly established right to “outdoor exercise or otherwise meaningful opportunities for recreation” and the denial of that right for extended periods of time can constitute an Eighth Amendment violation. Cardenas-Ornelas v. Johnson, 24-6755.

Denial of Medical Care. The total denial of care for serious medical conditions can constitute deliberate indifference. Williams v. Andreasen, No. CIVS042515FCDEFBP, 2008 WL 508073, at *13 (E.D. Cal. Feb. 22, 2008), report and recommendation adopted, No. CIVS042515FCDEFBP, 2008 WL 895684 (E.D. Cal. Mar. 31, 2008). Note that while actually providing medical care to an inmate in a deliberately indifferent fashion can theoretically be the basis for liability, such claims are quite challenging in practice absent really egregious facts.

Failure to Protect from Assault by Other Inmates. A case in which prison officials failed to protect an inmate from assault by fellow inmates, Farmer v. Brennan, 511 U.S. 825 (1994) is often cited as source of the “deliberate indifference” standard itself. Such a failure can occur through not taking action, as well as acting in a way that knowingly exposes an inmate to harm. Clem v. Lomeli, 566 F.3d 1177, 1181-1182 (9th Cir. 2009).

Use of Force in a “Malicious” and “Sadistic” Manner. Whereas claims of “excessive force” are typically brought under the Fourth Amendment by plaintiffs who are not in custody, this type of claim is asserted under the Eighth Amendment in the prison context and requires a showing that the force used was employed “maliciously and sadistically to cause harm” rather than in “a good-faith effort to maintain or restore discipline.” Hudson v. McMIllan, 503 U.S. 1, 6-7 (1992). The requirement that force be used “sadistically” does not require a showing that the officer took pleasure from inflicting pain. Hoard v. Hartman, 904 F.3d 780, 782 (9th Cir. 2018). Nor does it necessarily require a serious injury, though the nature of any injury is relevant to the inquiry: “When prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency always are violated. This is true whether or not significant injury is evident." Bearchild v. Cobban, 947 F.3d 1130, 1141 (9th Cir. 2020) (quotation omitted). The "core judicial inquiry" focuses on whether the forced used was "nontrivial and was applied maliciously and sadistically to cause harm," rather than on the "extent of the injury." Wilkins v. Gaddy, 559 U.S. 34, 39 (2010).

Excessive or Improper Segregation/Separation. The law on conditions in segregation is challenging. There are some relatively good cases on degrading or unhealthful conditions in segregation (see, e.g., Keenan v. Hall, 83 F.3d 1083, 1090 (9th Cir. 1996)), but merely being restrictive is not, in itself, an Eighth Amendment violation. Toussaint v. McCarthy, 801 F.2d 1080, 1106-1107 (9th Cir. 1986).

Claims of Deliberate Indifference in Transportation of an Inmate are challenging to make successfully, as there is SCOTUS authority that a mere car accident is not evidence of deliberate indifference. Parratt v. Taylor, 451 U.S. 527, 544 (1981). There needs to be evidence of additional, specific factors suggesting a subjective decision by correctional officials to ignore apparent risks to the person being transported, such as a refusal to provide a seatbelt to an individual who requests one. See James v. Pelayo, No. 1:25-cv-01399-JLT-SAB (PC) (E.D.Cal. March 5, 2026) 2026 U.S. Dist. LEXIS 45723.

At least in theory, equivalent claims could also exist under Article 1 Section 17 of the California Constitution, which also bars cruel and unusual punishment, but there is no private right of action for damages arising out of a violation of the cruel or unusual punishment clause of the California Constitution. See Giraldo v. Cal. Dep't of Corr. & Rehab., 168 Cal. App. 4th 231, 253 (2008). In other words, even if there is a violation of the law, an individual typically cannot bring an action to enforce the law. The types of claims that would be alleged as Eighth Amendment violations under 42 U.S.C. § 1983 could perhaps be alleged via the statutory “wrapper” of California’s Bane Act. That is so since objective deliberate indifference — which is a less challenging standard than the subjective form of deliberate indifference that must be shown under the Eighth Amendment — will satisfy the specific intent component of a Bane Act cause of action. See Est. of Hernandez v. San Diego County, 24-cv-00032-DMS-DEB at * 25-26 (S.D.Cal. Sept. 30, 2024) (“the Court has determined that the Complaint alleges a claim under the objective deliberate indifference standard. [Citation.] Thus, the Complaint states a Bane Act claim against Defendants”).

The clearest examples of this approach in the caselaw appear to be in the area of denial of medical care. See M.H. County of Alameda, 90 F.Supp.3d 889, 897 (N.D.Cal. April 17, 2013); Dixon v. Partida, 22-cv-04461-AMO (N.D.Cal. Nov. 10, 2025) 2025 U.S. Dist. LEXIS 221762 at * 31-32. It is unclear whether the use of a Bane Act “wrapper” would allow litigation of something like a denial-of-exercise claim purely under California law.

Prisoners' Rights to Exercise and Recreation, and the role of Administrative ExhaUstion in Showing Subjective Knowledge

It has been clearly established law since 2020, a Ninth Circuit panel concluded this week, that prisoners have an Eighth Amendment right to “outdoor exercise or otherwise meaningful opportunities for recreation.” Evidence that a Nevada prisoner was confined to his cell for 23 or 23 and a half hours a day for more than a year raised a triable issue of fact as to whether that right was violated, the appellate court concluded in Cardenas-Ornelas v. Johnson, 24-6755. The fact that the appellant could do in-cell exercise or walk to work was not an adequate substitute for conditions that permitted actual recreation, and the fact that the warden argued that this confinement was a response to COVID-19 did not defeat that conclusion.

Photo by Hédi Benyounes on Unsplash.

The length of the deprivation is important here. In Witkin v. Pittsley, 2:22-cv-1211 WBS CSK P (E.D.Cal. Oct. 1, 2025), a district court concluded that a 60-day suspension of outdoor exercise for an inmate was covered by qualified immunity. 2025 U.S. Dist. LEXIS 194849 at * 9-10.

The damages in this type of case will typically be based on the psychological impact to the prisoner, which is a potentially tricky issue because the Prison Litigation Reform Act normally requires a showing of physical injury in order for a case brought based on emotional damages to be brought. In cases where there has been extensive (i.e., more than six weeks) deprivation of exercise, however, there is precedent (in the Seventh and Ninth Circuits, at least) for the idea that the deprivation in itself is sufficient. Lopez v. Smith, 203 F.3d 1122, 133, fn. 15 (9th Cir. 2000); Delaney v. DeTella, 256 F.3d 679, 685 (7th Cir. 2001).  

Also interesting is the way Cardenas-Ornelas showed the subjective awareness of the defendant warden of the fact that this confinement was occurring and was excessive: namely because the warden personally denied his first-level grievance, and thus was put on notice of the situation. At least in this situation, then, the bureaucratic runaround of administrative exhaustion actually served some purpose in identifying who was responsible for what was happening.

Related Post: Eighth Amendment Overview

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Premises Liability in Jail and Prison Cases

Jails and prisons can be dangerous places, and sometimes it is the facility itself that is dangerous, not simply the people inside it. Facilities can be extremely dirty, leading to infections and sickness, can contain other sorts of environmental hazards, and can have physical conditions that are dangerous, leading to inmate and detainee injuries. As climate change accelerates, the unbearable and largely unmitigated heat of these places in the summertime is also potentially an issue.

A Slippery Situation: Jails and prisons can involve dangerous premises, but litigating these issues requires showing "deliberate indifference," which is more demanding than mere negligence.  Photo by Michael Pointner on Unsplash.

However, premises liability arguments in jail and prison cases, like arguments around medical care in the same places, involve higher burdens than are at issue in the free world. It’s not enough simply to show that a condition was dangerous or that the staff were “negligent”: the standard that must be met is “deliberate indifference,” which is akin to knowing and willful blindness to the existence of a serious problem. (The requirements for meeting this standard under the Eighth Amendment for prisoners are different than those under the Fourteenth Amendment for pretrial detainees being held in jails, at least in the Ninth Circuit. The Eighth Amendment standard requires both a “subjective” and an “objective” showing of deliberate indifference, whereas the Fourteenth Amendment standard is only “objective,” meaning that it can be satisfied if a “reasonable officer” would have recognized the risk to the detainee.)

One of the most basic challenges with these types of cases will consequently be knowing enough information in the first place about who, in particular, at the jail/prison was (or should have been) aware of the dangerous condition, and when they knew (or should have known) about the condition, so that a case can survive an almost inevitable motion to dismiss that will need to be litigated before discovery can start. Bodycamera and surveillance footage may potentially be able to establish these points, but it typically won’t be available until the case reaches discovery. Therefore, in these kinds of cases, the perceptions of witnesses and, even more so, documentation of prior complaints about the dangerous condition are critical for success.

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It's a Trap! For California Inmates, "Administrative Exhaustion" and Presentation of a Tort Claim Are Not the Same Thing

There’s more to litigating prison cases than “exhausting” the prison’s administrative grievance system. In fact, there’s a trap for the unwary built into the process.

Some California inmates know about the need to file a 602 grievance form, and then to completely exhaust the appellate process, in order to go to court related to any sort of incident in prison. That’s a mandatory requirement of the Prison Litigation Reform Act (PLRA) if the person who files the complaint in court is in custody.

What most folks don’t realize is that there is a second, parallel process that should also be going on at the same time that administrative exhaustion is happening: the inmate should also be submitting a government tort claim form. Without submitting that tort claim form, inmates risk being unable to raise causes of action under California law, because rejection of the tort claim is a requirement for asserting such state claims.

The “trap” created by these two different systems is that an inmate may focus on the “exhaustion” piece of the process and burn up precious time, not realizing that they only have six months from the time of the underlying incident (normally) to submit the tort claim.

By the time they’ve “exhausted” their claim, the time to file the tort claim may have run.

Don’t fall for the trap! Get your paperwork going right away. If you need help, get in touch.

Fierro v. Smith: Deference to Prison Officials in Eighth Amendment Claims

A jury should not be instructed on the need to defer to prison officials’ decisions regarding the administration of prisons, in cases raising Eighth Amendment claims, unless the treatment that is at issue (1) was provided pursuant to a security-based policy or practice, and, if so, (2) was a necessary, justified, and non-exaggerated response to security needs. That point is reiterated in the Ninth Circuit’s opinion in Fierro v. Smith (19-16786), filed yesterday, where Arizona prison officials repeatedly disregarded an inmate’s request to be put in protective custody before the inmate was attacked by gang members. Fierro brought a claim under 42 U.S.C. § 1983 against the correctional officers who failed to respond to his requests to be housed safely.

In Fierro, the Ninth Circuit concluded, there were genuine factual disputes as to both of the two prongs of the analysis, and the jury should therefore have been given, at most, an instruction saying it was their choice whether to defer to prison officials’ judgment. In a footnote, the Ninth Circuit panel points out that even a “jury’s choice”-type instruction “could risk confusion without much added benefit,” which seems like a charitable way of putting it.