Federer v. County of Sacramento

California Court of Appeal Mar 3, 1983 No. Civ. 21377Published

Before: Puglia

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Holding. A county is not liable under 42 U.S.C. section 1983 for the negligent acts of its employees unless those acts implement or execute an officially adopted policy or regulation.

Issues

Whether a county is liable under 42 U.S.C. section 1983 for the negligent acts of its employees that are contrary to official policy.

Disposition. affirmed

Quotations verified verbatim against the opinion

“a county is not liable under this section unless the activity alleged to cause an unconstitutional deprivation implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers.”

“It is clear that the doctrine of respondeat superior has no application in suits such as this; a governmental entity is not liable solely because it employs a tortfeasor”

Opinion

PUGLIA, P. J.

Plaintiffs appeal from an order sustaining without leave to amend the demurrer of defendant Sacramento County to the first amended complaint. In addition to the county, the first amended complaint names as defendants Sheriff Duane Lowe and six fictitious defendants, four of whom are alleged to be deputy sheriffs.

As it appears that no judgment of dismissal was entered and the parties treat the appeal as properly before us, we shall obviate unnecessary prolongation of these proceedings by deeming the order sustaining demurrer to incorporate a judgment of dismissal and interpreting plaintiffs’ notice of appeal as applying to such dismissal.

(Bellah

Greenson

(1978) 81 Cal.App.3d 614, 618, fn. 1 [146 Cal.Rptr. 535, 17 A.L.R.4th 1118].)

On appeal, plaintiffs argue the legal sufficiency of the first amended complaint to which the demurrer was sustained. No contention is made that the trial court abused discretion in denying leave to amend. Since we find the complaint insufficient as a matter of law, we shall affirm the judgment of dismissal.

[186]

The first amended complaint alleges that plaintiffs are the children of Kenneth Federer who was killed by escapees from a Sacramento County jail on December 17, 1970, after defendant’s employees negligently left a jail door open and allowed the escapees, two violence-prone inmates, to abscond. The theory of liability is premised on 42 United States Code section 1983, which provides: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, 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.

Although counties are included among those “persons” to whom 42 United States Code section 1983 applies

Federer v. County of Sacramento

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PUGLIA, P. J.

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