In Glenn Towery v. State of California, former inmate Glenn Towery sued the State of California and the California Department of Corrections and Rehabilitation (collectively referred to as the “State”) after he contracted coccidioidomycosis (commonly known as “Valley Fever”) while incarcerated in Kern Valley State Prison.

Towery alleged that the State intentionally chose to take no action to protect African-American inmates against Valley Fever despite knowing that they are at disproportionate risk of contracting the more serious (disseminated) form of the disease.  Towery claimed that the State‘s alleged intentional course of conduct occurred “in connection with a well-documented history [of] race-based policymaking and discrimination….”

Towery brought different federal and state causes of action including premises liability, negligence, and Eighth Amendment deliberate indifference claims.  The only claim which survived past the initial pleading stage against the State was his claim under the Bane Act (Civ. Code § 52.1).  The Bane Act, which was originally enacted to combat hate crimes, has been applied more broadly and creates a claim for an individual whose constitutional rights have been violated by way of threat, intimidation, or coercion.  Even though the State asserted that there were no facts showing threats, intimidation, or coercion, the trial court found that Towery’s bald allegations were sufficient to state a claim.

The State then filed a Motion for Judgment on the Pleadings, on the grounds that the State is immune from liability under Government Code section 844.6, which states that a public entity is not liable for “[a]n injury to any prisoner.”  The State asserted that the Bane Act does not create any exception to this rule.  The trial Court agreed and dismissed Towery’s case.

On August 10, 2017, in a published decision, the California Court of Appeal affirmed that inmates cannot bring Bane Act claims against the State.

Although Towery argued that the legislative history of Government Code 844.6 indicated that it was only intended to provide immunity for ordinary torts such as wrongful death and not alleged hate crimes under the Bane Act, the Court of Appeals found this argument unconvincing.  The Court of Appeal held that if the Legislature had intended such an exclusion, it could have explicitly said so when enacting the Bane Act, either by including such a provision in that act or by amending Government Code section 844.6 to list the exception.

Therefore, although an inmate can bring a Bane Act claim against individuals (such as correctional officers and medical personnel), he cannot bring a claim directly against the State or any public entity.  The plain language of Government Code 844.6 provides the government immunity from claims by inmates who claim they are injured, including Bane Act claims.

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