Dugard v. United States

835 F.3d 915

Jaycee Dugard, individually, and as Guardian Ad Litem, for her Minor Child, Plaintiff–Appellant,

v.United States of America, Defendant–Appellee.

No. 13–17596

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 12, 2016 Pasadena, California

Filed August 26, 2016

Jonathan P. Steinsapir (argued), Dale F. Kinsella, Amber Holley Melius, and David W. Swift, Kinsella Weitzman Iser Kump & Aldisert, LLP, Santa Monica, California, for Plaintiff–Appellant.

Patrick G. Nemeroff (argued) and Mark B. Stern, Attorneys, Appellate Staff, Civil Division, Department of Justice, Washington, D.C., for Defendant–Appellee.

Before: Richard R. Clifton and John B. Owens, Circuit Judges, and William E. Smith,^** Chief District Judge.

Dissent by Judge Smith

OPINION

OWENS, Circuit Judge:

Phillip Garrido, a parolee with a terrible history of drug-fueled sexual violence, committed unspeakable crimes against Jaycee Dugard for 18 years. State and federal authorities missed many opportunities to stop these tragic events. Ms. Dugard received a large cash settlement from the State of California for its incompetence, and seeks similar compensation from the Federal Government.

While our hearts are with Ms. Dugard, the law is not. We agree with the district court that the Federal Tort Claims Act and its interaction with California law precludes her recovery for the incompetence of the parole office that was supposedly supervising Garrido. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

I. FACTS AND PROCEDURAL HISTORY

A. Garrido's Criminal History, Convictions, and Kidnapping of Dugard

The sickening circumstances of this case have been detailed many times in various forms, so we limit our discussion to the essential facts.

Garrido's predatory pattern of sexual abuse, often in conjunction with drug use, began in the 1970s. In 1972, he was arrested, though not convicted, for drugging and raping a juvenile. He was using LSD and marijuana during this time. In 1976, Garrido was charged with kidnapping and raping a woman in South Lake Tahoe, California.

That same year, Garrido kidnapped a second woman in South Lake Tahoe, California, and drove her into Nevada, where he hid her in a shed and raped her. He was charged in federal court with kidnapping, and was convicted and sentenced to 50 years imprisonment in 1977. During his trial, Garrido testified and explained that, while under the influence of drugs, he had uncontrollable deviant and violent sexual compulsions. In 1988, he was released on federal parole. His federal parole was set to expire in March 1999, after which the State of California would take over supervision.¹

Due to his history of sexual violence while intoxicated, Garrido's federal parole terms required him to undergo regular drug testing and counseling. They also banned drug use and excessive alcohol consumption. Parole officers recognized that “the potential for causing great physical harm is present if [Garrido] becomes unstable as a result of drug use.” Medical professionals described him as “a time bomb” and “like a pot boiling with no outlet valve.” Despite these prophetic warnings and mandatory reporting obligations, in the 30 months after his release on parole, officers did not report approximately 70 documented drug-related parole violations, including methamphetamine abuse, to the Parole Commission. These violations included Garrido drinking excessive amounts of water to dilute urine samples used in drug tests.

On June 10, 1991, while Garrido was on federal parole, Garrido and his wife kidnapped Dugard near her home in South Lake Tahoe.² She was only 11. For the next 18 years, Garrido held Dugard captive, sometimes in chains, in a shed that he built in his backyard. Often on methamphetamine binges, he repeatedly raped and drugged her. Dugard gave birth to two of his children without any medical treatment or prenatal care. Dugard and her children remained captive until their discovery on August 26, 2009.

B. Proceedings Before the District Court³

In September 2011, Dugard filed a complaint against the United States under the Federal Tort Claims Act (FTCA), on her own behalf and as guardian for her two minor children (A. Dugard and G. Dugard).⁴ In December 2012, Dugard filed a Second Amended Complaint. In it, she alleged that the government negligently performed numerous mandatory duties when supervising Garrido, including duties to report parole violations in the years prior to her kidnapping. But for the government's negligence, she alleged, Garrido's parole would have been revoked and he would not have been able to kidnap her in 1991.

Following discovery, the government filed a motion to dismiss and for summary judgment. The government argued that the FTCA bars Dugard's claims because there is no liability for private individuals in like circumstances under California law, as required to sustain an FTCA claim under 28 U.S.C. § 2674.⁵

The district court granted the motion, finding that the proper state-law analogy to the government officials in this case was to private parties providing criminal rehabilitative services. California law holds that such private parties “do not owe a duty of reasonable care to control others to the entire world or to the general public.” Instead, “such duty of reasonable care to control is owed by such rehabilitative service providers only to a very small group of specifically identifiable and foreseeable victims.” Since Dugard did not allege that she was a specifically identifiable victim, the “United States owed no duty of reasonable care to Plaintiffs in this case.”

II. DISCUSSION

A. Standard of Review

We review de novo a district court's dismissal of an FTCA claim because a private person under like circumstances would not be liable under state law. Xue Lu v. Powell , 621 F.3d 944, 947 (9th Cir. 2010).

B. The FTCA Forecloses Federal Liability In This Case

The FTCA, a limited waiver of the United States' sovereign immunity, provides that the United States shall be liable “in the same manner and to the same extent as a private individual under like circumstances” under applicable state law. 28 U.S.C. § 2674 ; see also id. § 1346(b)(1). Although the federal government “could never be exactly like a private actor, a court's job in applying the standard is to find the most reasonable analogy.” LaBarge v. Mariposa Cty. , 798 F.2d 364, 367 (9th Cir. 1986).

The most analogous cases to this situation involve the liability of private criminal rehabilitation facilities. Under California law, private companies that operate rehabilitation programs do not owe a duty of care to the public at large for the conduct of inmates or parolees under their supervision. See Cardenas v. Eggleston Youth Ctr. , 193 Cal.App.3d 331, 238 Cal.Rptr. 251, 252–53 (1987) (holding that a private rehabilitation facility owes no duty of care to “members of the community in which it is located for the criminal conduct of its residents”); Beauchene v. Synanon Found., Inc. , 88 Cal.App.3d 342, 151 Cal.Rptr. 796, 798–99 (1979) (holding that a private rehabilitation center owed no duty to the plaintiff to control the behavior of a convict who escaped the facility and shot the plaintiff). Instead, the private facilities owe a duty only to individuals that are foreseeable and specifically identifiable victims of their wards' conduct. See Vu v. Singer Co. , 706 F.2d 1027, 1029 (9th Cir. 1983) (discussing the duty to warn under California law and concluding that it “clearly” requires a “foreseeable and specifically identifiable” victim); Rice v. Ctr. Point, Inc. , 154 Cal.App.4th 949, 65 Cal.Rptr.3d 312, 316 (2007) (explaining that a duty exists only where the “injury is foreseeable and the intended victim is identifiable”). This rule is a result of California's strong public policy to encourage “innovative criminal offender release and rehabilitation programs.” Beauchene , 151 Cal.Rptr. at 799.

As Dugard has not argued, and submits no facts to suggest, that she was a specifically identifiable victim, she would not have a viable claim against an analogous private person under California law.

Dugard contends that Beauchene, Cardenas, Rice, and Vu are inappropriate private person analogues because the duties described therein originally arose out of a statutory immunity granted only to public entities—Cal. Gov. Code Section 845.8.⁶ As she puts it, using these cases to locate the most analogous private parties “backdoor[s] inapplicable state government immunities into the FTCA analysis.” As support, she points to the Supreme Court's instruction that the United States' liability under the FTCA may not be defined by reference to the liability of state or local entities. See United States v. Olson , 546 U.S. 43, 45, 126 S.Ct. 510, 163 L.Ed.2d 306 (2005) (rejecting argument that the federal government's liability should be compared to the liability of state and local mine inspectors); Rayonier Inc. v. United States , 352 U.S. 315, 318–19, 77 S.Ct. 374, 1 L.Ed.2d 354 (1957) (rejecting argument that the federal government's liability should be determined by the liability of state and local firefighters); Indian Towing Co. v. United States , 350 U.S. 61, 65, 76 S.Ct. 122, 100 L.Ed. 48 (1955) (rejecting argument that the federal government's liability should be compared to the liability of a municipal corporation).

In locating an analogous private party under the FTCA, however, it is appropriate to look to cases involving public entities or public immunities, so long as the policies underlying them are applicable to private parties in the state as well. See Xue Lu , 621 F.3d at 947 (“A public-entity case ... can offer some guidance, to the extent it illuminates general principles of respondeat superior liability that apply in California to public and private employers alike.”). The public policy to limit the liability of institutions involved in criminal rehabilitative endeavors is one that California courts have expressly...