Suing the CDCR or its Officers in State Civil Court?

Our office received a steady stream of phone calls from those in custody or family members of those in custody who are eager to find an attorney to help them sue the CDCR or its officers in a civil lawsuit for money damages.  Ironically, the caller is usually almost giddy with happiness, ironically, that he or she has suffered some type of injury or wrong and now wants to “cash in.”  The caller often expects the attorney to share such optimism and be grateful for the call.

However, as this article will explain, winning such a lawsuit is often far more difficult than one may realize.

As the reader of this website may be well aware, such a lawsuit can be filed in federal court or in state court.  This article will cover filing such a case in state court.  Other prior articles on our website have extensively addressed such a federal lawsuit, often under 42 U.S.C. § 1983.

Any person who is deprived of a state constitutional or statutory right or who has been injured by someone else’s bad act may file a state civil lawsuit. A person who files a lawsuit is called the plaintiff. 

In state court, the California Government Claims Act (Government Code § 810, et seq.) and California’s Bane Civil Rights Act (Code of Civil Procedure § 52.1) are commonly filed by people in state prisons.  Prisoners can use these lawsuits to seek money damages for injuries or losses caused by violations of California state law by public officials or employees.  Prisoners can also use these types of lawsuits to seek injunctive relief (an order that prison officials do or stop doing something), though usually other types of legal actions are better for that purpose, such as state habeas corpus petitions, federal civil rights cases. 

As in federal lawsuits of this type, prisoners filing such civil lawsuits in state court must first exhaust administrative remedies with both prison officials and the Department of General Services, Office of Risk and Insurance Management.  There are also limited immunities that make the state and its employees or officials immune (meaning they can’t be held liable) for many types of state civil claims.

It merits mention that in some cases, the facts may support both a federal civil rights claim and a state government or civil rights claim, and both claims can be joined together in one lawsuit filed in either federal or state court.  In other cases, there may be only a state law claim and the case must be filed in state court.  Also, it is sometimes easier for a person to win a state law claim than a federal law claim because state law has less extensive immunity provisions and may be violated by less serious misconduct. See, e.g., Lucas v. County of Los Angeles (1996) 47 Cal. App. 4th 277, 54 Cal.Rptr.2d 655.  Thus, a person who suffers an injury as a result of a state employee’s wrongful act should always try to preserve the right to sue under state law.

Before filing a state civil lawsuit (or a federal civil rights lawsuit that includes a state law claim) against the CDCR or a CDCR official, a person in prison or on parole must file a CDCR administrative appeal seeking money damages and pursue the administrative appeal to the highest level of review. Completion of the administrative appeal process is necessary even though the CDCR does not normally grant money damages through the administrative appeal process. Wright v. California (2004) 122 Cal. App. 4th 659, 664-671, 19 Cal. Rptr. 3d 92.

In addition to filing a CDCR administrative appeal, a plaintiff who wants to sue the state or a state official or state employee for money damages for a violation of California law must first file a claim with the Department of General Services, Office of Risk and Insurance Management. Government Code § 945.4; Government Code § 950.2.

The deadline to file a Government Claim form seeking compensation for death, personal injury, or loss or damage to property is six months after the “accrual” of the cause of action. Government Code § 901; Government Code § 911.2. Under these laws, any other type of claim should be presented not later than one year after the cause of action accrues.

Generally, a cause of action accrues on the date of the wrongful or negligent act that causes the injury or loss or on the date that plaintiff first discovers the injury or loss. The six-month time limit is not extended just because a person is imprisoned or on parole. Government Code § 945.6(c); see also Torres v. California Dept. of Corrections and Rehabilitation (2013) 217 Cal.App.4th 844 [158 Cal.Rptr.3d 876] (no tolling during parole).

However, a plaintiff who misses the deadline can request permission to file late claim.

To file a Government Claim, a plaintiff must fill out and file a Government Claim Form.  The form should be available in the prison law libraries and is on the Department of General Services website at www.dgs.ca.gov/orim/Programs/GovernmentClaims.aspx.  

A person could also try requesting a form by writing to the Government Claims Program, Office of Risk and Insurance Management, Department of General Services, P.O. Box 989052, MS 414, West Sacramento, CA 95798.  The form must set forth all the facts supporting the claim, such as the type and extent of the injury, who caused it, and when and how it occurred.  

A lawsuit that alleges a factual or legal basis for recovery that was not included on the Government Claim Form may end up being dismissed. Watson v. California (1993) 21 Cal. App. 4th 836, 844, 26 Cal. Rptr. 2d 262; Nelson v. California (1983) 139 Cal. App. 3d 72, 188 Cal. Rptr. 479; Casteneda v. California Dept. of Correction and Rehabilitation (2013) 212 Cal. App. 4th 1051, 151 Cal.Rptr.3d 648 (where person in prison filed tort claim and later died, person’s daughter must file her own claim to proceed with a wrongful death action).

The plaintiff should then sign the form and mail it to the address listed on the form, along with either a $25 filing fee or a request for a fee waiver. Government Code § 905.2(b). The plaintiff should enclose a copy of the form and a pre-addressed, postage-paid envelope; the clerk who files the form will stamp the extra copy and send it back to the plaintiff as evidence that the claim was filed.  It is also a good idea for the plaintiff to keep a copy of the claim in case the package is lost or delayed.

While this article appears on our website, it would be a mistake and too generous of the reader to attribute its contents to us.  Instead, the reader should thank, as do we, the Prison Law Office in Folsom, California and their wonderful treatise, California Prison and Parole Law Handbook, from which the contents of this article is heavily drawn.