L.W.

92 F.3d 894 11 IER Cases 1735 , 96 Cal. Daily Op. Serv. 5956 , 96 Daily Journal D.A.R. 9749 L.W., * Plaintiff-Appellee, v. Dee GRUBBS; Thomas Nelson; Marlin Hutton; Richard Hill, Defendants-Appellants. Nos. 95-35624, 95-35968. United States Court of Appeals, Ninth Circuit. Submitted April 18, 1996. ** Decided Aug. 9, 1996. Rives Kistler, Assistant Attorney General, Salem, Oregon, for defendants-appellants. Kerry M.L. Smith, Smith & Fjelstad, Gresham, Oregon, for plaintiff-appellee. Appeals from the United States District Court for the District of Oregon, Helen J. Frye, District Judge, Presiding. D.C. No. 90-661-FR. Before: GOODWIN, THOMPSON and FERNANDEZ, Circuit Judges. Opinion by Judge GOODWIN; Partial Concurrence and Partial Dissent by Judge FERNANDEZ. GOODWIN, Circuit Judge: 1 A female employee was assaulted and injured by a predatory inmate in a state institution and a jury awarded her $325,000 in damages against her supervisor. He appeals the judgment. We reverse. PROCEDURAL HISTORY 2 In a prior appeal of this case, we reversed the Fed.R.Civ.P. 12(b)(6) dismissal of the complaint, holding that the complaint "alleged facts demonstrating official deliberate indifference in…

Opinion by Judge GOODWIN; Partial Concurrence and Partial Dissent by Judge FERNANDEZ.

A female employee was assaulted and injured by a predatory inmate in a state institution and a jury awarded her $325,000 in damages against her supervisor. He appeals the judgment. We reverse.

PROCEDURAL HISTORY

In a prior appeal of this case, we reversed the Fed.R.Civ.P. 12(b)(6) dismissal of the complaint, holding that the complaint “alleged facts demonstrating official deliberate indifference in creating the danger.” L.W. v. Grubbs, 974 F.2d 119, 123 (9th Cir.1992) (L.W.I), cert. denied, 508 U.S. 951 , 113 S.Ct. 2442 , 124 L.Ed.2d 660 (1993). We did not then discuss what “mental state beyond ‘mere negligence’ is required for due process third party claims” because the facts alleged in the complaint, if true, demonstrated deliberate indifference, on the part of the state officials, in creating the danger. L.W. I, 974 F.2d at 122-23 .

On remand, the district court granted summary judgment in favor of all the original defendants, except for Grubbs, because there was no evidence that others were responsible for creating the danger to the plaintiff. Grubbs, plaintiffs immediate supervisor, went…

concurring and dissenting:

Although I concur in the majority opinion for the most part, I write separately to clarify the scope of my concurrence, and to dissent in part.

I believe that any explication of the law in this area must start with Collins v. City of Marker Heights, 503 U.S. 115 , 112 S.Ct. 1061 , 117 L.Ed.2d 261 (1992). In Collins , the Supreme Court was dealing with a situation where a supervisor placed a government employee in a position of danger which resulted in the employee’s death. The complaint did not allege that there was any intent to deliberately harm the employee and did not even say that the supervisor knew, or should have known, that there was a significant risk of injury. Id. at 125-26 , 112 S.Ct. at 1069 . The plaintiff argued that “the Federal Constitution imposes a duty on the city to provide its employees with minimal levels of safety and security in the workplace, or that the city’s ‘deliberate indifference’ to Collins’ safety was arbitrary government action that must ‘shock the conscience’ of federal judges.” Id. at 126 , 112 S.Ct. at 1069 . The Court did not reject the possibility that those theories could serve as separate bases of liability.…