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Long before Jeffrey Ford became James Diesso’s cellmate, prison guards called Diesso a “predator.” Diesso had attacked other inmates and guards on 11 occasions while in prison, and he stabbed one inmate 17 times in the shower with a makeshift knife. In 1998, Diesso killed Ford two days after they began sharing a cell in the psychiatric unit of a Vacaville prison medical facility and then smeared “die demon” on a wall in Ford’s blood. Lawyers for Ford’s estate argued prison officials should have known better and went to federal court to seek damages. But last month, the 9th U.S. Circuit Court of Appeals blocked most of the case from going to trial — and according to plaintiffs and prisoner rights attorneys, may have made it nearly impossible for anyone to successfully sue a prison official for civil damages. At issue is how the court is applying “qualified immunity,” which the 9th Circuit said last month shields prison officials from damages because they did what any reasonable officers would have done. The 9th Circuit panel gave prison officials broad latitude to make housing decisions, and said that because Diesso had killed no one before, there was no indication he would have done so with Ford. “It seems to me, absent an admission of murder, you’d never be able to prove an Eighth Amendment violation,” said John Houston Scott, a San Francisco civil rights lawyer who represents Ford’s family. He and his co-counsel, Stanley Casper of Walnut Creek’s Casper, Meadows & Schwartz, also argue that the circuit made exactly the opposite decision in a similar case just a few weeks before. They want the court to hear the Ford case en banc to clear up what they see as conflicting rulings. But attorneys for the prison officials, such as J. Scott Smith, an appellate attorney at Sacramento’s Angelo, Kilday & Kilduff, say the rulings don’t conflict and that the judges were simply bringing the circuit into line with the Supreme Court, which has strictly limited liability of prison officials. “Diesso was a very bad man, but prisons are filled with very bad men,” Smith said. “When an officer has to make a housing decision, and you have only so much space with so many prisoners, there are some risks.” In Estate of Ford v. Ramirez-Palmer, 02 C.D.O.S. 7714, plaintiffs allege that prison officials were well aware of Diesso’s violent history and shouldn’t have granted Diesso’s and Ford’s request to be housed together, a practice called double-celling. Diesso has a record of violence against guards and inmates that stretches back to 1993. In 1995 he was designated a “predator,” which means he could not be housed with inmates who were identified as “victims.” Ford was not designated a “victim” by prison officials. Ford was an “effeminate” gay inmate, according to the opinion. Diesso, the court opinion said, “was not outwardly homosexual,” but often requested to be housed with gay inmates. In 1997, Diesso stabbed an openly gay inmate who threatened to tell others that Diesso was gay. A Sacramento U.S. District Court judge, Garland Burrell Jr., ruled against the officers’ summary judgment motion on qualified immunity. The judge said that a trial is needed to sort out whether the defendants — such as associate warden Edward Caden, who helped make the classification decision that allowed the inmates to live together — were deliberately indifferent. Drawing on Saucier v. Katz, 533 U.S. 194, and Farmer v. Brennan, 511 U.S. 825, the 9th Circuit reversed. “We conclude that [the defendants] are entitled to qualified immunity because it would not have been clear to a reasonable correctional officer � that double-celling Diesso or double-celling him with Ford, posed such a substantial risk of serious harm that doing so would be constitutionally impermissible,” wrote Judge Pamela Ann Rymer. She was joined by Senior Judge William Canby Jr. and visiting Kentucky federal judge William Bertelsman. Canby also penned a partial dissent. In light of Diesso’s past, Canby wrote, prison officials should have housed Diesso alone at the California Medical Facility in Vacaville, even if his paperwork said it was OK for him to have a cellmate. “I am convinced that a reasonable officer in Caden’s position would have known that double-celling classification of Diesso exposed any future cellmate to an excessive risk of harm and that deliberately incurring this risk would violate that cellmate’s Eighth Amendment rights,” he wrote. A veteran attorney who represents inmates’ families in prison death cases said that Ford and a 2001 9th Circuit case, Jeffers v. Gomez, have “flipped prison litigation on its head.” “The [ Ford] rationale was so unbelievable,” said Catherine Campbell, a Fresno attorney who has taken on prison death cases since 1993. In the opinion, the judges said that the guards couldn’t have foreseen the slaying because Diesso hadn’t killed another cellmate before, she said. “Well, he tried,” Campbell said, noting that now plaintiffs attorneys virtually have to prove criminal wrongdoing. Casper, the plaintiff’s attorney, said that if the officer’s conduct only needs to be “reasonable,” prison officials would be protected from liability in almost any situation. “You can always come up with some ridiculous justification,” Casper said. Weeks before Diesso became Ford’s roommate, prison officials had made a decision to transfer him to Pelican Bay because he could no longer be safely housed in Vacaville, Casper said. Casper said that a few weeks before the Ford ruling, the court ruled the opposite way in a far less grisly prison case, Clement v. Gomez, 02 C.D.O.S. 7063. In Clement, several Pelican Bay inmates alleged that they suffered health problems after guards used pepper spray to break up a fight. Bystander inmates allegedly suffered from asthma attacks as well as severe skin and eye irritation because the area wasn’t ventilated after the fight was over. Affirming and reversing in part, Judges Joseph Sneed, Procter Hug Jr. and Marsha Berzon wrote that qualified immunity didn’t protect the officers. “While resolution of the factual issues may well relieve the prison officials of any liability in this case, if the prisoners’ version of the facts were to prevail at trial, a jury may conclude that the officers were deliberately indifferent to [medical] needs. � Under such circumstances, the officials’ actions are not protected by qualified immunity.” Smith, however, argues that medical-care cases like Clement are very different from Ford. In the pepper spray case, an objective decision could be made by a medical expert about the risk to inmates. In the housing case, however, it’s much harder to prove risk and predict human behavior, he said, adding, “I don’t think that there is any real inconsistency there.” He also argues that Diesso had been housed with other inmates, including gay ones, without incident. Previously, Diesso and Ford had shared a cell without any problems, he said. Smith said the court made an important call that will allow prison guards to do their jobs. Qualified immunity is supposed to be a tough standard that “protects all officers with the exception of those that are patently incompetent or knowingly violate the law,” he said. While many suits claim that inmates were hurt or killed as a result of actions by prison officials, few make it past the summary judgment hurdle because of qualified immunity, attorneys say. Now, the Ford case would make it even more difficult for plaintiffs attorneys to pursue those cases, said Donald Spector, director of the Prison Law Office, a public interest law firm. Few private plaintiffs attorneys take prison cases because they are difficult to litigate, prison officials rarely settle, and it’s difficult to talk to clients. Plus, under the 1995 Prison Litigation Reform Act, plaintiffs lawyers’ fees are limited. Victorious plaintiff attorneys can pursue the losing side for fees equal to $169.50 per hour or, at most, 150 percent of the damage award, Spector said. That means in an inmate injury case, if the jury awards only a small amount, the plaintiff’s lawyers can seek little in fees. In a normal injury case, a lawyer could ask the defense to pony up fees calculated by his or her normal hourly rate. The act’s fee rule excludes death cases such as Ford. Although several Ford defendants — including corrections officers Sgt. Robert Williams, Lt. Eric Arnold and Warden Ana Ramirez-Palmer — were dismissed from the case, one officer remains a defendant.

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