on December 3, 1998 that he needed help. However, that plea becomes
somewhat ambiguous when examined in the context of the deposition
testimony from which it derives. When Young-Miller asked Swan what he
wanted her to do, he said he did not know, he "just need[ed] help."
Young-Miller's response was to again ask Swan what he wanted her to do.
Swan again said he did not know and then he proceeded to explain to
Young-Miller that he was afraid like when he was in reform school. Three
reasonable interpretations of this conversation are plausible. First,
Swan may have intended to request that Young-Miller take some action to
protect him, but he did not know what form such action should take.
Second, Swan may have expressed a need for help, but when asked to
specify the assistance he desired, he vacillated and became unsure as to
whether he actually wanted any assistance. Third, when Swan asked for
help, he may have been, asking Young-Miller for psychological assistance
in dealing with the childhood fears that had resurfaced as a result of
the confrontation and Swan's history of sexual and physical abuse. Given
the possible meanings of Swan's plea for help, a reasonable prison
official could have properly concluded that Swan was not in fact
requesting to be protected by prison staff, and thus, the prison official
could have believed that not taking further action was lawful under the
circumstances. Swan's subsequent failure to report any fear of danger or
intimidation and failure to request any assistance at his December 8,
1998, December 16, 1998, or December 21, 1998 counseling sessions likely
confirmed Young-Miller's conclusion that Swan did not desire protection,
and, by reasonable implication, her opinion that Swan did not believe he
was in physical danger.
Finally, Young-Miller's decision not to pursue protective action was
motivated not by an indifference to Swan's situation, but by her desire
to preserve the confidentiality of Swan's disclosures. As described in
the next section of this Order, California law protects the
confidentiality of communications between psychotherapists and patients.
While psychologists are required to disclose information regarding
dangers that patients pose to themselves or to others, California law
does not require disclosure where the danger is posed to the patient from
a third party. Rather, a psychologist may disclose, but is not obligated
to disclose such information. Thus, when Swan informed Young-Miller that
he had been threatened by someone else, Young-Miller was not required to
breach the confidentiality of her patient-psychotherapist communications
with Swan. With regard to the issue of qualified immunity, Young-Miller
could have reasonably believed that her decision to maintain the
confidentiality of Swan's December 1998 disclosures properly complied
with the law. Moreover, Swan later confirmed that Young-Miller's decision
corresponded to his expectations regarding confidentiality when, at his
December 8, 1998 session, he verified that she had not told anyone about
his confrontation with the other inmates by asking her, "You didn't tell
anyone, did you?" See Young-Miller Decl., ¶ 8.
Not only was a risk to Swan not obvious in this case, the undisputed
facts also demonstrate that Young-Miller, or another prison official in
her shoes, could have reasonably determined that no excessive risk to
Swan's health or safety existed under the circumstances. Young-Miller's
assessment of the situation did not amount to deliberate indifference to
Swan's predicament, nor did she know of but disregard a substantial risk
that Swan would suffer serious harm. To the contrary, she considered the
surrounding facts and concluded that "the risk to which the facts gave
rise was insubstantial or nonexistent." Farmer, 511 U.S. at 844, 114
The facts reveal that a reasonable prison official in Young-Miller's
position would have similarly concluded that Swan's fears, while
credible, did not place him in danger of serious harm.*fn4
Consequently, Young-Miller is entitled to qualified immunity from Swan's
claim for violation of the Eighth Amendment.
II. Federal Tort Claims Act
The defendants also seek summary judgment in their favor on Swan's FTCA
claim. According to Swan, the United States is liable under the FTCA
because Young-Miller was negligent in failing to take any action after
Swan told her of his confrontation with the threatening inmates. The
defendants, however, contend that Young-Miller's duty as a
psychotherapist to keep Swan's communications confidential excused her
from disclosing information regarding the confrontation, and thus, the
defendants argue that Young-Miller's actions satisfied the duty of care
she owed to Swan.
The FTCA waives the sovereign immunity of the United States for claims
based on the negligent or wrongful acts of United States employees.
28 U.S.C. § 1346. Under the FTCA, the government's liability is
determined "in the same manner and to the same extent as a private
individual in like circumstances." 28 U.S.C. § 2674; Kangley v.
United States, 788 F.2d 533 (9th Cir. 1986). Because plaintiff's accident
occurred in California, this action is governed by California law.
28 U.S.C. § 1346 (b); Yanez v. United States, 63 F.3d 870, 872 (9th
California law provides a broad rule of privilege to protect
confidential communications between patient and psychotherapist. See
Cal. Evid.Code § 1014(a). Under this privilege, psychotherapists are
required to maintain the confidentiality of their communications with
patients. There are, however, several exceptions to this obligation. Since
the patient holds the privilege of precluding the disclosure of
confidential communications, he or she may waive the privilege through
his or her own disclosure of a significant part of the communication or
by consenting, through words or actions, to such a disclosure by someone
else. See Cal. Evid.Code § 912. Similarly, California law precludes
psychotherapists from claiming the privilege of refusing to disclose
confidential communications when their patients instruct them not to do
so. See Cal. Evid.Code § 1014(c). California statutory and
decisional law recognizes another exception to the privilege by imposing
a duty on psychotherapists to disclose confidential patient
communications when there is "reasonable cause to believe that the
patient is in such mental or emotional condition as to be dangerous to
himself or to the person or property of another and that disclosure of
the communication is necessary to prevent the threatened danger."
Cal. Evid.Code § 1024; Tarasoff v. The Regents of the Univ. of
California, 17 Cal.3d 425, 442, 131 Cal.Rptr. 14, 551 P.2d 334 (1976). As
explained by the California Supreme Court, "the public policy favoring
protection of the confidential character of patient-psychotherapist
communications must yield to the extent to which disclosure is essential
to avert danger to others." Tarasoft 17 Cal.3d at 442, 131 Cal.Rptr. 14,
551 P.2d 334. Therefore, "[t]he protective privilege ends where the
public peril begins." Id.
The situation in this case is not directly addressed by the
above-described psychotherapist-patient privilege or its exceptions.
Here, Swan's communications to Young-Miller did not disclose any risk
that Swan would harm himself or that Swan posed a danger to others.
Instead, the confrontation that Swan described to Young-Miller on
December 3, 1998 involved the possibility that Swan might be harmed by a
third party. California law has not imposed a duty on psychotherapists
whereby they must violate the confidentiality of patient communications
in order to protect a patient from a third party. Although a
psychotherapist may reveal communications regarding a risk of harm to a
patient from another person, they are not obligated to make such
disclosures. See, e.g., Cal. Evid.Code § 912 (patient may consent to
waiver of the privilege); Cal. Evid.Code § 1014(c) (psychotherapists
may not claim the privilege to refuse to disclose confidential patient
communications "if he or she is otherwise instructed by a person
authorized to permit disclosure"); see also Young-Miller Decl., ¶
2; American Psychological Assoc., Ethical Principles of Psychologists and
Code of Conduct § 5.05 (1992) ("Psychologists disclose confidential
information without the consent of the individual only as mandated by
law, or where permitted by law for a valid purpose, such as . . . to
protect the patient or client or others from harm . . . ." (emphasis
added). Consequently, Young-Miller was under no legal duty disclose
Swan's confidential communica tions. See Benavidez v. San Jose Police
Dep't, 71 Cal.App.4th 853, 859, 84 Cal.Rptr.2d 157 (1999) ("The existence
of a duty is a question of law."); Dutton v. City of Pacifica,
35 Cal.App.4th 1171, 1175, 41 Cal.Rptr.2d 816 (1995). Moreover, since
notifying prison officials of a possible risk of harm to Swan or pursuing
protective measures on behalf of Swan would have necessarily involved the
disclosure of Swan's counseling-session statements, Young-Miller did not
breach a duty owed to Swan when she elected to forego protective action
in this case. Absent a duty to disclose Swan's disclosures or take action
in response to his confidential communications, there can be no
negligence cause of action based on Young-Miller's conduct. Cf
Benavidez, 71 Cal.App.4th at 868, 84 Cal.Rptr.2d 157 ("Without a duty, no
negligence cause of action can be stated"). Swan's FTCA claim therefore
fails as a matter of law.
Young-Miller is entitled to qualified immunity from Swan's claim for
violation of the Eighth Amendment. The undisputed facts in this case
establish that Young-Miller, or another prison official possessing the
same knowledge of the surrounding facts that Young-Miller possessed,
could have reasonably believed that the conduct at issue was lawful under
governing legal standards. Young-Miller did not exhibit deliberate
indifference to a substantial risk of serious harm to Swan. Instead, she
reasonably determined that no excessive risk to Swan's health or safety
existed under the circumstances. Therefore, qualified immunity applies to
Young-Miller and summary judgment in favor of the defendants is warranted
on this cause of action.
In addition, summary judgment is also proper with respect to Swan's
claim under the FTCA. Young-Miller did not breach any duty of care owed
to Swan when she maintained the confidentiality of his counseling-session
communications. Since the information Young-Miller learned from Swan
regarding his confrontation with the threatening inmates related to a
risk of harm to Swan from a third party, and not a risk of harm from Swan
to himself or to others, Young-Miller was under no legal. obligation to
reveal Swan's disclosures or to take any other action which would require
the disclosure of Swan's confidential communications.
Therefore, defendants United States of America and Linda Young-Miller,
Ph.D.'s motion for summary judgment is hereby GRANTED.
IT IS SO ORDERED.