GREGORY CLOUTHIER; ANN CLOUTHIER, individually and on behalf of the Estate of Robert John Clouthier, Plaintiffs-Appellants, v. COUNTY OF CONTRA COSTA; WARREN RUPF; MATT FOLEY, Sheriff’s Deputy; ERIK STEELE; MARGARET BLUSH, sued in their individual capacities and as employees of Contra Costa County, Defendants-Appellees.
No. 07-16703
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Filed January 14, 2010
591 F.3d 1232
D.C. No. CV-06-03893-MMC. Argued and Submitted March 10, 2009—San Francisco, California. Before: M. Margaret McKeown and Sandra S. Ikuta, Circuit Judges, and Frederic Block, District Judge.
Opinion by Judge Ikuta; Partial Concurrence and Partial Dissent by Judge Block
*The Honorable Frederic Block, Senior United States District Judge for the Eastern District of New York, sitting by designation.
Stan Casper and Thomas A. Seaton, Casper, Meadows, Schwartz & Cook, Walnut Creek, California, attorneys for the appellant.
Janet L. Holmes, Office of County Counsel, Martinez, California, attorney for the appellees.
OPINION
IKUTA, Circuit Judge:
The plaintiffs in this appeal brought an action under
I
On the evening of July 26, 2005, after an argument with his father at the Clouthiers’ home, Clouthier became violent, destroyed a china cabinet, and jumped through a plate glass window, resulting in lacerations and severe bleeding. His family called the police; the sheriff’s office responded along with ambulance and fire personnel. After Clouthier’s father signed a citizen’s arrest for battery, the sheriff’s office placed Clouthier into custody for both misdemeanor battery and felony vandalism. Clouthier was extremely upset about being taken into custody. As he was taken into the ambulance, he hit his head against the side of the ambulance several times. Once at the hospital, he refused to have his wounds stitched. The next morning, July 27, Clouthier was booked into the Martinez Detention Facility ( “MDF “).
At MDF, new detainees fill out a mental health questionnaire during the intake process. If an inmate answers “yes ” to certain questions, he is interviewed by a member of Contra Costa County Mental Health Services. The Mental Health Services department, run by administrative director Miles Kramer, works in conjunction with the Sheriff’s Department by virtue of a contractual agreement. Mental Health Services provides on-site evaluation, counseling, therapy, suicide prevention, medication management, crisis intervention, and substance abuse counseling, while the Sheriff’s Department custodial deputies maintain security and safety in the jail’s housing units.
After filling out a mental health questionnaire, Clouthier was evaluated by Sharlene Hanaway, a Contra Costa County
Hanaway placed Clouthier in a “safety cell ” in the intake area of the jail. She had him wear a suicide smock, a stiff garment that cannot be fashioned into a noose. She restrained his ankles and began noting his status every fifteen minutes in an Observation Log. She also approached the mental health workers, including Margaret Blush, and the deputies in the intake area, and advised them that Clouthier was “truly suicidal ” and “the real deal. ”
Hanaway spoke with Clouthier periodically throughout the morning of July 27, “talking to him and making sure he was okay and [asking] what his state of mind was. ” By that afternoon, Clouthier informed Hanaway that he was not feeling suicidal anymore. Hanaway did not trust him, however, noting “he had multiple suicide attempts before, and given his history and his despondency, his hopelessness, you just don’t recover that quickly. ” Hanaway convinced Clouthier to consider medication, and she called for an emergency consultation with Dr. Douglas Hanlin, a psychiatrist. Hanlin prescribed Effexor XR for Clouthier’s depression and Trazodone to help him sleep. Hanlin also recommended that Clouthier be placed in M-Module, a housing section for unstable inmates, and that he subsequently be reevaluated to determine whether a short-term involuntary hospitalization would be necessary.
Around 2 p.m., Hanaway transferred Clouthier to Observation Room 7, one of the rooms in M-Module equipped with
Before she left her shift, Hanaway gave a copy of her notes to Blush and told her that Clouthier “had been very suicidal throughout the day and that [Hanaway] felt that he needed to be in the observation room and that he needed to be observed and [Blush] needed to look in on him. ” Hanaway left MDF around 6:30 p.m. on July 27.1
Around 7 p.m. the same evening, Blush went up to M-Module and spoke with Clouthier for “[l]ess than five minutes. ” She informed Foley that Clouthier could be given regular prison clothes and a blanket but that he was not to be given any utensils or personal hygiene items. She also told Foley that Clouthier could be removed from the fifteen minute Observation Log, and she made an entry to that effect in the log. Blush testified that she took Clouthier off the Observation Log because in her view, the risk of suicide had decreased, although she was uncertain whether it had disappeared. She explained that her “clinical judgment was that Robert was improving, would benefit from having normal jail clothes and bedding and could be further evaluated by mental health staff the following day. ” However, Blush also agreed that Clouthier was not “out of the woods ” yet.
Blush claims she told Foley to keep Clouthier in the Observation Room, and Foley indicated he understood and responded “I’m sitting right here. ” Foley disputes this. He tes
Regardless of whether Blush instructed Foley to keep Clouthier in the Observation Room, Foley did not move Clouthier from the room, and he remained there when Foley left work on July 27. Foley returned on July 28 to find Clouthier was still in the Observation Room. Per M-Module standard practice, Foley continued to check on Clouthier every thirty minutes. Foley ended his duty at 9:30 pm on the evening of July 28 with Clouthier still in the Observation Room. Foley did not return to work until August 1st, when Clouthier had already been moved into the M-Module general population.
The next day, on July 29, Victoria Brown, another mental health specialist, observed Clouthier in Observation Room 7 during dinner hour for three to five minutes. She “understood that he was suicidal, ” and asked him some questions to evaluate his mental state. She observed that “while he appeared calm . . . he still appeared acute to me, his affect or what I could see on his face suggested that he was still . . . not feeling well. ” Therefore, she did not think that “trying to have a lengthy conversation would be appropriate at that time. ” She further testified that she was not “overly concerned with [Clouthier’s] situation, given the background information I had on him. He was calm and looked emotionally drained. He looked like he needed rest more than anything. ” Based on her “over 37 years of working with potentially suicidal mental health patients, ” Brown’s clinical evaluation “was that he was not actively suicidal at the time. ” Although she “did not feel
That evening, Deputy Eric Steele began his shift on M-Module. The other deputies told him that earlier in the week Clouthier had been placed in Observation Room 7 “for being a danger to himself, ” and since then had been “taken off the Observation Log but had not yet been moved ” from the Observation Room. Steele reviewed the Red Book, but he did not see any information about why Clouthier was in the Observation Room. Nor did Steele see any of Clouthier’s medical records kept by Mental Health. Clouthier remained in the Observation Room from July 29 through July 31.
On July 31, the Red Book stated that Clouthier had refused free time at 10:21 a.m., refused lunch at 11:36 a.m., and refused dinner at 5:11 p.m. Steele testified that the Red Book notation about Clouthier skipping his free time did not raise a “red flag ” because it was not unusual for inmates not to come out in the morning because they want to sleep. Steele testified that when an inmate skips meals he would “keep a closer eye on him, ” and stated:
[A]fter speaking with [Clouthier] all weekend he explained his reasons to me . . . . He told me he wasn’t hungry. He told me he was trying — he just wanted to catch up on his sleep, and he was okay. So after talking with him the whole weekend, it wasn’t the general red flag. If he refused to talk to me or something like that, that might — that would make me think differently than I was about him.
Steele testified further that:
. . .
[H]e was off an observation log, so to me that tells me that he’s not a danger to himself. He had been talking to me during the week. He expressed wanting to come out for recreation with the other inmates, which he had opportunity to come out. Yeah, he had a positive outlook on wanting to come out, waiting to just get out of the room and get more mobile and get more interaction, yes.
Captain David Pascoe, the Deputy Supervisor, testified that, based on the Sheriff’s Department’s training, he would expect a deputy to ask Mental Health to evaluate an inmate that was skipping meals and free time. Steele did not inform Mental Health of the Red Book entries.
Sometime between 12:00 a.m. and 6:30 a.m. on August 1, Steele received a call from Sergeant Yates, who stated that he needed Observation Room 7. Steele called Mental Health Services to ask whether Clouthier should be moved, but no one answered because Mental Health staff do not work the graveyard shift. Steele testified that he had been looking for an appropriate roommate for Clouthier before the phone call and that, because Clouthier “was off an observation log . . . he’s not a danger to himself. ” Steele then moved Clouthier into the M-Module general population and placed him in a cell with inmate Marc Watkins.
Foley reported back for duty the afternoon of August 1. He testified that he had no reason to question Clouthier’s transfer
Roughly thirty minutes later, at 7:42 p.m., Foley and a nurse went to Clouthier’s cell. They discovered him hanging by the neck from the knotted sheet. Foley administered CPR, and Clouthier was taken to the County Hospital. After being removed from life support ten days later, Clouthier died.
Clouthier’s parents filed suit under
II
Summary judgment is reviewed de novo. Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004). We
“Although the district court did not reach the issue of qualified immunity we may do so where it is clear from the record before us. ” Humphries v. County of Los Angeles, 554 F.3d 1170, 1201 (9th Cir. 2009). “The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. ” Pearson v. Callahan, 129 S. Ct. 808, 815 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (internal quotation marks omitted)). In considering a claim of qualified immunity, the court must determine “whether the facts that a plaintiff has alleged . . . make out a violation of a constitutional right, ” and “whether the right at issue was ‘clearly established’ at the time of defendant’s alleged misconduct. ” Id. at 816. Whether a right is clearly established turns on the “objective legal reasonableness of the action, assessed in light of the legal rules that were clearly established at the time it was taken. ” Id. at 822 (quoting Wilson v. Layne, 526 U.S. 603, 614 (1999)).
On appeal, the Clouthiers raise three arguments. First, they claim that the district court made a legal error by applying the “deliberate indifference ” test articulated by the Supreme Court in Farmer v. Brennan, 511 U.S. 825 (1994). Second, they argue that even if the deliberate indifference test is applicable here, there was a genuine issue of material fact as to whether the individual defendants were liable under that test. Further, the Clouthiers argue that Robert Clouthier’s rights in this context were clearly established, so the individual defendants were not entitled to summary judgment on the ground of qualified immunity. Finally, they argue that the district court erred in concluding that the Clouthiers had not established a genuine issue of material fact as to the County’s lia
III
We first consider the Clouthiers’ argument that the district court erred in holding that liability could be imposed on the individual defendants only if they had a ” ‘deliberate indifference’ to inmate health or safety. ” Farmer, 511 U.S. at 834 (quoting Wilson, 501 U.S. at 302-03).
[1] We have long analyzed claims that correction facility officials violated pretrial detainees’ constitutional rights by failing to address their medical needs (including suicide prevention) under a “deliberate indifference ” standard. See, e.g., Lolli v. County of Orange, 351 F.3d 410, 418-19 (9th Cir. 2003) (applying the “deliberate indifference ” standard to a diabetic pretrial detainee’s claims of failure to provide care for serious medical needs); Gibson v. County of Washoe, 290 F.3d 1175, 1188 & n.9 (9th Cir. 2002) (applying the “deliberate indifference ” standard to the claims of a mentally ill pretrial detainee who died in custody); Cabrales v. County of Los Angeles, 864 F.2d 1454, 1461 & n. 2 (9th Cir. 1988) (applying the “deliberate indifference ” standard to a
[2] This approach is grounded in Supreme Court precedent. In Bell v. Wolfish, the Supreme Court held that pretrial detainees had a due process right not to be punished. 441 U.S. 520, 535 & n.16 (1979). The Court explained that, “what is at issue when an aspect of pretrial detention that is not alleged to violate any express guarantee of the Constitution is challenged, is the detainee’s right to be free from punishment . . . . ” Id.
The Supreme Court has explained the meaning of “punitive intent ” in the context of its Eighth Amendment jurisprudence. For a prisoner to establish “cruel and unusual punishment, ” he must show both an objective component, addressing whether a deprivation was sufficiently serious to be “cruel and unusual, ” and a subjective component, addressing whether correction facility officials acted with “a sufficiently culpable state of mind, ” so that the condition of confinement may be deemed to be “punishment. ” Wilson v. Seiter, 501 U.S. 294, 298 (1991). With respect to the second component, the Court explained, “[i]f the pain inflicted is not formally meted out as punishment by the statute or the sentencing judge, some mental element must be attributed to the inflicting officer before it can qualify ” as punitive. Id. at 300 (emphasis in original).
In cases claiming an Eighth Amendment violation “based on a failure to prevent harm, ” the first, objective component is met if the inmate shows that “he is incarcerated under conditions posing a substantial risk of serious harm. ” Farmer, 511 U.S. at 834. The second component, punitive intent, is met if the claimant shows that the detention facility official’s “state of mind is one of ‘deliberate indifference’ to inmate health or safety. ” Id. This is a subjective test in that “the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference. ” Id. at 837. “[A]n official’s failure to alleviate a significant risk that he should have
[3] In light of the Supreme Court’s rulings that conditions of confinement violate pretrial detainees’ Fourteenth Amendment rights if the conditions amount to punishment, Bell, 441 U.S. at 535, and that failure to prevent harm amounts to punishment where detention officials are deliberately indifferent, Farmer, 511 U.S. at 834, we have concluded that the “deliberate indifference ” standard applies to claims that correction facility officials failed to address the medical needs of pretrial detainees. See, e.g., Lolli, 351 F.3d at 418-19; Gibson, 290 F.3d at 1188 n.9; Cabrales, 864 F.2d at 1461 & n.2. Although we have noted that the Eighth Amendment may provide “a minimum standard of care ” for determining the rights of pretrial detainees, Or. Advocacy Ctr. v. Mink, 322 F.3d 1101, 1120 (9th Cir. 2003), neither we nor the Supreme Court have departed from the standard set forth in Bell and Farmer for considering pretrial detainees’ claims that government officials violated their Fourteenth Amendment rights by failing to prevent harm. See, e.g., Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998) ( “Because pretrial detainees’ rights under the Fourteenth Amendment are comparable to prisoners’ rights under the Eighth Amendment . . . we apply the same standards. “).
[4] In this case, Clouthier was a pretrial detainee confined at MDF in connection with battery and vandalism charges. Accordingly, under Bell and our cases, we must consider whether Clouthier was subjected to punishment. This requires us to inquire into the subjective component of punishment, that is, whether Foley, Steele, or Blush acted with deliberate indifference as defined in Farmer and our cases.
The Clouthiers argue, however, that the deliberate indifference standard is not applicable here. Relying on Mink and Jones v. Blanas, 393 F.3d 918 (9th Cir. 2004), the Clouthiers contend that mentally ill pretrial detainees are entitled to greater protection under the Fourteenth Amendment. The Clouthiers invite us to adapt the standard suggested by Youngberg v. Romeo, 457 U.S. 307 (1982), and hold that mentally ill detainees have a constitutional right to mental health care that does not substantially depart from accepted professional judgment, practice, or standards. Under such a standard, the Clouthiers could prosecute their
[5] We must decline this invitation. The cases cited by the Clouthiers considered the substantive due process rights of individuals detained by the state for the purpose of addressing issues associated with their mental incapacity; they do not address the liberty interests of pretrial detainees who are confined to ensure their presence at trial, as in Bell. In Youngberg, the Court held that a profoundly mentally retarded man who had been civilly committed to a state mental institution had a liberty interest in “reasonable conditions of safety and freedom from unreasonable restraints. ” 457 U.S. at 321. Balancing such liberty interests against the state’s legitimate interests in managing the institution, the Court held that the patient’s interests would be adequately protected if the state addressed them in a reasonable manner as determined by a professional decision maker. Id. at 322-23. The Court did not suggest that such rights were applicable to pretrial detainees. Rather, it cited Bell with approval, noting it had similarly balanced a pretrial detainee’s liberty interest against the state’s interest and the Court there had “upheld those restrictions on liberty that were reasonably related to legitimate government objectives and not tantamount to punishment. ” Id. at 320.
Nor are subsequent Ninth Circuit cases weighing the liberty interests of mentally incapacitated plaintiffs against the legiti
In sum, the cases cited by the Clouthiers involve plaintiffs who were differently situated and who enjoyed different rights from the plaintiffs considered in Bell. Moreover, these cases involved distinct state interests. Because none of these cases signal a departure from Bell, we do not consider them persuasive here. Accordingly, we must evaluate the Clouthiers’ claim that Blush, Steele, and Foley violated Clouthier’s due process rights under the deliberate indifference standard articulated in Farmer and applied by our cases in the context of pretrial detainees.
IV
Even under the deliberate indifference standard, however, the Clouthiers argue that Blush, Steele, and Foley are not enti
A
[6] Viewing the evidence in the light most favorable to the Clouthiers, a rational jury could conclude that Blush was “on notice ” of Clouthier’s suicidal condition and that she actually “inferred from this information that [Clouthier] was at serious risk of harm if he did not receive ” proper care. Lolli, 351 F.3d at 420. Blush was given a copy of Hanaway’s notes, which reflected that Clouthier had told Hanaway he was suicidal and that he had previously attempted suicide. The notes also stated that Clouthier was put in a suicide smock, was to be “constantly monitored throughout the day to ensure his safety, ” and that Mental Health would gather more of his history. Hanaway also personally informed Blush that she thought Clouthier was truly suicidal, that he was going to try to kill himself, and that he was the “real deal. ” Hanaway emphasized that Clouthier “had been very suicidal throughout the day and
[7] In addition to Hanaway’s notes and personal warnings, which give rise to the inference that Clouthier faced a substantial risk of serious harm, the Clouthiers adduced evidence that Blush actually inferred that Clouthier was suicidal. After meeting with Clouthier for “[l]ess than five minutes, ” Blush told Foley that Clouthier should not have access to utensils or other objects because she “felt it was best that some limitations be placed on his access to anything. ” Blush also agreed that Clouthier was not “out of the woods ” yet and that his condition could “go either way. ” She testified she was “uncertain ” whether his suicidality had disappeared. Yet, Blush removed Clouthier from the Observation Log, told the deputies he could be given regular clothes and regular bedding, failed to instruct Foley to keep Clouthier in the Observation Room,2 and neglected to determine if additional care was needed. From this circumstantial evidence, a jury could reasonably infer that Blush knew of Clouthier’s depressive, suicidal condition and need for mental health treatment, and “also knew of the risk of harm that he faced if denied medical attention. ” Lolli, 351 F.3d at 421; see also Farmer, 511 U.S. at 843 n.8 ( “While the obviousness of a risk is not conclusive and a prison official may show that the obvious escaped him, . . . he would not escape liability if the evidence showed that he merely refused to verify underlying facts that he strongly suspected to be true, or declined to confirm inferences of risk that he strongly suspected to exist . . . . “). Accordingly, resolving factual disputes in favor of the Clouthiers, “the circumstances suggest that [Blush] had been exposed to information concerning the risk and thus ‘must have known’ about it . . . . ” Farmer, 511 U.S. at 842. Therefore, there exists a genu
In light of this conclusion, we must consider whether Blush is entitled to qualified immunity. This inquiry involves the question whether “the law governing [Blush’s] conduct was clearly established ” and whether “a reasonable state official [could] have believed [Blush’s] conduct was lawful. ” Estate of Ford v. Ramirez-Palmer, 301 F.3d 1043, 1050 (9th Cir. 2002). Blush argues that Clouthier’s constitutional rights in this context were not clearly established at the time of Blush’s alleged misconduct. According to Blush, although it was clear in 2005 that pre-trial detainees had a right to mental health care, the contours of that right were vague at that time, and she was not on notice that her conduct was unlawful.
[8] We disagree. In 1988, we affirmed a jury verdict imposing
B
[9] As to Steele, we conclude that the Clouthiers’ evidence is insufficient to allow a reasonable jury to conclude that Steele knew Clouthier was subject to a substantial risk of serious harm when he moved him to the general population. The Clouthiers argue that a jury could find that Steele must have known of the risk to Clouthier “from the very fact that the risk was obvious. ” They point out that, on July 31, Steele knew that Clouthier had recently refused to eat both lunch and dinner, and had refused to partake in free time. Further, the Clouthiers note that Steele had been trained to recognize the signs of at-risk detainees by looking for individuals illustrating subtle signs of self-destructive intent, such as loss of appetite or withdrawal.
[10] The Clouthiers’ argument is unavailing. Here, the evidence, comprised of the Red Book entries and Steele’s prior training, does not create an inference that the substantial risk of serious harm to Clouthier was so obvious that Steele “must have known ” of it. Unlike Blush, who was personally informed of Clouthier’s suicidal proclivities, Steele knew only that the Red Book entries noted Clouthier’s missed meals and free time. Steele testified that when he reported to work on July 28, “[t]hey explained to me that earlier in the week [Clouthier] was placed in there for being a danger to himself, and since then was taken off the observation log and had . . . yet to be moved out of there. ” As to the Red Book entries, Steele noted that, when an inmate skips meals, he would “need to keep a closer eye on him, ” and indeed Steele followed up with Clouthier, “speaking with him all weekend. ” After inquiring multiple times into Clouthier’s status, Steele noted that Clouthier “had a positive outlook on wanting to
[11] In the absence of a risk so “obvious ” that Steele must have drawn an impermissible inference, the Clouthiers were required to adduce evidence that raised a genuine issue of
C
[12] As to Foley, the evidence adduced by the Clouthiers is insufficient to allow a jury to conclude that Foley knew Clouthier was suicidal and deliberately ignored that risk. The Clouthiers argue that Foley knew of the risk facing Clouthier because he had initially been informed by Hanaway of Clouthier‘s suicidality and had been told by Blush to continue certain restrictions on Clouthier. Moreover, the Clouthiers claim that Foley saw the knotted sheet in Clouthier‘s cell. Given Foley‘s knowledge that Clouthier was suicidal, the Clouthiers argue that Foley deliberately failed to take steps to address the risk.
We again must disagree. The record does not include sufficient direct or circumstantial evidence to create a genuine issue of material fact as to whether Foley was subjectively aware of a substantial risk of harm to Clouthier and that he deliberately ignored that risk.
[13] Foley had two different encounters with Clouthier. The first occurred during the period from July 27, when Hanaway transferred Clouthier to the M-Module, until July 28, when Foley‘s shift ended. There is no evidence that Foley was subjectively aware that Clouthier was actively suicidal at the time Foley left his shift. Foley‘s information about Clouthier‘s condition was limited. At the time Hanaway transferred Clouthier, she told Foley that Clouthier was suicidal, had “numerous prior attempts” at suicide, and needed to be on 15-minute checks. But Foley had no other information regarding Clouthier‘s mental state; Foley did not have access to
Nor does the evidence indicate that Foley‘s understanding of Clouthier‘s situation was willful ignorance of the obvious: Blush testified that she took Clouthier off the Observation Log because she believed the risk that Clouthier would commit suicide had decreased, although she was uncertain whether it had disappeared. On July 29, Brown visited Clouthier in the Observation Room and determined, based on her 37 years of clinical experience, that Clouthier was not actively suicidal.
[14] Although Foley did not note Blush‘s instructions to keep Clouthier in the Observation Room in the Red Book or communicate these instructions to other deputies, Foley‘s behavior towards Clouthier was not otherwise indicative of deliberate indifference. Foley followed Hanaway‘s instructions to check on Clouthier every 15 minutes until Blush released Clouthier from the Observation Log. Moreover, Foley complied with Blush‘s instructions to keep Clouthier in the Observation Room; indeed, Clouthier did not leave that room until four days after Foley‘s shift ended.
When Foley returned on August 1, Clouthier had been moved into M-Module‘s general population. On this second shift, Foley “noted nothing unusual” and “saw nothing in [Clouthier‘s] behavior or in his record that [would] lead [Foley] to believe that [Clouthier] was at risk for suicide.” The Clouthiers adduced testimony from Clouthier‘s cell mate, Watkins, that when Foley took Watkins out for free time on August 1, Foley “sure should have been able” to see the knotted sheet hanging over the edge of Clouthier‘s bed. But Watkins did not allege that Foley had in fact seen the knotted sheet, and the Clouthiers adduced no evidence to that effect.8 Foley‘s testimony that he did not see the knotted sheet is therefore undisputed. Again, there is insufficient circumstantial evidence that Foley was subjectively aware of a substantial risk of harm to Clouthier and deliberately ignored it. See Gibson, 290 F.3d at 1188. Because “the record taken as a whole could not lead a rational trier of fact to find for” the Clouthiers, Ricci v. DeStefano, 129 S. Ct. 2658, 2677 (2009) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)), summary judgment in favor of Foley was proper.
V
We next turn to the Clouthiers’ argument that the district court erred in granting summary judgment in favor of the County. Although the Clouthiers frame their argument in different ways, their claim amounts to the assertion that the
We first examine the legal framework for this claim. The Clouthiers may recover from the County under
Second, under certain circumstances, a local government may be held liable under
“Only where a failure to train reflects a ‘deliberate’ or ‘conscious’ choice by a municipality—a ‘policy’ as defined by our prior cases—can a city be liable for such a failure under
In virtually every instance where a person has had his or her constitutional rights violated by a city employee, a
§ 1983 plaintiff will be able to point to something the city “could have done” to prevent the unfortunate incident. Thus, permitting cases against cities for their “failure to train” employees to go forward under§ 1983 on a lesser standard of fault would result in de facto respondeat superior liability on municipalities—a result we rejected in Monell. It would also engage the federal courts in an endless exercise of second-guessing municipal employee training programs. This is an exercise we believe the federal courts are ill suited to undertake, as well as one that would implicate serious questions of federalism.
[16] Third, a local government may be held liable under
The Clouthiers identify two principal deficiencies in the County‘s procedures. First, they allege that the custodial staff did not comply with the County‘s written policy requiring mental health staff approval for moving a detainee into the general population. Compounding this problem, the Clouthiers allege, was an inadequate system of communication between mental health staff and custodial staff regarding when a detainee could be moved from an observation cell. Second, the Clouthiers allege that the County‘s jail was understaffed, resulting in mental health staff failing to observe mentally ill detainees with sufficient frequency to ensure their safety. The Clouthiers make the additional argument that the County ratified the constitutional violations of its employees.
[17] To evaluate the claim that County employees did not rigorously implement the policy governing movement of an inmate out of an observation cell into the general population, we must begin with the policy itself. The County‘s written policy, Sheriff‘s Policy 13.10(II)(B) states, in pertinent part:
2) If the inmate is not referred to the In-Patient Psychiatric Unit by medical staff, one of three alternative actions will be employed . . . .
a. Open observation
. . .
If Mental Health staff determines the inmate can be housed with other inmates, the inmate may be housed at MDF or WCDF and shall be based on Mental Health staff‘s recommendation.
. . .
Deputies will report any changes in behavior to Medical/Mental Health staff.
While this language does not expressly preclude deputies from moving inmates into the general population without mental health staff approval, the language suggests that deputies would ordinarily obtain a recommendation from mental health staff before making such a move.
Other evidence in the record indicates that an inmate is moved into general population through a consultation between mental health staff and custodial staff. Captain Pascoe testified that “movement of inmates on M Module is a consultation between health services staff who‘s [sic] assigned there and the deputy . . . . If an officer had an indi
[18] Drawing all inferences in favor of the Clouthiers, a reasonable jury could conclude that the custodial and mental health staff were deficient in their implementation of the County‘s written policy, because the custodial staff failed to ensure they had the approval of mental health staff before moving Clouthier. However, that does not create a triable issue of fact on the question whether the County itself is liable for this deficiency. There is no evidence that the County had a longstanding custom or practice of moving detainees from an observation cell into general population without consultation with mental health staff or contrary to their recommendations. Nor is there evidence of a longstanding custom or practice of miscommunication between mental health staff and custodial staff. There is no evidence that the County was on actual or constructive notice that deficiencies in the implementation of its policy would likely result in a constitutional violation.
Moreover, nothing in the record indicates that improper transfers of suicidal inmates happened so frequently that the need for corrective measures “must have been plainly obvious
[19] The Clouthiers point to the affidavit of an expert, who opined, based on a review of the incident, that the mental health staff and custodial staff did not share their records and “did not work together as a team.” The expert also stated there was a “disconnect” between the mental health staff and the custodial staff and noted “an inadequacy in training which appears to be purposely indifferent to the mental health needs of pre-trial detainees.” But such conclusory assertions are insufficient to avoid summary judgment. Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007) (“Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment.“). Moreover, the factual basis for the expert‘s declaration is limited to the “sequence of events and the statements of the participants” surrounding Clouthier‘s transfer into the general population. The expert‘s report does not address the key question whether the alleged “disconnect” was so obvious and “the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the [local government] can reasonably be said to have been deliberately indifferent” to the problem. Canton, 489 U.S. at 390.
The Clouthiers also failed to dispute the County‘s evidence that it was not deliberately indifferent to the needs of mentally ill pretrial detainees. The County had reasonable and well-established written policies for handling detainee mental health needs, which the Clouthiers concede “pass constitutional muster.” In addition, the record indicates the County invested considerable resources in developing its policies and training its employees, including requiring all new deputies to complete an eight-week training course and an annual refresher course concerning people with mental disorders. The County‘s mental health staff are licensed mental health practitioners with graduate degrees, and they receive both on-the-job training and training in new developments in their areas of expertise.
[20] There is little doubt the Clouthiers identified a series of missteps and miscommunications that led to Clouthier‘s transfer to the general population while he was suicidal. Yet, the Clouthiers have pointed to no evidence that would allow a reasonable jury to conclude the County had caused the improper transfer through deliberate omissions or the implementation of longstanding practices or customs. Accordingly, the Clouthiers have not adduced evidence creating a triable issue of material fact on the crucial issues for County liability.
B
To support their second argument, that the County‘s practices were deficient because the County lacked adequate mental health staffing, the Clouthiers point to Kramer‘s testimony: “We don‘t stipulate how often people are to be seen. We don‘t have the staff to put in those sorts of guidelines.” Drawing all inferences in favor of the Clouthiers, this testimony indicates that the County did not require mental health staff to observe mentally ill detainees on a set schedule, which was inconsis
[21] However, the Clouthiers failed to adduce evidence that the County was on actual or constructive notice of a problem with mental health understaffing that would amount to a constitutional tort. Further, there was no evidence that this alleged understaffing problem led to repeated violations of inmates’ constitutional rights or that the County was aware of and acquiesced in a pattern of constitutional violations. See Canton, 489 U.S. at 398 (O‘Connor, J., concurring in part and dissenting in part) (stating plaintiff failed to show a triable issue where no evidence indicated “that there had been past incidents of ‘deliberate indifference’ to the medical needs of emotionally disturbed detainees or that any other circumstance had put the city on actual or constructive notice“). The Clouthiers’ claim thus amounts to the argument that “an injury or accident could have been avoided” if mental health staffers had made more frequent observations of Clouthier. Canton, 489 U.S. at 391. This is precisely the argument against which the Supreme Court cautioned in Canton. Id. at 392
C
[22] Finally, the Clouthiers argue the County is liable for the constitutional torts of its employees because it ratified the employees’ unconstitutional acts. The Clouthiers have not developed their argument on this point, but merely state that the County ratified their employees’ conduct by failing to discipline the employees who violated Clouthier‘s constitutional rights. The Clouthiers adduced evidence that, although Kramer had “the power to impose any discipline on any of the
Taking all evidentiary inferences in favor of the Clouthiers, they have at most shown that the County could have better implemented its policies. But as the Supreme Court has indicated, “[i]n virtually every instance where a person has had his or her constitutional rights violated by a city employee, a
VI
We hold that the district court did not err in holding that the individual defendants in this case could not be held liable for failing to prevent Robert Clouthier‘s suicide unless the defendants had a punitive intent, which in the context of failing to prevent harm requires a determination whether the defendants
AFFIRMED in part, REVERSED in part, and REMANDED.
BLOCK, Senior District Judge, concurring in part and dissenting in part:
I concur in the majority opinion in all respects save one: I cannot agree that Deputy Foley is entitled to summary judgment.
The majority‘s conclusion with respect to Foley resolves issues that, in my view, should be decided by a jury. As for the “substantial risk” issue, although I appreciate that Foley‘s training suggested to him that Blush‘s decision to remove Clouthier from the Observation Log meant he was no longer a suicide risk, there must have been some reason why Blush also instructed him not to move Clouthier out of the Observation Room (assuming that the jury finds that such an instruction was given); the most obvious candidate is that she still believed him to be suicidal. Thus, a jury could reasonably conclude that Blush‘s instruction communicated to Foley that Clouthier still posed a substantial risk of serious harm to himself. See Farmer v. Brennan, 511 U.S. 825, 842 (1994) (“Whether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence.“).
I am also satisfied that a jury could reasonably find that Foley‘s failure to communicate Blush‘s instruction crossed
Finally, if a jury were to determine that Foley was a trained deputy charged with the responsibility of implementing a key suicide prevention measure (i.e., passing on instructions given by a mental health professional that a detainee at risk of suicide was to remain in the Observation Room), qualified immunity would not attach because such an officer could not reasonably have thought it was lawful to do nothing in response to such an instruction. See Conn v. City of Reno, 572 F.3d 1047, 1062 (9th Cir. 2009) (“When a detainee attempts or threatens suicide en route to jail, it is obvious that the transporting officers must report the incident to those who will next be responsible for her custody and safety. Thus, the constitutional right at issue here has been clearly established.“).