Kitchens v. Pierce et al

Filing 153

ORDER Granting Defendant Mims' 147 Cross-Motion for Summary Judgment signed by District Judge David C. Bury on 01/26/2015. CASE CLOSED. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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William Jackson Kitchens,

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Plaintiff,
vs.

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Margaret Mims, et al.,

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Defendants.

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CV-05-1567-DCB

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ORDER

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Before the Court are the Plaintiff’s Motion for Summary Judgment and

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Defendant Mims’ Cross Motion for Summary Judgment1 or in the alternative

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Summary Adjudication.

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On March 25, 2010, this Court entered an Order and Judgment granting

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Defendants’ motions for summary judgment and denying Plaintiff’s motion

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for summary judgment.

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Appeals, on January 14, 2014, affirmed this Court’s ruling with reference

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to Defendant’s Johnson and the Transportation Defendants, but reversed

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on the Mims’ ruling, specifically, as follows:

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Plaintiff appealed and the Ninth Circuit Court of

Kitchens’ detention in Isolation reveals conditions that are
substantially worse than those of the criminal detainees in
administrative segregation, giving rise to a presumption of

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This motion was filed during the pendency of the appeal. After the
Mandate issued, this Court entered an Order requiring Defendant to file
a response to the pending motion. Defendant Mims also filed a cross
motion. This Court then entered the appropriate pro se warning order.

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punishment.
The County Defendants failed to rebut this
presumption because they have proffered only generalized jail
management
concerns
for
support...Because
the
County
Defendants failed to proffer evidence to rebut the presumption
of punishment, summary judgment in their favor was improper.
They may produce additional evidence to rebut the presumption
on remand.”
(Appeal No. 10-15737 at 78-3.)

In addition,

Because no policy from “higher authority” specified how SVPs
housed in Isolation or the Hole must be treated, a question of
material fact exists as to Mims’ authority to effect the
conditions afforded to SVPs in those locations.
In
particular, the issue is whether in the absence of a policy,
Mims, as the person who “oversaw jail operations:” and “in
charge of the Fresno County Jail,” had the authority to ensure
the SVPs would be afforded better conditions than others
housed in Isolation or the Hole. A reasonable trier of fact
could conclude that she controlled Kitchens’ circumstances of
confinement and is thus potentially liable under a supervisor
theory of liability.

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(Appeal No. 10-15737 at 78-4-5.)

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This Court will now address these remaining issue with reference to

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the remaining Defendant, Mims.

All other issues2 have been resolved and

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will not be addressed in this Order.

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PROCEDURAL BACKGROUND

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The Court will adopt the Defendants’ recitation of the procedural

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background in part, as follows:

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Plaintiff, a civil detainee appearing in propria persona,
filed his initial complaint on December 5,2005. Doc. No. 1. In
the complaint, Plaintiff set forth civil rights claims
pursuant to 42 U.S.C. § 1983 based on his stay at the Fresno
County Jail (“Jail”) between August 25, 2005, and October 11,
2005.
Plaintiff alleges that as a pre-trial civil detainee pursuant
to California’s Sexually Violent Predator(“SVP”) laws, he was
improperly classified and housed at the Jail. Plaintiff also
alleges he was subjected to an improper visual body cavity
search, denied access to the Jail’s law library, and was
denied mental health treatment.

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Plaintiff attempts to reassert the following issues that have
previously been resolved: library access, treatment access, strip search,
conditions of transport.
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On August 5, 2008, Plaintiff filed his First Amended
Complaint. Doc. No. 75. On August 26, 2008, Defendant Mims
filed her Answer. Doc. No. 78. On March 9, 2009, Plaintiff
filed a Motion for Summary Judgment. Doc. No. 90. On June 15,
2009, Defendant Mims filed her Motion for Summary Judgment.
Doc. Nos. 99, 101. On the same day, Defendant Mims filed her
opposition to Plaintiff’s Motion for Summary Judgment. Doc.
No. 95.
On July 3, 2009, Defendant Mims was served with a brief in
opposition to her Motion for Summary Judgment. However, the
brief was not filed with the court. On July 6, 2009, Plaintiff
filed a reply to Defendant Mims’ opposition to his Motion for
Summary Judgment. Doc. No. 110. The next day, this Court
issued an order directing Plaintiff to file an opposition to
Defendant Mims’ Motion for Summary Judgment. Doc. No. 111. On
July 13, 2009, an order was issued directing Plaintiff to
supplement his Motion for Summary Judgment with missing
exhibits. Doc. No. 114. On the same day, Plaintiff was ordered
to file an opposition to Defendant Mims’ Motion for Summary
Judgment by August 7, 2009. Doc. No. 115.

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On July 21, 2009, Plaintiff filed a separate statement of
material facts in opposition to Defendant Mims’ Motion for
Summary Judgment. Doc. No. 116. However, the brief served on
Defendant Mims was not filed. On August 13, 2009, Defendant
Mims filed her reply papers. Doc. No. 122. Attached to Defense
counsel’s declaration was a copy of Plaintiff’s unfiled
opposition brief. The matter was taken under submission
without a hearing.
On March 25, 2010, this Court issued a single order on the
three pending motions for summary judgment. Doc. No. 124.
Defendant Mims’ Motion for Summary Judgment was granted, as
was the motion of former co-defendants Transcor America.
Plaintiff’s Motion for Summary Judgment was denied. Plaintiff
timely filed an appeal of the Court’s order.

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(DMSJ at 4.)

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On June 14, 2013, the Ninth Circuit Court of Appeals affirmed the

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district court’s summary judgment in favor of Defendant Johnson and the

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Transportation Defendants and reversed the district court’s summary

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judgment with respect to Defendant Mims.

(Memorandum, No.10-15737.)

On

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January 14, 2014, the Ninth Circuit panel voted to deny the petition for

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panel rehearing (2-1)(Judge Wallace dissented and recommended an en banc

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rehearing on the issue of Defendant Mims).

(Order Amending Memorandum,

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10-15737). An Amended Memorandum was filed January 14, 2014 and the
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Mandate issued February 4, 2014. The Ninth Circuit, reversed the Court’s

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order granting Defendant Mims’ Motion for Summary Judgment on the grounds

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“[a]

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[Plaintiff’s] circumstances of confinement and is thus potentially liable

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under a supervisor theory of liability.” Kitchens v. Pierce, 2014 WL

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812896,

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Defendant Mims possessed final policy making authority over the policies

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and/or procedures governing the privileges provided to SVP detainees at

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the Jail. The Ninth Circuit also held that Defendant Mims could produce

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additional evidence to rebut the presumption of punishment on remand. Id.

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at *5.

reasonable

*5

trier

(9th

Cir.

of

fact

2014).

could

In

conclude

particular,

that

the

she

issue

controlled

was

whether

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While the Ninth Circuit appeal was pending, on July 30, 2013,

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Plaintiff filed another motion for summary judgment (PMSJ). (Doc. 136.)

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On April 14, 2014, after the Ninth Circuit issued its decision, this

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Court ordered Defendant Mims to respond to Plaintiff’s motion for summary

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judgment by May 29, 2014. On May 29, 2014, Defendant Mims filed an

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Opposition (Doc. 145) and a Request for Judicial Notice (Doc. 146).

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May 30, 2014, Defendant Mims filed a cross motion for summary judgment

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(DMSJ). (Doc. 147.)

This Court then entered the requisite pro se warning

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order. (Doc. 148.)

Plaintiff filed an Opposition and a Reply on July 11,

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2014. (Doc. 149, 150.)

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Opposition and on July 31, 2014, Defendant Mims filed a Reply. (Docs.

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151, 152) and a request to strike Plaintiff’s reply.

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On

On July 14, 2014, Defendand Mims filed an

FACTUAL BACKGROUND

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On August 12, 2005, Fresno County Superior Court issued an order to

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transport Plaintiff from Atascadero State Hospital to Gresno County Jail

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for a court hearing regarding Plaintiff’s legal status as a SVP.

On

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August 25, 2005, Plaintiff was transported to Fresno County Jail.

On

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August 26, 2005, Plaintiff was classified and housed in MSEGAJIA - 45-man

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open dormitory area.

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in Superior Court, where the judge ordered in continued detention as a

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SVP.

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Isolation.

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placed in a two man cell.

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on October 11, 2005.

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Sheriff assigned to Fresno County Jail.

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Isolation from September 5 - 18, 2005 (14 days) that raises the question

On August 29, 2005, Plaintiff made an appearance

On September 5, 2005, Plaintiff was reclassified and placed in
On September 18, 2005, Plaintiff was again reclassified and
Plaintiff was returned to Atascadero Hospital

During this time, Defendant Mims was an Assistant
It is Plaintiff’s time in

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of punishment.

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the question with reference to Defendant Mims authority to control the

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conditions in Isolation:

Did Mims have the authority to ensure that

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SVP’s

better

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Isolation?

would

And, the treatment of SVPs while housed in Isolation is

be

afforded

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conditions

than

others

housed

in

STANDARD OF REVIEW
A court must grant summary judgment “if the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.”

Fed. R. Civ. P. 56(a); see also Celotex

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Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

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initial

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identifying those portions of the record, together with affidavits, that

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it believes demonstrate the absence of a genuine issue of material fact.

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Celotex, 477 U.S. at 323.

responsibility

of presenting

The movant bears the

the basis for its motion

and

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If the movant fails to carry its initial burden of production, the

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nonmovant need not produce anything. Nissan Fire & Marine Ins. Co., Ltd.

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v. Fritz Co., Inc., 210 F.3d 1099, 1102-03 (9th Cir. 2000).

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movant

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nonmovant to demonstrate the existence of a factual dispute and that the

meets

its initial

responsibility,

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But if the

the burden shifts

to the

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fact in contention is material, i.e., a fact that might affect the

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outcome of the suit under the governing law, and that the dispute is

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genuine, i.e., the evidence is such that a reasonable jury could return

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a verdict for the nonmovant.

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242, 248, 250 (1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d

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1216, 1221 (9th Cir. 1995).

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issue of fact conclusively in its favor, First Nat’l Bank of Ariz. v.

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Cities Serv. Co., 391 U.S. 253, 288-89 (1968); however, it must “come

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forward with specific facts showing that there is a genuine issue for

Anderson v. Liberty Lobby, Inc., 477 U.S.

The nonmovant need not establish a material

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trial.”

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U.S. 574, 587 (1986) (internal citation omitted); see Fed. R. Civ. P.

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56(c)(1).

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Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475

At summary judgment, the judge’s function is not to weigh the
evidence and determine the truth but to determine whether there is a
genuine issue for trial.

Anderson, 477 U.S. at 249.

In its analysis,

the court must believe the nonmovant’s evidence and draw all inferences
in the nonmovant’s favor.

Id. at 255.

The court need consider only the

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cited materials, but it may consider any other materials in the record.

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Fed. R. Civ. P. 56(c)(3).

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Before

the

Court

are

cross-motions

for

summary

judgment.

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Cross-motions for summary judgment do not alter the summary judgment

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standard, but instead simply require the court to determine whether
either of the parties deserves judgment as a matter of law on the facts
that are not disputed.

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Fed.R.Civ.P. 56(c).
DISCUSSION

A. Punishment
“‘[W]hen a SVPA detainee is confined in conditions identical to,

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similar

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counterparts are held, we presume that the detainee is being subjected

to,

or

more

restrictive

that

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those

in

which

his

criminal

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to “punishment.”

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Second, ‘when an individual awaiting SVPA adjudication is detained under

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conditions

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following SVPA commitment, we presume the treatment is punitive.’ Id.,

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at 933. To rebut these presumptions, Defendants may establish that

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retaining

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justifications. Id. However, Defendants also have the burden of showing

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that retaining Plaintiff in T-Sep was not excessive in relation to the

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legitimate, non-punitive objective and why this purpose could not have

restrictive

Plaintiff

harsh

legitimate,

methods.

would

face

non-punitive

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Here, Plaintiff was previously adjudicated a SVP.

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less

individual

Cerniglia v. County of Sacramento, 2008 WL 1787855, *8 (E.D. Cal. 2008).

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and

served

the

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alternative

T-Sep

those

been

1.

by

in

than

10

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met

more

Jones v. Blanas, 393 F.2d 918, 932 (9th Cir. 2004).

Id.,

at

934-35.”

Classification and Housing at Fresno County Jail

On August 26, 2005, Plaintiff was classified and housed in MSEGAJ1A, a 45-man open dormitory area at the annex jail that contained
detainees who had been charged or were being prosecuted for sex offenses.
UMF No. 27-28.3 At the time, no one at the Jail knew that Plaintiff was

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a civil detainee. UMF No. 29. MSEG-AJ1A contained bunk beds, television,

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coffee, a telephone area, and access to an exercise area. UMF No. 30.

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It was the policy

and practice of the Jail to keep SVP’s

housed

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separately from pre-trial detainees. UMF No. 31. Plaintiff’s initial

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classification was based on the classification unit’s lack of sufficient
information related to Plaintiff’s SVP status. UMF No. 32. At the time
Plaintiff

was

classified,

the

classification

officer

did

not

have

information that Plaintiff was a pre-trial SVP. UMF Nos. 33-38.

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Plaintiff’s initial classification and housing in MSEG-AJ1A was not

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done for a punitive purpose. UMF No. 39. Plaintiff had more privileges

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Defendant’s undisputed material facts (UMF).
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(Doc. 145-1.)

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in MSEG-AJ1A than he had when he was properly housed as an SVP. UMF No.

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40.

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2.

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On August 29, 2005, Plaintiff appeared in front of Superior Court

Plaintiff’s Re-Classification

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Judge

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prejudice, and ordered that Plaintiff be housed pursuant to Penal Code

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§§4002(b) and 1610. UMF No. 41. There is no evidence that the Jail

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classification

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September

Gary

Austin,

5,

unit
2005.
unit

who

denied

found
UMF

out

No.

received

his

about

42.

On

writ

of

habeas

Plaintiff’s
September

knowledge

of

5,

corpus

SVP

status

2005,

Plaintiff’s

without

until

after

10

classification

SVP

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the

status,

Plaintiff was re-classified from MSEGAJ1A to Isolation. UMF No. 43.

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The Fresno County Jail did not have a separate housing unit for

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individuals civilly committed as SVP’s and/or individuals awaiting civil

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commitment as SVP’s. UMF No. 44. The Jail had a housing unit for ordinary
civil detainees; however, pursuant to California law, it was the policy
of the Jail not to house SVP’s with ordinary civil detainees. UMF No. 45.
Pursuant to the laws of the State of California individuals civilly

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committed as SVP’s and/or individuals awaiting civil commitment as SVP’s

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were not housed together with, or permitted to be in the same room as,

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criminal inmates or inmates awaiting criminal process and/or civil

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detainees at the Fresno County Jail. UMF No. 46

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The Fresno County Jail did not have a separate area, facility or
location where individuals civilly committed as SVP’s and/or individuals
awaiting civil commitment as SVP’s could safely and in compliance with
the laws of the State of California receive the same privileges provided

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to civil detainees or criminal inmates housed in general population. UMF

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No. 47.

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have additional staffing available to provide civilly committed SVP’s

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and/or individuals awaiting civil commitment as SVP’s with the same

Due to budgetary constraints, the Fresno County Jail did not

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privileges provided to civil detainees or criminal inmates housed in

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general population. UMF No. 48.

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In order to comply with the laws of the State of California

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individuals civilly committed as SVP’s and/or individuals awaiting civil

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commitment as SVP’s could only be housed in isolation or administrative

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segregation at the Fresno County Jail. UMF No. 49. Isolation is not a

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disciplinary cell area at the Jail, but merely a housing location for

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house alone/program alone inmates/detainees. UMF No. 50. Plaintiff’s re-

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classification from MSEG-AJ1A to isolation was not done for a punitive

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purpose. UMF No. 51.

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Individuals civilly committed as SVP’s and/or individuals awaiting

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civil commitment as SVP’s housed in isolation were provided with the same

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privileges as all individuals being housed in the isolation unit. UMF No.

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52. Plaintiff was housed in administrative segregation in order to comply
with the laws of the State of California requiring that individuals
awaiting civil commitment as sexually violent predators cannot be housed
and/or in the same room as criminal inmates, inmates awaiting criminal

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process and/or civil detainees. UMF No. 53. Plaintiff’s housing in

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isolation was the only option available at the time. UMF No. 54.

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3.

Plaintiff’s Second Re-Classification

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On September 18, 2005, Plaintiff was re-classified from Isolation

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to

MSEG-MJ3A4,

a

two-man

cell.

UMF

Nos.

55-56.

Plaintiff’s

re-

classification was based on the fact that the classification unit found
another SVP with whom Plaintiff was familiar (Rick Horn) that could be
housed with Plaintiff. UMF No. 57. Plaintiff had no objection to this

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arrangement. UMF No. 58. Plaintiff remained housed with Mr. Horn in MSEG

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until he left the Jail and returned to Atascadero. UMF No. 59. At no time

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was Plaintiff housed in the general population of the Jail. UMF No. 60.

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Plaintiff was housed in administrative segregation in order to comply
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with the laws of the State of California requiring that individuals

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awaiting civil commitment as sexually violent predators cannot be housed

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and/or in the same room as criminal inmates, inmates awaiting criminal

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process and/or civil detainees. UMF No. 61. Plaintiff was not housed in

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administrative segregation for a punitive purpose. UMF No. 62. Plaintiff

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was provided the same privileges as all of the individuals housed in

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administrative segregation. UMF No. 63.

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It is undisputed that the Jail, in compliance with the laws of the

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State of California had a policy of not housing SVP detainees, such as

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Plaintiff, with criminal or non-SVP civil detainees. UMF Nos. 44-46. As

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a result of this policy, on September 5, 2005, Plaintiff was re-

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classified

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alone/program alone inmates/detainees. UMF No. 43. On September 18, 2005,

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and

placed

in

the

isolation

housing

unit

with

house

Plaintiff was re-classified from isolation to administrative segregation
and

housed

with

another

SVP.

UMF

Nos.

55-59.

Plaintiff’s

housing

assignments were not punitive but rather were necessary based on the
existing conditions at the Jail. UMF Nos. 39; 61-63; Cal. Penal Code

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§4002(a)-(b); Jones v. Blanas, 393 F.3d at 934-935.

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At the time, there were no “alternative and less harsh methods” that

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reasonably could have been employed. The Jail did not have an additional

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facility or location where Plaintiff could have been held safely and in

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compliance with the laws of the State of California and receive the same
privileges provided to civil detainees or criminal detainees housed in
general population. UMF Nos. 44; 47; 48; 61-63. Even if the Jail had an
additional area, facility or location, due to budgetary restraints, the

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Jail did not have additional staff to provide private or individualized

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security which would have been necessary to ensure Plaintiff’s safety and

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as required by the laws of the State of California to prevent his

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interaction with criminal and/or civil detainees. UMF No. 48; Peralta v.
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Dillard, 744 F.3d 1076, 1083 (9th Cir. 2014). Instead, the only locations

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available to house and safely provide SVP detainees with privileges was

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either isolation for a single SVP detainee or administrative segregation

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for two SVP detainees. UMF Nos. 44; 47; 49; 54. By law Plaintiff could

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not have been housed with ordinary civil detainees. UMF No. 45; Hubbart

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v. Superior Court, 19 Cal.4th 1138, 1168-70 (1999); see also People v.

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Green, 79 Cal.App.4th 921, 924-927 (2000). As such, it is undisputed that

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there was nothing punitive about Plaintiff’s housing in isolation and/or

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administrative segregation.4

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The Court finds that the uncontradicted material facts support a

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finding that Defendant has rebutted the presumption of a punitive purpose

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and Plaintiff’s treatment was not excessive in relation to Defendant’s

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legitimate, non-punitive objectives.

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B.

Mims’ Supervisory and Policy Making Roll
1.

Rules, Regulations and Policies

At all times relevant to this litigation, Defendant Mims was the
Assistant Sheriff responsible for the day-to-day operations of the Jail.

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UMF No. 5. Prior to this lawsuit being filed, Defendant Mims had no

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knowledge that Plaintiff was housed at the Fresno County Jail. UMF No.

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6. Further, Defendant Mims had no direct or indirect involvement with any

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decisions regarding Plaintiff’s stay at the Jail. UMF Nos. 7-15. This

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included

where

Plaintiff

was

housed;

Plaintiff’s

privileges;

or

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Plaintiff also contends that he should have been housed at a
different type of facility where the conditions of confinement are
generally more pleasant than a jail. However, Plaintiff ignores the fact
that he was ordered by the Fresno County Superior Court to be housed at
the Jail. The law recognizes that SVPs will be housed at jails for
limited periods of time while SVP proceedings are taking place. Halbert
v. Herbert, 2008 WL 4460213, *7 (N.D. Cal. 2008). Plaintiff’s remedy in
this situation was to petition the Superior Court for an order changing
his confinement. Cal. Penal Code § 4002(b). He did not do so.
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Plaintiff’s classification. Ibid.

2

In 2005 and at all times relevant to this litigation, Defendant Mims

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did not possess final policy making authority over any of the policies

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and/or procedures governing the Fresno County Jail. UMF No. 16. Plaintiff

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has conceded that the Sheriff of the County of Fresno, not Defendant Mims

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was the policymaker at the relevant times. UMF No. 17.

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At the relevant times, Defendant Mims was responsible only for

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implementing and enforcing the policies and procedures that were set

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forth by the Sheriff. UMF No. 18. Failure to implement and/or enforce the

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policies and procedure set forth by the Sheriff could result in either

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Defendant Mims’ demotion or termination. UMF No. 19.

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In 2005 and at all times relevant to this litigation, Defendant Mims

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did not possess final policy making authority over any of the following:

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(1) policies and/or procedures referring and/or relating to the housing
of inmates awaiting criminal process, criminally convicted inmates, civil
detainees, civil detainees awaiting commitment as SVP’s and/or civil
detainees committed as SVP’s at the Fresno County Jail (UMF No. 20); (2)

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policies and/or procedures referring and/or relating to the privileges

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provided to inmates awaiting criminal process, criminally convicted

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inmates, civil detainees, civil detainees awaiting commitment as SVP’s

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and/or civil detainees committed as SVP’s at the Fresno County Jail (UMF

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No. 21); (3) policies and/or procedures referring and/or relating to the
privileges not provided to inmates awaiting criminal process, criminally
convicted inmates, civil detainees, civil detainees awaiting commitment
as SVP’s and/or civil detainees committed as SVP’s at the Fresno County
Jail (UMF No. 22).

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Pursuant to the laws of the State of California, the duly elected

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Sheriff of the County of Fresno was the only individual who possessed

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final policy making authority over the following: (1) policies and/or
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procedures governing the Fresno County Jail (UMF No. 23); (2) policies

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and/or procedures referring and/or relating to the housing of inmates

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awaiting criminal process, criminally convicted inmates, civil detainees,

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civil

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committed as SVP’s at the Fresno County Jail (UMF No. 24); (3) policies

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and/or procedures referring and/or relating to the privileges provided

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to inmates awaiting criminal process, criminally convicted inmates, civil

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detainees,

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detainees committed as SVP’s at the Fresno County Jail (UMF No. 25); (4)

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policies and/or procedures referring and/or relating to the privileges

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not provided to inmates awaiting criminal process, criminally convicted

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inmates, civil detainees, civil detainees awaiting commitment as SVP’s

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and civil detainees committed as SVP’s at the Fresno County Jail. UMF No.

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detainees

awaiting

civil

commitment

detainees

as

awaiting

SVP’s

and

commitment

as

civil

SVP’s

detainees

and

civil

26.
2.

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No Admissible Evidence Establishing Supervisor Liability

Plaintiff has brought suit against Defendant Mims in her individual

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capacity as supervisor at the Jail. Doc. No. 75. As such, the central

17
issue

currently

before

the

Court

is

whether

Plaintiff

presented

18
sufficient undisputed material facts and admissible evidence to establish

19
a

valid

claim

of

supervisor

liability

against

Defendant

Mims.

20
“[V]icarious liability is inapplicable to Bivens and § 1983 suits, a

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plaintiff must plead that each Government-official defendant, through the
official’s

own

individual

actions,

has

violated

the

Constitution.”

Hydrick v. Hunter, 669 F.3d 937, 940 (9th Cir. 2012) (quoting Iqbal v.
Ashcroft, 556 U.S. 662 (2009)). In order to plead an individual capacity

25

claim against Defendant Mims pursuant to § 1983, Plaintiff must establish

26

either (1) Defendant Mims was “personally involved in a constitutional

27

violation, or (2) there was a ‘sufficient causal connection’ between

28

[her] wrongful conduct and the constitutional violation.” Lacey v.
- 13 -

1

Maricopa County, 649 F.3d 1118, 1136 (9th Cir. 2011).

2

Plaintiff must prove that Defendant Mims personally participated in

3

the alleged constitutional violations. Leer v. Murphy, 844 F.2d 628, 633

4

(9th Cir. 1988); Jones v. Williams, 297 F.3d 930, 935 (9th Cir. 2002).

5

“[P]ersonal involvement could include ‘culpable action or inaction in the

6

training, supervision, or control of ... subordinates, ... acquiescence

7

in the constitutional deprivations of which the complaint is made, or

8

conduct that showed a reckless or callous indifference to the rights of

9

others.” Lacey, 649 F.3d at 1136. “[A] policy is a deliberate choice to

10

follow a course of action‘made from among various alternatives by the

11

official or officials responsible for establishing final policy with

12

respect

13

Cincinnati, 475 U.S. 469, 483-84 (1986).

14
15
16

to

the

subject

matter

in

question.’”

Pembaur

v.

City

of

Here, the subject matter in question is privileges afforded SVP’s
at the Jail. “The identification of policymaking officials is a question
of state law.” St. Louis v. Paprotnik, 485 U.S. 112, 124 (1988). In the
State of California, the county sheriff is responsible for administering

17
and operating all county jails. Brandt v. Board of Supervisors, 84

18
Cal.App.3d 598, 601 (1978), County of Los Angeles v. Superior Court, 68

19
Cal.App.4th 1166, 1175-76 (1998) and Bougere v. County of Los Angeles,

20
141 Cal.App.4th 237, 242 (2006)). The Legislature has provided county

21
22
23
24

sheriffs with broad authority to manage county jails. Cortez v. County
of Los Angeles, 294 F.3d 1186, 1190 (9th Cir. 2002).
Also, pursuant to statute, the county sheriff is the sole and
exclusive authority to administer/operate the county jail. Id.; Cal. Gov.

25

Code §§ 26605 & 26610 and Cal. Pen. Code § 4000. California Code of

26

Regulations,

27

facility/system administrator as “the sheriff, chief of police, chief

28

probation

Title

officer,

15,

or

which

other

governs

official
- 14 -

the

charged

Jail,

by

defines

law

with

the

the

1

administration of a local detention facility/system.” Cal. Code Regs.

2

Tit.

3

responsible for creating and implementing all policies regarding inmate

4

housing and segregation. Cortez, 294 F.3d at 1190; Cal. Code Regs. Tit.

5

15 §§ 1050 & 1053. This also includes policies regarding segregating

6

inmates whose safety may be at risk. Cal. Code Regs. Tit. 15 §§ 1052

7

&1053.

15

§§

1006

&

1010.

As

administrator,

the

county

sheriff

is

8

In addition to housing, Title 15 governs the creation of policies

9

and procedures regarding privileges at a county jail. Pursuant to Title

10

15, the county sheriff is responsible for creating and implementing all

11

policies regarding privileges. Cal. Code Regs. Tit. 15 §§ 1061-1072.

12

Also, the county sheriff is responsible for developing and publishing a

13

policies and procedures manual addressing all of the requirements of

14
15
16

Title 15; which shall be made available to all employees. Cal. Code Regs.
Tit. 15 § 1029. The Ninth Circuit has long recognized and enforced these
statutes and precedent. Cortez, 294 F.3d at 1190.
Thus, pursuant to California law and binding precedent, the Sheriff,

17
not Defendant Mims, was the only individual who possessed final policy

18
making authority regarding the housing of Plaintiff at the Jail. UMF Nos.

19
16-26. Also, the Sheriff, not Defendant Mims, was the sole individual

20
with final policy making authority regarding policies and/or procedures

21
22
23
24
25

governing the privileges provided to or not provided to Plaintiff while
he was staying at the Jail. Ibid. Therefore, the undisputed material
facts establish that Defendant Mims did not create nor have any final
policy

making

authority

regarding

the

policies

and/or

procedures

governing Plaintiff’s housing and/or privileges at the Jail.

26

Plaintiff was required to present sufficient affirmative evidence

27

that would allow a rational finder of fact to find in his favor by a

28

preponderance of the evidence. Anderson, 477 U.S. at 254; Mt. Healthy
- 15 -

1

City Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287

2

(1977). Bald assertions, argument and theories are insufficient. Galen

3

v. County of Los Angeles, 477 F.3d 652, 658 (9th Cir. 2007); British

4

Airways Bd. v. Boeing Co., 585 F.2d 946, 952 (9th Cir. 1978). Plaintiff

5

failed to meet this burden. Plaintiff bore the burden of demonstrating

6

that

7

possessed final policy making authority and that she created the specific

8

policy which resulted in the alleged constitutional violation. Pembaur,

9

475 U.S. at 483-84; Edgerly v. City and County of San Francisco, 599 F.3d

10

946, 961-62 (9th Cir. 2010). As discussed above, Defendant Mims by law

11

did not possess final policy making authority at the Jail. UMF. Nos. 16-

12

26. Also, the record is wholly devoid of any admissible evidence negating

13

the statutory mandate that the duly elected Sheriff of the County of

14
15
16

the

undisputed

material

facts

establish

that

Defendant

Mims

Fresno was the only individual with final policy making authority at the
jail. Ibid. In fact, Plaintiff previously conceded this issue. UMF. No.
17.
Plaintiff

failed

to

present

sufficient

affirmative

admissible

17
evidence that would allow a rational finder of fact to find by a

18
preponderance of the evidence that Defendant Mims possessed final policy

19
making authority regarding the privileges provided to or not provided to

20
Plaintiff at the Jail. Furthermore, the Ninth Circuit has long held that

21
22
23
24

a

supervising

law

enforcement

officer

cannot

be

held

liable

as

a

policymaker pursuant to section 1983 for merely being familiar with
policies and procedures, and implementing said policies as required by
their supervisor. Edgerly, 599 F.3d at 961-62. Thus, a plaintiff is

25

required to present sufficient affirmative evidence establishing that the

26

constitutional violation was the result of an official policy created by

27

a policymaker

28

Pembaur, 475 U.S. at 483-84; Waggy v. Spokane County Washington, 594 F.3d

who

possessed

final authority

- 16 -

to create the policy.

1

707, 713 (9th Cir. 2010).

2

Under the controlling law, a county sheriff is the final policymaker

3

when acting in their role as administrator/operator of a county jail.

4

Streit v. County of Los Angeles, 236 F.3d 552, 564-65 (9th Cir. 2001);

5

Cortez, 294 F.3d at 1189-90; Brandt, 84 Cal.App.3d at 601; County of Los

6

Angeles, 68 Cal.App.4th at 1175-76; Bougere, 141 Cal.App.4th at 242; Cal.

7

Gov. Code § 26605; Cal. Pen. Code § 4000. Also, a county sheriff is

8

required by law to create all policies regarding privileges at a county

9

jail. Cal. Code Regs., tit. 15 §§ 1006 &1061-1072.

10

Defendant Mims by law did not possess any policy making authority;

11

rather, she was required to enforce the policies and procedures regarding

12

housing and/or privileges set forth by the Sheriff. UMF. Nos. 16-19.

13

Defendant Mims was responsible only for the day-to-day operations of the

14
15
16

Jail. UMF No. 5. Also, failure to implement and/or enforce the policies
and procedures created by the Sheriff could have resulted in Defendant
Mims being demoted or terminated. UMF. No. 19. Therefore, she cannot be
held liable pursuant to section 1983 for merely enforcing or implementing

17
the Sheriff’s required policies and/or procedures. Edgerly, 599 F.3d at

18
961-62.

19
In a government-operated bureaucratic institution, such as a county

20
jail, there is no underlying basis to make the assumption that the

21
22
23
24

assistant sheriff could unilaterally implement an internal jail policy
of treating SVPs housed in Isolation differently from other inmates
housed in Isolation.

Absent a specific directive or policy from her

superiors, it is unreasonable to hold the assistant sheriff charged with

25

overseeing the day-to-day operations of a county jail as capable of

26

ensuring that SVPs are afforded better conditions than others housed in

27

Isolation. There is no such policy that exists in this instance and an

28

assistant sheriff is not a policy maker.
- 17 -

1

CONCLUSION

2

Based on the above, the Court finds that there are no material

3

questions of fact precluding entry of summary judgment on either the

4

issue of punishment or Mims’ supervisory liability.

5

resolution requires attention to the applicable state and federal laws.

6

In

7

presented to a trier of fact.

8

innuendo, which is not a substitute for admissible evidence warranting

9

a trial.

addition,

Plaintiff

offers

no

admissible

In both cases, a

evidence

that

can

be

Plaintiff only offers speculation and

There is no evidence to raise the question that Mims may have

10

had policy-making authority and there is no legal basis for finding

11

liability based on respondeat superior. Ashcroft v. Iqbal, 556 U.S. 662,

12

676 (2009).

13

final

14
15
16

There is uncontradicted evidence that Mims

policy

making

authority

over

any

policies

did not possess

and/or

procedures

governing Plaintiff’s housing or privileges while at the Jail. Further,
Plaintiff was classified and housed at the Fresno County Jail according
to applicable law and policy that Mims was not involved in creating.
Accordingly,

17
IT IS ORDERED that Plaintiff’s Motion for Summary Judgment (Doc.

18
136) is DENIED.

19
IT IS FURTHER ORDERED that Defendant Mims’ Cross-Motion for Summary

20
Judgment (Doc. 147) is GRANTED; Defendant’s request for judicial notice

21
22
23
24

(Doc. 146) is GRANTED; and, Defendant’s request to strike (Doc. 151) is
DENIED.
//
//

25

//

26

//

27

//

28

//
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1

IT IS FURTHER ORDERED that the Clerk’s Office shall file a separate

2

Final Judgment in conformance with this Order and terminate this action.

3

DATED this 26th day of January, 2015.

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