Noonkester v. Tehama County Sheriff, et al

Filing 76

ORDER signed by Chief Circuit Judge Alex Kozinski on 7/21/2011. Court is DENYING defendants' 62 Motion for Summary Judgment on Noonkester's claims regarding access to dayroom and exercise yard while cellside; detention cellside when high- security pretrial detainee was held in SHU; delayed medical treatment for DVT and use of restraints during transport between Jail and Courthouse. Court is GRANTING 62 Summary Judgment to defendants on all other claims and to Sheriff Parker in his personal capacity on all claims. Court orders parties to contact Sujean Park with Alternative Dispute Resolution Program to move forward with mediation. (cc: S. Park, ADRP Director) (Marciel, M)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA

RILEY NOONKESTER,
Plaintiff,

No. 2:06-cv-00306-AK

v.
ORDER
TEHAMA COUNTY SHERIFF, et al.,
Defendants.

Background
Riley Noonkester is in civil detention in a California hospital as a sexually
violent predator (SVP). His complaint under 42 U.S.C. § 1983 alleges
constitutional violations during his periodic confinement at Tehama County Jail in
2003, 2005 and 2006 for re-commitment as an SVP. Noonkester originally sued in
2003 with two co-plaintiffs, but their claims were severed and each was instructed
to file an amended complaint. When Noonkester failed to do so, his case was
dismissed. A co-plaintiff’s case proceeded to summary judgment on many of the
same claims, and the magistrate judge made extensive findings and
recommendations, Sumahit v. Parker, No. CIV S-03-2605, 2009 WL 2879903
(E.D. Cal. Sept. 3, 2009), that were adopted in full by the district judge, No. CIV

page 2
S-03-2605, 2009 WL 4507723 (E.D. Cal. Dec. 1, 2009). Given the similarities
between the cases, throughout this order I reference the rulings in Sumahit where
relevant.
Noonkester eventually filed a new complaint. Defendant TransCor America
filed a motion to dismiss, which was granted. The other defendants—the county
and its sheriff—moved for summary judgment. The court now grants in part and
denies in part the motion for summary judgment, and orders mediation.

Analysis
1. Contrary to local rule 260(b), Noonkester failed to “reproduce the
itemized facts in the Statement of Undisputed Facts and admit those that are
undisputed and deny those facts that are disputed, including with each denial a
citation.” E.D. Cal. R. 260(b). But because Noonkester is a pro se civil detainee,
the court “must consider as evidence in his opposition to summary judgment all of
[his] contentions offered in motions and pleadings, where such contentions are
based on personal knowledge and set forth facts that would be admissible in
evidence, and where [he] attested under penalty of perjury that the contents . . . are
true and correct.” Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004).

page 3
2. Noonkester filed his complaint on February 13, 2006. Section 1983
doesn’t contain a statute of limitations, so this court applies the forum state’s
statute of limitations for personal injury actions and its law of tolling. See
Canatella v. Van de Kamp, 486 F.3d 1128, 1132–33 (9th Cir. 2007). Under
California’s two-year statute of limitations, anything that occurred before February
13, 2004, is barred. Cal. Civ. Proc. Code § 335.1. Statutory tolling doesn’t apply
to civil detainees. See Blanas, 393 F.3d at 927. Equitable tolling is applicable to a
“continuously confined civil detainee who has pursued his claim in good faith.”
Id. at 930; see also Fink v. Shelder, 192 F.3d 911, 916 (9th Cir. 1999). But
Noonkester didn’t face the types of major obstacles to pursuing his claim found in
Blanas, and doesn’t offer any explanation for why he failed to file an amended
complaint after his first suit was severed, so he doesn’t qualify for equitable
tolling. Below, I note which claims are barred by the statute of limitations.

3. Noonkester alleges that he was treated as a prisoner even though he was a
civil detainee. He relies on Blanas for the proposition that civil detainees “are
entitled to more considerate treatment and conditions of confinement than
criminals whose conditions of confinement are designed to punish.” Blanas, 393
F.3d at 931 (quoting Youngberg v. Romeo, 457 U.S. 307, 321–22 (1982)). Blanas
held that, under the Fourteenth Amendment, SVPs awaiting commitment or, like

page 4
Noonkester, re-commitment deserve conditions of confinement that aren’t punitive.
Id. at 932. But such detainees are subject to legitimate, non-punitive conditions
designed for “ensuring a detainee’s presence at trial, maintaining jail security, and
effective[ly] manag[ing] a detention facility.” Id. Under Blanas, if a civil detainee
is treated the same as a penal inmate or pretrial criminal detainee, that treatment is
presumed punitive. Id. at 934. But a defendant’s explanation of legitimate, nonpunitive purposes can rebut that presumption. Id.

Conditions of Confinement
SVPs must be housed separately because their convictions for sexual
offenses against children leave them at risk of assault from other inmates. Tehama
County is small and its jail doesn’t have a separate facility for the occasional SVP
housed there temporarily for re-commitment hearings. So the County houses SVPs
in the least restrictive custody available: the Special Unit House (SHU) or
“cellside” when the SHU is unavailable. Clay Decl. ¶¶ 3–5.
When Noonkester was held cellside, he could use the shared dayroom only
when no penal inmates were there (for his own protection), and he generally got
only an hour per day there, though some days he didn’t even get that. He
complains that this amounted to punitive treatment worse than that of penal
inmates. Amended Complaint, Memorandum of Points and Authorities at 5–6, 8.

page 5
Under Blanas, because Noonkester received the same or worse access to the
dayroom as penal inmates, the treatment is presumed punitive. Defendants allege
that Noonkester received extra time in the dayroom when possible, but they present
neither specific evidence nor justification for why Noonkester didn’t get to use the
dayroom whenever no penal inmates were there. Compare Plaintiff Depo. at 106,
with Clay Decl. ¶ 16. Defendants haven’t overcome the Blanas presumption, and
there’s a factual dispute here. See Sumahit, 2009 WL 2879903, at *16–17.
Noonkester alleges that, when he was cellside, he was given such
“infrequent and sporadic” access to the exercise yard as to qualify as “creating a
punitive environment.” Oppos. to Summary Judgment at 15. Defendants provide
no evidence on what typical treatment was for penal inmates, merely alleging that
Noonkester’s treatment was “equal or better” than that given to penal inmates, so
they haven’t overcome the presumption created by Noonkester’s allegations of
punitive treatment. Clay Decl. ¶ 17. Again, there’s a factual dispute. See
Sumahit, 2009 WL 2879903, at *16–17.
Noonkester also points to a particular incident in which defendants housed
him cellside because they were using the SHU for a high-security pretrial detainee.
Sumahit found that vague explanation insufficient, id. at *17; this court does, too.
Noonkester’s claim that his waiver from administrative segregation was

page 6
improperly elicited is barred by the statute of limitations. See Amended
Complaint, Exhibit A; Oppos. to Summary Judgment at 10; Clay Decl., Exhibit A.

Transportation
Tehama County contracted with TransCor to handle Noonkester’s
transportation between the state hospital and the Tehama County Jail. While
Noonkester complains about his treatment during those journeys, he doesn’t allege
that defendants established any policies producing the conditions he complains
about. See Amended Complaint, Memorandum of Points and Authorities at 8.
The County can’t be held liable for individual contractors’ acts of mistreatment.
See Monell v. Dept. of Soc. Servs. of New York, 436 U.S. 658, 694 (1978).
Noonkester also complains about having to wear restraints during transport
between the jail and the courthouse where his re-commitment hearings occurred.
He alleges that he was treated like a prisoner, rather than like a civil detainee,
without justification. Plaintiff Depo. at 74–78. Defendants respond that they
restrain all inmates, regardless of classification, during transport to and from court.
Clay Decl. ¶ 23. Sumahit found that to be insufficient justification in the absence
of any evidence that SVPs pose the same security risks as penal inmates. 2009 WL
2879903, at *10–11. Youngberg, 457 U.S. at 321, requires courts to “make certain
that professional judgment” was used in restraining civil detainees, and here

page 7
defendants offer only vague assertions of their policies. The court follows Sumahit
in finding defendants’ explanation insufficient.
But the court also follows Sumahit, 2009 WL 2879903, at *11, in finding
that mere transport of a civil detainee alongside penal inmates presents no
cognizable harm.

Lights, Sanitation and Water Temperature
Noonkester’s complaints about lights, sanitation and water temperature all
arise from his housing outside administrative segregation in 2003 and are barred by
the statute of limitations. Amended Complaint, Memorandum of Points and
Authorities at 4.

Locking Mechanism Failure
Noonkester alleges that the locking mechanism separating his part of the jail
once failed, leaving him in danger of assault from penal inmates. Id. at 7. This
claims doubly fails because Noonkester points to no specific harm, other than
passing fear, and doesn’t alleged that the lock’s failure was a deliberate policy,
meaning it was, at most, the type of “negligent act of an official” that Daniels v.
Williams, 474 U.S. 327, 328 (1986) (emphasis omitted), held not cognizable under
the Due Process Clause.

page 8
Holding Cell
Noonkester complains about an incident during his booking at the jail when
he remained in a holding cell for eight hours without heat or a bed. Amended
Complaint, Memorandum of Points and Authorities at 5. But he doesn’t allege any
particular harm.

4. Civil detainees’ medical care claims are evaluated under the Fourteenth
Amendment, but “the Eighth Amendment still provides a floor for the level of
protection that SVPs must receive . . . and because the contours of the Eighth
Amendment are more defined, Eighth Amendment jurisprudence may provide
helpful guidance as to the standards to be applied.” Hubbs v. Cnty. of San
Bernardino, 538 F. Supp. 2d 1254, 1266 (C.D. Cal. 2008). Under the Eighth
Amendment, deficient medical care violates the Constitution when there’s
evidence of “deliberate indifference to serious medical needs.” Estelle v. Gamble,
429 U.S. 97, 106 (1976). “[P]laintiff must show a serious medical need by
demonstrating that failure to treat a prisoner’s condition could result in further
significant injury or the unnecessary and wanton infliction of pain . . . [and that]
defendant’s response to the need was deliberately indifferent . . . .” Jett v. Penner,
439 F.3d 1091, 1096 (9th Cir. 2006) (internal quotation marks omitted). Proving
indifference requires “showing (a) a purposeful act or failure to respond to a

page 9
prisoner’s pain or possible medical need and (b) harm caused by the indifference.”
Id.
Noonkester claims that jail personnel were deliberately indifferent to his
deep vein thrombosis (DVT), cancerous growth and closed esophagus. Amended
Complaint, Memorandum of Points and Authorities at 2, 7. After requesting a
doctor, Noonkester waited over six weeks before one visited him, and he then told
Noonkester he’d have to wait until he was taken to the state hospital to receive
care. Objections to Magistrate Judge’s Findings at 6; Plaintiff Depo. at 41. That
return was delayed by a flu outbreak at the hospital, making for an overall delay of
about ninety-eight days. Oppos. to Summary Judgment at 24–25; Plaintiff Depo.
at 114. Noonkester suffered a heart attack just under three years later and alleges
that a doctor told him it could’ve been related to his delayed DVT treatment.
Plaintiff Depo. at 43–48. While the County’s physician reviewed Noonkester’s
records and found no harm from the delay, Malan Decl. ¶¶ 8–13, this is a factual
dispute.
Noonkester also complains about delays in receiving his medication. But he
can show neither harm from the delays nor deliberateness behind them. He comes
closest to identifying a harm when he claims to have lost fourteen pounds from
delays in receiving Marinol, an appetite stimulant, Plaintiff Depo. 27–28, 38, but

page 10
that claim is barred by the statute of limitations. Defendants explain other brief
delays based on their policy of reviewing prescriptions before providing them,
Clay Decl. ¶ 44, and Noonkester identifies no clear harm.

5. Upon arrival at the jail, Noonkester was subject to the same strip searches
as penal inmates, raising a presumption that such treatment was punitive. But
defendants have adequately justified the policy on the non-punitive grounds of jail
safety. Id. ¶ 47; see Sumahit, 2009 WL 2879903, at *12–13.

6. Noonkester complains that he was denied access to Native American
religious services. Amended Complaint, Memorandum of Points and Authorities
at 4. But the jail doesn’t provide spiritual leaders as a matter of course. Instead, it
allows inmates to receive visits from clergy upon request. Clay Decl. ¶¶ 54–55.
Noonkester admits that he never made a request. Plaintiff Depo. at 54–55. He also
complains that he was denied access to a sweat lodge, but he doesn’t even claim
that he requested such access. Id. at 57.
Noonkester alleges that his medicine bag was confiscated and lost, id. at
51–54, but the statute of limitations bars the claim.

7. Noonkester and defendants dispute whether he complained about
problems in obtaining access to a working phone to call the attorney representing

page 11
him in his re-commitment hearings. Compare Amended Complaint, Memorandum
of Points and Authorities at 3 & Exhibit A, with Clay Decl. ¶¶ 24–28. Noonkester
admits that he did have significant phone access to his attorney. Plaintiff Depo.
at 68–69. There’s “no clearly established right for a detainee to speak to his
attorney by phone as much as he wishes and at times of his choosing.” Warren v.
Kolender, No. 05-cv-2095-LAB, 2009 WL 196114, at *13 (S.D. Cal. Jan. 22,
2009) (citing Valdez v. Rosenbaum, 302 F.3d 1039, 1048 (9th Cir. 2002)).
Moreover, Noonkester shows no harm, as he was able to appeal his commitment
hearings and secure representation in doing so. Plaintiff Depo. at 72–73.
Noonkester also complains that the jail’s law library was inadequate.
Opposition to Summary Judgment at 19; Plaintiff Depo. at 69. But he fails to meet
the standard established in Vandelft v. Moses, 31 F.3d 794, 797 (9th Cir. 1994),
which requires that an inmate’s library access be (1) so limited as to be
unreasonable and (2) the cause of actual injury.
Finally, Noonkester alleges that jail officials opened and read three legal
letters sent to him. Plaintiff Depo. at 94–96. Defendants reasonably explain that
all ordinary mail is inspected for contraband and either Noonkester’s mail wasn’t
properly marked as legal mail or a negligent error occurred. Clay Decl. ¶¶ 32–35.

8. There’s no respondeat superior liability for section 1983 claims, and

page 12
“[l]iability under section 1983 arises only upon a showing of personal participation
by the defendant.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).
Noonkester provides no basis for claiming that Sheriff Parker participated
personally in the treatment Noonkester complains about. Plaintiff Depo. at 24–27.
The sheriff therefore can’t be liable in his personal capacity. See Sumahit, 2009
WL 2879903, at *19.

Conclusion
The court denies summary judgment on Noonkester’s claims regarding
access to the dayroom and exercise yard while cellside; detention cellside when a
high-security pretrial detainee was held in the SHU; delayed medical treatment for
DVT and use of restraints during transport between the jail and courthouse. The
court grants summary judgment to defendants on all other claims, and to Sheriff
Parker in his personal capacity on all claims.
This court hopes that, as in Sumahit, the parties can productively move to
mediation now that the summary judgment stage has concluded. The court thus
orders the parties to contact Sujean Park, this district’s Alternative Dispute
Resolution Program Director, at [phone] to move forward with mediation.
The Program Director shall provide a report to this court on the status of mediation
efforts no later than October 1, 2011. A copy of this order shall be sent to:

page 13
Sujean Park
ADR Director
United States District Court
Eastern District of California
501 I Street, Suite 4-200
Sacramento, CA 95814
July 21, 2011

A
ALEX KOZINSKI
Chief Circuit Judge
Sitting by designation