Lum v. County of San Joaquin, et al.,
Filing
107
ORDER signed by Judge Lawrence K. Karlton on 3/22/2012 GRANTING in part, DENYING in part 71 Motion for Summary Judgment. (Michel, G)
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UNITED STATES DISTRICT COURT
8
FOR THE EASTERN DISTRICT OF CALIFORNIA
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JERRY LUM, et al.,
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NO. CIV. S-10-1807 LKK/DAD
Plaintiffs,
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v.
O R D E R
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COUNTY OF SAN JOAQUIN,
et al.,
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Defendants.
/
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This case arises from the death of Jeremy Lum, whose body was
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discovered in the San Joaquin River three days after he was
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released from San Joaquin County Jail. Pending before the court is
20
a motion for summary judgment by defendants. This order will
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address all issues in that motion with the exception of whether any
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entity has Monell liability.
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I. Factual Background
24
The following facts are undisputed, unless noted.
25
Plaintiffs in this case are the parents of decedent Jeremy Lum
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(“Lum”). Lum was diagnosed with bipolar disorder, and was admitted
1
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to St. Joseph’s Behavioral Health Center for bipolar episodes on
2
multiple occasions between 2005 and 2009. Despite his disorder, Lum
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played sports in high school and graduated from U.C. Berkeley. Lum
4
worked for a family company and lived on his own.
5
On July 8, 2008, Lum’s father went to Lum’s house to pick him
6
up for dinner. Lum was asleep, and Mr. Lum woke him up to tell him
7
that it was time for dinner. Lum did not know it was dinner time,
8
and refused to go with Mr. Lum. Mr. Lum was surprised by Lum’s
9
behavior.
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Later that evening, Lum appeared at the Archuleta residence,
11
which is .3 miles from his home. Lum was wearing shorts and a t-
12
shirt, but no shoes. Lum said that he was looking for a female with
13
a name that the Archuletas did not know. Jestina Archuleta called
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911. Lum was at the Archuletas door for approximately three
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minutes, and then wandered around the Archuletas’ front yard
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looking confused. Lum then walked across the street, stopped for
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some time facing a light pole. Lum then entered the Fireside Inn,
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a bar, and then exited. Plaintiffs assert that Lum was inside the
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bar for less than one minute. See James Archuleta Depo. 23:3-19.
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Lum then went to a nearby park and stood by some poles with his
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dog.
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Sergeants Steven Pease and Raymond Walters and Deputy Davis
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(“the arresting officers”) contacted Lum. The arresting officers
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are all employees of the San Joaquin County Sheriff’s Department.
25
According
26
Department
to
a
declaration
Lieutenant
John
by
San
Joaquin
Williams,
2
the
County
Sheriff’s
county
Sheriff’s
1
Department “provides the City of Lathrop police services pursuant
2
to contract.” Decl. Williams.
3
Lum
had
4
vomit
on
his
shirt,
and
appeared
confused
and
disoriented.
5
At some point, the officers decided to arrest Lum and take him
6
to jail, although the facts surrounding this decision are heavily
7
disputed by the parties. It is undisputed that at least Sergeant
8
Pease thought that Lum was having a mental health episode.
9
Before taking him to jail, the officers attempted to locate
10
Lum’s family. Sergeant Walters called Lum’s father’s cell phone,
11
and the call went to voicemail. Sergeants Pease and Walters took
12
Lum’s dog to Lum’s home.
13
Mr. Archuleta testified that he asked one of the officers what
14
was going on, and the officer responded “we think he’s off his
15
meds.” Each of the officers denies saying this to Mr. Archuleta.
16
Lum did not tell the arresting officers that he had any mental
17
disorder.
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Deputy Davis transported Lum to the San Joaquin County Jail,
19
which is operated by San Joaquin County. At the jail, Lum told
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Officer Mendoza that he was under the care of a doctor for his
21
bipolar condition during a medical screening questionnaire. Officer
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Mendoza placed Lum in a holding cell shortly after midnight. Some
23
time between midnight and 6:00 a.m., Officer Mendoza observed Lum
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trying to open imaginary doors inside the holding cell.
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County policy requires officers to check on arrestees in
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sobering cells ever 15 minutes and to make a note of these checks
3
1
on an inmate observation log. See San Joaquin County Sheriff’s
2
Department Custody Division Policy Manual Section 3.1.0., Ex. B to
3
Moule Decl., ECF No. 78. Officer Mendoza did not check on Lum every
4
15 minutes, but he recorded on the log that he did so.
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A note was entered at 5:00 a.m. that Lum was observed by Nurse
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Velarde. At 6:00 a.m., release officer Fernandez started her shift.
7
She reviewed the files of inmates scheduled for release that
8
morning. Fernandez released Lum at 7:30 a.m.
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Lum’s family reported him missing on July 9, 2009. On July 12,
10
2009, Lum’s body was found in the San Joaquin River. The cause of
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death was declared to be drowning caused, or contributed to, by
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amphetamine and Orphenadrine toxicity.
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Plaintiffs’ Second Amended Complaint (“SAC”) alleges the
14
following claims for relief arising from the facts described above:
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Section 1983 Claim for Violation of Decedent’s Fourth Amendment
16
Rights; Section 1983 Claim for Violation of Plaintiffs’ Fourteenth
17
Amendment Rights; Section 1983 Claim for Inadequate and Reckless
18
Training;
19
Wrongful Death–Negligence; and False Arrest.
20
Violation
of
the
Americans
with
Disabilities
Act;
II. Standard for a Motion for Summary Judgment
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Summary judgment is appropriate “if the movant shows that
22
there is no genuine dispute as to any material fact and the movant
23
is entitled to judgment as a matter of law.”
24
56(a); Ricci v. DeStefano, 557 U.S. 557, 129 S. Ct. 2658, 2677
25
(2009) (it is the movant’s burden “to demonstrate that there is ‘no
26
genuine issue as to any material fact’ and that they are ‘entitled
4
Fed. R. Civ. P.
1
to judgment as a matter of law’”); Walls v. Central Contra Costa
2
Transit Authority, 653 F.3d 963, 966 (9th Cir. 2011) (same).
3
Consequently, “[s]ummary judgment must be denied” if the court
4
“determines that a ‘genuine dispute as to [a] material fact’
5
precludes immediate entry of judgment as a matter of law.”
6
v. Jordan, 562 U.S. ___, 131 S. Ct. 884, 891 (2011), quoting Fed.
7
R. Civ. P. 56(a); Comite de Jornaleros de Redondo Beach v. City of
8
Redondo
9
Cir. September 16, 2011) (same).
Beach,
___
F.3d
___,
2011
WL
4336667
at
3
Ortiz
(9th
10
Under summary judgment practice, the moving party bears the
11
initial responsibility of informing the district court of the basis
12
for its motion, and “citing to particular parts of the materials
13
in the record,” Fed. R. Civ. P. 56(c)(1)(A), that show “that a fact
14
cannot be ... disputed.”
15
Corp. Securities Litigation, 627 F.3d 376, 387 (9th Cir. 2010)
16
(“The moving party initially bears the burden of proving the
17
absence of a genuine issue of material fact”), citing Celotex v.
18
Catrett, 477 U.S. 317, 323 (1986).
Fed. R. Civ. P. 56(c)(1); In re Oracle
19
If the moving party meets its initial responsibility, the
20
burden then shifts to the non-moving party to establish the
21
existence of a genuine issue of material fact.
22
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986);
23
Oracle Corp., 627 F.3d at 387 (where the moving party meets its
24
burden,
25
designate specific facts demonstrating the existence of genuine
26
issues for trial”). In doing so, the non-moving party may not rely
“the
burden
then
shifts
5
to
the
Matsushita Elec.
non-moving
party
to
1
upon the denials of its pleadings, but must tender evidence of
2
specific facts in the form of affidavits and/or other admissible
3
materials in support of its contention that the dispute exists.
4
Fed. R. Civ. P. 56(c)(1)(A).
5
“In evaluating the evidence to determine whether there is a
6
genuine issue of fact,” the court draws “all reasonable inferences
7
supported by the evidence in favor of the non-moving party.”
8
Walls, 65.3 F.3d at 966.
9
inferences “supported by the evidence,” it is the non-moving
10
party’s obligation to produce a factual predicate as a basis for
11
such inferences.
12
898, 902 (9th Cir. 1987).
13
simply show that there is some metaphysical doubt as to the
14
material facts ....
15
lead a rational trier of fact to find for the nonmoving party,
16
there is no ‘genuine issue for trial.’”
17
586-87 (citations omitted).
Because the court only considers
See Richards v. Nielsen Freight Lines, 810 F.2d
The opposing party “must do more than
Where the record taken as a whole could not
Matsushita, 475 U.S. at
18
III. Analysis
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A. First Claim: Section 1983 Claim for Violation of Decedent’s
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Fourth Amendment Rights.
21
This claim is against defendants City of Lathrop, and Deputy
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Davis,
Sergeant
Walters,
23
officers”).
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unlawfully arrested Lum, and that “in the City of Lathrop, police
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sergeants, including Sergeants Walters and Pease, are invested by
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law–or by custom or usage having the force of law–with final
Plaintiffs
and
Sergeant
allege
that
6
Pease
the
(the
arresting
“arresting
officers
1
policymaking authority to effect arrests and/or ratify or sanction
2
arrests made by other officers.” Second Amended Complaint (“SAC”)
3
¶ 56, ECF No. 26. Plaintiffs allege that the City of Lathrop is
4
liable pursuant to Monell v. Department of Social Services, 365
5
U.S. 167 (1978), because Sergeants Walker and Pease were acting as
6
municipal officials. Plaintiffs allege that the City of Lathrop has
7
a
8
treatment and temporary detention of people arrested pursuant to
9
California Penal Code § 647(f), which makes it a misdemeanor to be
10
custom,
policy,
practice,
or
procedures
pertaining
to
the
intoxicated in public.
11
Defendants claim that the arresting officers are entitled to
12
qualified immunity, and that the arresting officers do not have
13
final policy-making authority for the City of Lathrop. The question
14
of whether the City is liable for the arresting officers’ conduct
15
under a Monell theory will be addressed in a later order of this
16
court, following additional briefing from the parties.
17
i. Qualified Immunity
18
Qualified
immunity
"protects
government
officials
from
19
liability for civil damages insofar as their conduct does not
20
violate clearly established statutory or constitutional rights of
21
which a reasonable person would have known." Pearson v. Callahan,
22
129 S.Ct. 808, 815, 172 L. Ed. 2d 565 (2009). In order to be
23
clearly
24
sufficiently clear" so as to be obvious to a reasonable official.
25
Anderson v. Creighton, 483 U.S. 635, 640 (1978). To meet this
26
standard, the right alleged to be violated cannot be only the
established,
"the
contours
7
of
the
right
must
be
1
"general constitutional guarantee (e.g., the Fourth Amendment
2
freedom
3
application in a particular context." Baker v. Racansky, 887 F.2d
4
183, 186 (9th Cir. 1989) (citing Anderson, 483 U.S. at 639-40 and
5
Todd v. United States, 849 F.2d 365, 370 (9th Cir. 1988)).
from
unreasonable
searches
and
seizures),
but
its
6
A warrantless arrest by an officer is reasonable under the
7
Fourth Amendment where there is probable cause to believe that a
8
criminal offense has been or is being committed. Devenpeck v.
9
Alford, 543 U.S. 146, 153 (2004). Whether probable cause exists
10
depends on the reasonable conclusion to be drawn from the facts
11
known to the arresting officer at the time of the arrest. Id. An
12
officer’s subjective reason for making the arrest is not relevant.
13
“Evenhanded law enforcement is best achieved by the application of
14
objective standards of conduct, rather than standards that depend
15
on the subjective state of mind of the officer.” Horton v.
16
California, 496 U.S. 128, 138 (1990).
17
Qualified immunity shields arresting officers from suit for
18
damages if "a reasonable officer could have believed the arrest to
19
be lawful, in light of clearly established law and the information
20
the [arresting] officers possessed." Anderson v. Creighton, 483
21
U.S.
22
"reasonably but mistakenly conclude that probable cause is present"
23
are entitled to immunity. Hunter v. Bryant, 502 U.S. 224, 227
24
(1991).
25
26
635,
A
§
641
1983
(1987).
defendant
Even
is
law
enforcement
entitled
to
officials
summary
judgment
who
if
“discovery fails to uncover evidence sufficient to create a genuine
8
1
issue as to whether the defendant” violated clearly established
2
law. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Summary
3
judgment on qualified immunity is not proper unless the evidence
4
permits
5
inferences may be drawn from the facts, the case must go to the
6
jury." Munger v. City of Glasgow Police Dep't, 227 F.3d 1082, 1087
7
(9th Cir. 2000).
8
Here,
only
one
the
reasonable
arresting
conclusion.
officers
are
Where
entitled
"conflicting
to
qualified
9
immunity if, under the circumstances, it was reasonable for the
10
officers to believe that plaintiff was intoxicated. The arresting
11
officers are entitled to summary judgment if there is no genuine
12
issue as to whether it was reasonable for the officers to believe
13
that plaintiff was intoxicated. Drawing all inferences in favor of
14
the non-moving party, the court cannot conclude, on the record
15
before
16
circumstances.
it,
that
this
was
a
reasonable
belief
under
the
17
James Archuleta, who had a three minute conversation with Lum
18
shortly before his arrest, testified that Lum “looked like he was
19
walking fine,” and did not recall him stumbling. Depo. James
20
Archuleta 24:18-20. Mr. Archuleta asserted that “there was no
21
slurring. I could understand what he was saying.” Id. 25:17-18. Mr.
22
Archuleta testified that he did not smell any alcohol on Lum,
23
despite having talked with him at a distance of about three feet.
24
Id. 49:2. Mr. Archuleta also testified that he asked one of the
25
officers what was going on with Lum, and the officer responded
26
“Well, we think he’s off his meds.” Id. 42:2.
9
1
The Arrest Report dated July 8, 2009 charged Lum with public
2
intoxication, California Penal Code §647(f). The check box for
3
“mumbles/slurred” is checked, but no narrative description is
4
included. A second page of the Arrest Report is dated July 11,
5
2009, two days after Lum was reported missing, and states that Lum
6
was staggering, with red watery eyes, slurred speech, and the odor
7
of alcohol.1
8
A report prepared by Sergeant Walters states that prior to
9
July 8, 2009 Walters “was familiar with Jeremy Lum having a mental
10
health condition.” Missing Person Report, Ex. 14 to Walker Decl.,
11
ECF No. 88.
12
Sergeant Pease testified that Lum was “slurring” and that he
13
was exhibiting signs of a person suffering from mental illness.
14
Depo. Pease, 29:15-31:1. Pease testified “The answers [Lum] would
15
give to questions weren’t connected to the questions, complete
16
disconnect. In my opinion, it appeared he was having visual
17
hallucinations, seeing things that weren’t there. Those would be
18
things that mostly made me believe there was mental health issues.”
19
Id. 31:3-8. Pease also testified that the arresting officers
20
discussed the fact that Lum was having a mental health episode, but
21
that he also was intoxicated. Id. 45:18-22.
22
Mr. Crabtree, a bartender at the Fireside Inn testified that
23
he spoke to Lum after Lum left the Archuleta residence, but before
24
25
26
1
Defendants assert that the later date is the date that the
report was entered into a database, but that both pages of the
arrest report were completed on July 8, 2009.
10
1
the police arrived. Mr. Crabtree testified that Lum appeared steady
2
on his feet, and that he did not mumble or have slurred speech.
3
Depo. Crabtree 23:20-28:3. Mr. Crabtree testified that nothing in
4
his interaction with Lum on July 8 suggested that Lum had been
5
drinking. Id. 41:2-7.
6
Defendants offer a deposition of plaintiffs police expert,
7
Stephen D’Arcy as evidence that it would have been reasonable for
8
the officers to arrest Lum under §647(f). Contrary to defendants’
9
assertion, MSJ 11, D’Arcy did not agree that it was reasonable to
10
arrest Lum. D’Arcy stated that it would have been reasonable
11
assuming that “all of the elements of the crime were present and
12
the officers have made that decision based upon constitutional
13
standards.” Depo. D’Arcy 113: 5-7.2
14
Plaintiffs’ psychiatry expert testified that many of the
15
symptoms of mental illness that Lum displayed on a videotape from
16
the jail, could also be symptoms of alcohol intoxication. Depo.
17
Saldanha.
18
The court concludes that there remains a genuine issue as to
19
whether the defendants had probable cause to arrest Lum for public
20
intoxication. Based on the evidence submitted, the court cannot
21
2
22
23
24
25
26
Defendants’ Motion for Summary Judgment cites a quotation
from the D’Arcy deposition that does not appear in the transcript.
Defendants quote the following exchange from the deposition: “Q:
Okay. So it was appropriate then to arrest Mr. Lum for public
intoxication? A: That’s the option they elected, yes. Q: But was
it an appropriate election of the number of options to arrest him
under 647(f)? A: Yes, it fell under the elements of the crime.” See
Defs.’ Mot. 11. That exchange does not appear in the deposition
transcript at the page and lines cited, or anywhere else as far as
the court can tell.
11
1
conclude that it is uncontestable that a reasonable officer would
2
have believed that probable cause existed for the arrest under the
3
circumstances.
4
Accordingly, defendants are not entitled to summary judgment on the
5
basis of qualified immunity.
6
B. Second Claim: Section 1983 Claim for Violation of Plaintiffs’
7
Fourteenth Amendment Rights
8
9
Hunter
v.
Bryant,
502
U.S.
224,
227
(1991).
This claim is alleged against the arresting officers and
Officer
Mendoza.
Plaintiffs
allege
that
Lum
was
a
pre-trial
10
detainee, creating a special relationship between the decedent and
11
the defendants and giving rise to a duty not to leave Lum in a
12
situation that was more dangerous than the one they found him in.
13
Specifically, plaintiffs allege that by failing to administer a
14
medical or psychological evaluation at the time of arrest and
15
detention, and by releasing him six miles from home without money,
16
shoes, a phone, or a means of transportation, the defendants placed
17
Lum in a situation that was more dangerous than the one they found
18
him in.
19
Generally, public officials are not liable for omissions. See,
20
e.g., DeShaney v. Winnebago County Dep’t of Social Services, 489
21
U.S. 189 (1989). There are two exceptions to this general rule: the
22
state-created
23
exception. Where there is “affirmative conduct on the part of the
24
state in placing the plaintiff in danger,” an official may be
25
liable for harm that occurs. L.W. v. Grubbs, 974 F.2d 119, 121 (9th
26
Cir. 1992). This “state-created danger” exception has been found
danger
exception,
12
and
the
special
relationship
1
where a police officer ejected a woman from a vehicle in a high-
2
crime area where she was subsequently raped, Wood v. Ostrander, 879
3
F.2d 583 (9th Cir. 1989); where police officers detained an
4
intoxicated woman one third of a block from her home on a cold
5
night and then released her to walk home alone after sending her
6
husband home, and the plaintiff suffered from hypothermia, Kneipp
7
v. Tedder, 95 F.3d 1199 (3d Cir. 1996); and where officers ejected
8
a drunk patron from a bar on a freezing Montana night where he died
9
from hypothermia, Munger v. City of Glasgow Police Dep't, 227 F.3d
10
1082, 1087 (9th Cir. 2000). In each of these cases, the court
11
concluded that the plaintiff was in a worse position after the
12
officers intervened, and that the state acted with deliberate
13
indifference to a known or obvious danger.
14
Dist., 648 F.3d 965 (9th Cir. 2011).
Patel v. Kent Sch.
15
Under the “special relationship” exception, an officer may
16
also be liable for an omission “when a state takes a person into
17
its custody and holds him there against his will,” including by
18
incarceration. Patel v. Kent Sch. Dist., 648 F.3d 965 (9th Cir.
19
2011). This exception only applies when a person is in custody.
20
In
this
case,
plaintiffs
allege
under
both
the
special
21
relationship and the state-created danger theories, although they
22
conflate the two.
23
i. Special Relationship
24
Defendants argue that any special relationship between Lum and
25
defendants terminated once Lum was released from jail, and Lum died
26
after being released from custody.
13
1
In Coscia v. Town of Pembroke, 659 F.3d 37 (1st Cir. 2011),
2
the court held that “in the absence of a risk of harm created or
3
intensified by state action there is no due process liability for
4
harm suffered by a prior detainee after release from custody in
5
circumstances that do not effectively extend any state impediment
6
to exercising self-help or to receiving whatever aid by others may
7
normally be available.” In Coscia, the plaintiff exhibited signs
8
of mental distress while in custody and committed suicide shortly
9
after being released.
10
The court finds the Coscia holding to be inapplicable here,
11
because there is a triable issue as to whether the risk of harm to
12
Lum was intensified during his arrest and detention, where he had
13
no access to his medications under the circumstances noted above.
14
ii. State-Created Danger
15
Plaintiffs allege that by failing to administer a medical or
16
psychological evaluation during Lum’s detention, the defendants
17
placed Lum in a situation more dangerous than the one they found
18
him in. Specifically, prior to Lum’s arrest, he was closer to home
19
than when he was released from jail, less in need of medication,
20
and he had his dog with him.
21
Plaintiffs
allege
that
defendants
acted
with
deliberate
22
indifference towards a known danger to plaintiffs. Plaintiffs have
23
provided evidence that Officer Mendoza falsified an observation log
24
by recording that he had checked on Lum in the sobering cell when,
25
in fact, he hadn’t checked on him as required by policy. According
26
to plaintiffs, Nurse Naval reported finding Lum alert and oriented,
14
1
even though the time of her examination was after Lum had been
2
released and had left the jail. Further, Lum told Officer Mendoza
3
that he was bipolar and under the care of a Dr. Lee, and that he
4
was taking medications. Officer Mendoza testified that he did not
5
know what “bipolar” meant, Depo. Mendoza 79:14-15, and he proceeded
6
to process Lum as an intoxicated person, and noted “No medical
7
conditions,” into the jail’s database. Mendoza did not call a nurse
8
to examine Lum at that time because, in his opinion, “you don’t
9
call a nurse for drunk people.” Id. 87: 10-11.
10
The court finds that a reasonable jury could find that by
11
arresting, detaining, and then releasing Lum without conducting a
12
proper medical evaluation, defendants put him in a more dangerous
13
state than he was in prior to arrest. A jury could conclude that
14
Lum’s mental condition worsened while he was held in jail overnight
15
with no access to his medication. The court also finds that there
16
is a triable issue as to whether Officer Mendoza was deliberately
17
indifferent to Lum’s well being.
18
The arresting officers did apparently fail to alert jail
19
personnel that Lum appeared to be having a mental health episode.
20
Given the disputed facts under these circumstances, the court
21
cannot
22
indifferent to Lum’s well being.
23
find
the
arresting
officers
were
not
deliberately
Accordingly, the court denies defendants’ motion for summary
24
judgment on the Second Claim for relief.
25
iii. Due Process Right to Medical Care While in Custody
26
Apart from the state-created danger and special relationship
15
1
theories of liability, there is a triable question as to whether
2
defendants deprived Lum of his right to medical care while in the
3
custody of the county. In the pre-conviction context, that right
4
derives from the due process clause, which “imposes, at a minimum,
5
the same duty the Eighth Amendment poses: persons in custody have
6
the established right to not have officials remain deliberately
7
indifferent to their serious medical needs,” including psychiatric
8
needs. Gibson v. County of Washoe, 290 F.3d 1175, 1187 (9th Cir.
9
2002).
10
A defendant is deliberately indifferent in this context if he
11
knows of and disregards an excessive risk to the detainee’s health
12
and safety. Farmer v. Brennan, 511 U.S. 825 (1970). The defendant
13
must actually be aware of the risk; it is not enough if he should
14
have known of the risk but did not. Id.
15
It is apparent to the court that Officer Mendoza should have
16
known of the excessive risk to Lum’s safety. Lum told Mendoza that
17
he was bi-polar, under the care of a doctor, and on medications.
18
Mendoza observed Lum trying to open imaginary doors in his cell.
19
The court concludes that there is a triable issue on the question
20
of whether Officer Mendoza actually knew of a risk to Lum’s health
21
and safety. A jury might not find it credible that Officer Mendoza
22
did not know that “bi-polar” refers to a serious mental health
23
condition, despite being having received training on dealing with
24
individuals with mental health issues. See Sida Report, ECF No. 48
25
at 15. Moreover, again the conduct of the arresting officers in
26
this regard cannot be resolved by the court.
16
1
Accordingly, the court finds that the defendants are not
2
entitled to summary judgment on the second claim for relief.
3
C. Third Claim: Monell liablity for “kick-out” policy
4
As their third claim for relief, plaintiffs allege that the
5
City
6
defendants") have a policy of accepting arrestees on "kick-out"
7
charges, holding them arbitrarily, and then releasing them in a
8
manner that puts them a risk of harm. Plaintiffs allege that
9
plaintiffs Fourteenth Amendment rights were violated as a result
10
of
Lathrop
and
County
of
San
Joaquin
("the
municipal
of this policy.
11
In
their
complaint,
plaintiffs
alleged
"other
arrestees
12
charged as kickouts, and holding them for an arbitrary period of
13
time only to release them without any guidance, protection, or
14
assistance." However, plaintiffs have submitted evidence of only
15
one other similar incident involving San Joaquin County and another
16
city.
17
Evidence of only one prior incident does not raise a triable
18
fact as to whether there was a policy of treating "kickout"
19
arrestees in a unconstitutional manner. "Proof of a single incident
20
of unconstitutional activity is not sufficient to impose liability
21
under Monell, unless proof of the incident includes proof that it
22
was caused by an existing, unconstitutional local government]
23
policy, which policy can be attributed to a [local government]
24
policymaker. Meehan v. County of Los Angeles, 856 F.2d 102, 107
25
(9th Cir. Cal. 1988) (quoting City of Oklahoma v. Tuttle, 471 U.S.
26
808
(1985)).
Plaintiffs
provide
17
no
further
evidence
of
an
1
unconstitutional policy with respect to kickout arrestees. Indeed,
2
plaintiffs argue that Officer Mendoza violated county policy that
3
requires inmates to be seen by Correctional Health Staff if booking
4
officers learn that an arrestee is on medication but doesn't have
5
the medication with him.
6
Accordingly, the court finds that the municipal defendants are
7
entitled to summary judgment on Claim 3.
8
D. Claim Four: Inadequate Training
9
Plaintiffs' Fourth Claim is for inadequate and reckless
10
training by the municipal defendants. In order to sustain such a
11
claim, plaintiffs would have to demonstrate a triable fact that the
12
"inadequacy of police training. . ." in this case "amounts to
13
deliberate indifference to the rights of persons with whom the
14
police come into contact." City of Canton v. Harris, 489 U.S. 378,
15
388
16
indifference. Rather, both plaintiffs and defendants have submitted
17
evidence of numerous policies adopted by the city and county with
18
respect to training officers to deal with mental health situations.
19
Accordingly, defendants are entitled to summary judgment on
(1989).
Plaintiffs
20
submitted
no
evidence
of
such
Claim 4.
21
have
E. Claim Five: ADA
22
Plaintiffs allege that the municipal defendants discriminated
23
against Lum on the basis of a disability, and that they failed to
24
accommodate him, in violation of the Americans with Disabilities
25
Act.
26
The Ninth Circuit has held squarely that the ADA applies to
18
1
local law enforcement and correctional facilities. Lee v. City of
2
Los Angeles, 250 F.3d 668 (9th Cir. 2001). As this court previously
3
noted, "There are two theories generally recognized by courts in
4
applying the ADA in the context of arrests. See Gohier v. Enright,
5
186 F.3d 1216, 1221 (10th Cir. 1999). First, where police wrongly
6
arrested someone with a disability because they misperceived the
7
effects of that disability as criminal activity. Id. at 1220.
8
Second, where although police have properly investigated and
9
arrested a person with a disability for a crime unrelated to that
10
disability, they failed to reasonably accommodate the person’s
11
disability in the course of investigation or arrest, causing the
12
person to suffer greater injury or indignity in that process than
13
other arrestees. Id. at 1220-21 (citing Gorman, 152 F.3d at 912-13
14
(holding such claim viable); Rosen, 121 F.3d at 157-58 (suggesting
15
in dicta such claim not viable); Patrice v. Murphy, 43 F.Supp.2d
16
5 1156 (W.D. Wash. 1999) (holding such claim not viable.))" Order,
17
ECF No. 25.
18
(reversing only the award of punitive damages in an ADA case
19
involving a disabled arrestee injured during transport to jail).
See also Barnes v. Gorman, 536 U.S. 181 (2002)
20
Plaintiffs' complaint alleges both theories here.
21
For the same reasons stated above, the court concludes that
22
there is a triable issue as to whether the defendants wrongfully
23
arrested Lum because they perceived the effects of a disability as
24
intoxication. Defendants have submitted evidence indicating that
25
it was reasonable to conclude that Lum was intoxicated, and
26
plaintiffs
have
submitted
counterevidence
19
to
the
contrary.
1
Accordingly, the court cannot grant summary judgment for defendants
2
as to the first theory of ADA liability.
3
Plaintiff’s opposition does not offer any argument or evidence
4
in support of the second theory of liability. Defendants argue that
5
since Lum did not make any request for an accommodation, no
6
obligation to accommodate him was triggered. Defendants cite to
7
employment cases to support this proposition. The court finds no
8
binding case law that requires such a request before the ADA's
9
protections
are
triggered
in
the
context
of
correctional
10
facilities. For example, in Pierce v. County of Orange, 526 F.3d
11
1190, 1217 (9th Cir. 2008), the Ninth Circuit held that the
12
district court had erred in denying relief to disable prisoners
13
seeking
14
pre-litigation request for an accommodation.
15
accommodations,
without
any
mention
of
a
specific
Moreover, the four elements of an ADA claim in the context of
16
prison
accommodations
17
accommodation.
18
individual with a disability; (2) the plaintiff is otherwise
19
qualified to participate in or receive the benefit of some public
20
entity's services, programs, or activities; (3) the plaintiff was
21
either excluded from participation in or denied the benefits of the
22
public entity's services, programs, or activities, or was otherwise
23
discriminated against by the public entity; and (4) such exclusion,
24
denial
25
plaintiff's disability." Thompson v. Davis, 295 F.3d 890, 895 (9th
26
Cir. 2002).
of
Those
benefits,
do
not
elements
or
include
are:
"(1)
discrimination
20
a
request
the
was
for
plaintiff
by
reason
is
of
an
an
the
1
As defendants' only argument against plaintiffs' second theory
2
of ADA liability is that Lum never requested an accommodation, the
3
court DENIES defendants' request for summary judgment on the ADA
4
claim.
5
F. Claims Six and Seven: State Claims
6
Plaintiffs
assert
a
wrongful
death
claim
against
all
7
defendants and a false arrest claim against the arresting officers.
8
i. Immunity
9
The defendants assert that they are immune from plaintiffs'
10
state law causes of action for wrongful death and false arrest.
11
Defendants argue that two immunities apply in this instant case:
12
Government Code Section 845.8(a), and Government Code 855.8(a).
13
The former of those sections provides: "Neither a public
14
entity nor a public employee is liable for any injury resulting
15
from determining whether to parole or release a prisoner or from
16
determining the terms and conditions of his parole or release or
17
from determining whether to revoke his parole or release." The term
18
"prisoner" includes an individual arrested for intoxication and
19
released without charge. Teter v. City of Newport Beach, 30 Cal.
20
4th 446 (2003). The immunity applies to injuries to the released
21
prisoner. In Ladd v. County of San Mateo, 12 Cal. 4th 913 (1996),
22
the California Supreme Court held that the immunity in Section
23
845.8(b), concerning prisoners attempting to escape, applies to
24
injuries sustained by the escaping prisoner. There, the Court noted
25
that the statute uses broad terms, and that “the reasons for
26
providing immunity for injuries caused by fleeing prisoners apply
21
1
equally, or with greater force, to self-inflicted injuries.” Id.
2
at 919. “The chilling effect upon law enforcement and custodial
3
officers’ performance of their duties that would result from the
4
imposition of liability for a public employees’ failure to maintain
5
custody over a prisoner is the same whether that liability arises
6
from an injury to a third party or an injury to the escaped or
7
escaping prisoner.” Id. The same reasoning applies with respect to
8
Section 845(a), applicable here, and the immunity applies to
9
injuries caused to Lum by those who made the decision to release
10
him.
11
Plaintiffs assert their wrongful death claim against all
12
defendants. The Section 845(a) immunity only applies to decisions
13
to release a prisoner. Here, it may apply to any officer who made
14
the decision to release Lum, and any municipal defendant that may
15
otherwise have Monell liability for that decision. The Section
16
845(a) immunity cannot apply to the arresting officers or to
17
Officer Mendoza, who were uninvolved in the decision to release
18
Lum. Accordingly, only those defendants who were responsible for
19
the decision to release Lum are immune from the wrongful death
20
claim on the basis of Section 845.8(a), and are subject to summary
21
judgment on the basis of that immunity.
22
Government Code 855.8(a) provides: "Neither a public entity
23
nor a public employee acting within the scope of his employment is
24
liable for injury resulting from diagnosing or failing to diagnose
25
that a person is afflicted with mental illness or addiction or from
26
failing to prescribe for mental illness or addiction." Defendants
22
1
assert that this section shields all defendants from the wrongful
2
death claim.
3
Plaintiffs' claim, however, is not premised on diagnosis or
4
failure to diagnose.
5
physicians and have no training sufficient to diagnose.
6
of this claim is not a failure to diagnose, but rather a failure
7
to arrange for a properly credentialed person to diagnose.
8
noted in this court's prior order, defendants may still be liable
9
for e.g., failing to obtain medical care for Lum if he was in
10
obvious need of it. Plaintiffs' complaint alleges that defendants'
11
breached a duty of care by "failing to give Decedent a medical or
12
psychiatric evaluation and/or treatment and by deciding to release
13
him alone six miles from home, without money, shoes, a cellular
14
phone,
15
wherewithal to get home, shelter, or assistance."
without
means
Obviously the officers in this case are not
of
transportation
and
without
The crux
means
As
or
16
Curiously, a California court has held that immunity applies
17
when an arresting officer fails to relay information about an
18
arrestee's mental condition to jail personnel. See Johnson v.
19
County of Los Angeles, 143 Cal. App. 3d 298 (Cal. App. 2d Dist.
20
1983) (sheriff’s officers’ decisions the process of determining
21
whether to medicate a prisoner fall within the immunity established
22
by Section 855.8.) This court is bound by the decisions of the
23
California Supreme Court, Wainwright v. Goode, 464 U.S. 78, 84
24
(U.S. 1983). District courts are not bound by decisions of state
25
intermediate courts, Dimidowich v. Bell & Howell, 803 F.2d 1473
26
(9th Cir. 1986), but they are not free to disregard them in the
23
1
absence of other "persuasive data." West v. American Tel. & Tel.
2
Co., 311 U.S. 223, 61 S. Ct. 179, 85 L. Ed. 139 (1940). It appears
3
to this court that the plain language of the statute simply does
4
not support the intermediate court opinion.
5
the
6
855.8(a) provides no immunity.
remaining
portions
of
plaintiffs'
Thus, with respect to
wrongful
death
claim,
7
In their opposition to the motion for summary judgment,
8
plaintiffs attribute Lum's death to Officer Mendoza's failure to
9
provide medical treatment to Lum despite knowing that Lum was
10
bi-polar and that he should have been on medications. Opp'n 26.
11
Officer
12
internal policies with respect to the treatment of arrestees
13
with mental health issues, not to mention common decency.
14
question, however, is whether those failures resulted in Jeremy
15
Lum's death.
16
the immediate circumstances of his death.
17
whether the totality of the circumstances that are known are
18
sufficient for a reasonable jury to draw an inference of causation.
19
It appears to this court that it is a close question, but one left
20
to a trier of fact, at least in the first instance.
21
ii. False Arrest
Mendoza's
conduct
appears
to
have
violated
numerous
The
The plaintiffs have provided no direct evidence of
Thus, the question is
22
Plaintiffs' claim that the arresting officers arrested Lum
23
without probable cause, in violation of state tort law. For the
24
reasons discussed above, the court finds that there remains a
25
triable issue as to whether it was reasonable for the arresting
26
officers to arrest Lum for public intoxication. Accordingly,
24
1
defendants motion for summary judgment on this claim is DENIED.
2
IV. Conclusion
3
4
Defendants' Motion for Summary Judgment, ECF No. 71 is GRANTED
in part and DENIED in part.
5
[1] On plaintiffs' first claim for relief, summary judgment
6
is DENIED as to the arresting officers. The court will rule
7
on whether summary judgment should be granted as to the
8
municipal defendants after briefing from the parties, ordered
9
by this court on March 2, 2012.
10
[2] On plaintiffs' second claim for relief, summary judgment
11
is DENIED.
12
[3] On plaintiffs' third claim for relief, summary judgment
13
is GRANTED to defendants.
14
[4] On plaintiffs’ fourth claim for relief, summary judgment
15
is GRANTED to defendants.
16
[5] On plaintiffs’ fifth claim for relief, summary judgment
17
is DENIED.
18
[6] On plaintiffs sixth claim for relief, the court GRANTS
19
summary judgment to defendants who made the decision to
20
release LUM, and DENIES summary judgment to the arresting
21
officers and Officer Mendoza.
22
[7] On plaintiffs seventh claim for relief, the court DENIES
23
summary judgment.
24
IT IS SO ORDERED.
25
DATED:
March 22, 2012.
26
25
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