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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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 JERRY LUM, et al., 10 NO. CIV. S-10-1807 LKK/DAD Plaintiffs, 11 12 v. O R D E R 13 COUNTY OF SAN JOAQUIN, et al., 14 15 Defendants. / 16 17 This case arises from the death of Jeremy Lum, whose body was 18 discovered in the San Joaquin River three days after he was 19 released from San Joaquin County Jail. Pending before the court is 20 a motion for summary judgment by defendants. This order will 21 address all issues in that motion with the exception of whether any 22 entity has Monell liability. 23 I. Factual Background 24 The following facts are undisputed, unless noted. 25 Plaintiffs in this case are the parents of decedent Jeremy Lum 26 (“Lum”). Lum was diagnosed with bipolar disorder, and was admitted 1 1 to St. Joseph’s Behavioral Health Center for bipolar episodes on 2 multiple occasions between 2005 and 2009. Despite his disorder, Lum 3 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. 10 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 14 911. Lum was at the Archuletas door for approximately three 15 minutes, and then wandered around the Archuletas’ front yard 16 looking confused. Lum then walked across the street, stopped for 17 some time facing a light pole. Lum then entered the Fireside Inn, 18 a bar, and then exited. Plaintiffs assert that Lum was inside the 19 bar for less than one minute. See James Archuleta Depo. 23:3-19. 20 Lum then went to a nearby park and stood by some poles with his 21 dog. 22 Sergeants Steven Pease and Raymond Walters and Deputy Davis 23 (“the arresting officers”) contacted Lum. The arresting officers 24 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. 18 Deputy Davis transported Lum to the San Joaquin County Jail, 19 which is operated by San Joaquin County. At the jail, Lum told 20 Officer Mendoza that he was under the care of a doctor for his 21 bipolar condition during a medical screening questionnaire. Officer 22 Mendoza placed Lum in a holding cell shortly after midnight. Some 23 time between midnight and 6:00 a.m., Officer Mendoza observed Lum 24 trying to open imaginary doors inside the holding cell. 25 County policy requires officers to check on arrestees in 26 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. 5 A note was entered at 5:00 a.m. that Lum was observed by Nurse 6 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. 9 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 11 death was declared to be drowning caused, or contributed to, by 12 amphetamine and Orphenadrine toxicity. 13 Plaintiffs’ Second Amended Complaint (“SAC”) alleges the 14 following claims for relief arising from the facts described above: 15 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 21 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 19 A. First Claim: Section 1983 Claim for Violation of Decedent’s 20 Fourth Amendment Rights. 21 This claim is against defendants City of Lathrop, and Deputy 22 Davis, Sergeant Walters, 23 officers”). 24 unlawfully arrested Lum, and that “in the City of Lathrop, police 25 sergeants, including Sergeants Walters and Pease, are invested by 26 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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