Russo v. Yellowstone County et al

Filing 53

ORDER GRANTING 26 MOTION FOR SUMMARY JUDGMENT RE: SANDRA LEONARD, AND DENYING PLAINTIFFS 32 MOTION TO EXTEND TIME. Signed by Magistrate Judge Timothy J. Cavan on 3/12/2018. (JDR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
PATRICIA L. RUSSO-WOOD, as
personal representative of the Estate of
Steven Tyler Russo,

CV 17-38-BLG-TJC
ORDER GRANTING
MOTION FOR SUMMARY
JUDGMENT RE: SANDRA
LEONARD, AND
DENYING PLAINTIFF’S
MOTION TO EXTEND
TIME

Plaintiff,
vs.
YELLOWSTONE COUNTY, et al.,
Defendants.

Plaintiff Patricia L. Russo-Wood, as the personal representative of the Estate
of Steven Tyler Russo (“Plaintiff”), brings this action against Yellowstone County,
the City of Billings, and individual officers Brian Degele and Sandra Leonard.
Plaintiff asserts claims for negligence and civil rights violations after her son,
Steven Tyler Russo, committed suicide while being held as a pretrial detainee at
the Yellowstone County Detention Facility. (Doc. 3.) Presently before the Court
are Defendant Sandra Leonard’s Motion for Summary Judgment (Doc. 26), and
Plaintiff’s Motion to Extend Time to Respond to the Motion for Summary
Judgment. (Doc. 32.) Having considered the parties’ submissions the Court finds
Plaintiff’s Motion to Extend Time should be DENIED, and Leonard’s Motion for
Summary Judgment should be GRANTED.
///
1

I.

PROCEDURAL BACKGROUND
Plaintiff filed this lawsuit in the Montana Thirteenth Judicial District Court,

Yellowstone County, on June 2, 2016. (Doc. 4.) Thereafter, the action was
removed to this Court on March 17, 2017. (Doc. 1.)
On June 22, 2017, Plaintiff served her first set of Requests for Production of
Documents on the City of Billings. (Doc. 34 at ¶ 4.) The City of Billings
responded to the requests on July 31, 2017. (Id.)
On August 3, 2017, Leonard filed a Motion for Summary Judgment arguing
the claims against her for negligence and civil rights violations are barred by the
public duty doctrine and qualified immunity, respectively. (Doc. 26.)
On August 17, 2017, Plaintiff filed a motion seeking an extension of time to
respond to the summary judgment motion under Federal Rule of Civil Procedure
56(d), on grounds that she needed to conduct further discovery to respond to the
motion. (Doc. 33.)
Leonard filed an opposition, arguing Plaintiff has not been diligent, and that
Plaintiff failed to address how additional discovery will produce evidence creating
a genuine issue of material fact sufficient to defeat Leonard’s defenses. (Doc. 35.)
Plaintiff did not filed a reply.
On August 24, 2017, Plaintiff filed a response to the motion for summary
judgment. (Doc. 39.) Leonard filed a reply on August 28, 2017. (Doc. 41.)
2

II.

FACTUAL BACKGROUND 1
Decedent Steven Tyler Russo (“Russo”) was taken to the Yellowstone

County Detention Facility (“YCDF”) shortly after 9:00 a.m. on June 5, 2013.
(Doc. 28 at ¶ 11.) YCDF detention officers took custody and control of Russo
when he was brought into the sally port of the detention center. (Id. at ¶12.) He
was searched and placed into a holding cell pending his turn to be formally booked
into the facility. (Id.) While he was awaiting booking, Russo requested to shower
because he had soiled himself when he was tasered by law enforcement officers
during his arrest. (Id. at ¶ 13.) Russo was allowed to shower. (Id. at ¶ 14.)
Russo became emotional while he was taking a shower, and a YCDF officer
noted “inmate very emotional, bears watching.” (Id. at ¶ 14.) Then, while still in
the shower, Russo’s emotional state changed, and he began to laugh about being
tasered. (Id. at ¶ 15.)
At approximately 6:10 p.m. on June 5, Defendant Detective Sandra Leonard
(“Leonard”) arrived at YCDF to interview Russo. Leonard was investigating a
series of armed robberies in Billings and Russo was a suspect. (Id. at ¶ 35.)
Leonard did not arrest Russo or take him into custody. (Doc. 29 at ¶ 35.)

1

The background facts set forth here are relevant to the Court’s determination of
the pending motions for summary judgment and are taken from the parties’
submissions and are undisputed except where indicated.
3

Russo was taken to a conference room in the detention center to meet with
Leonard at approximately 6:15 p.m. (Doc. 28 at ¶ 36.) At 6:35 p.m., Russo signed
an Advisement of Rights form, which set forth Miranda warnings. (Id. at ¶ 37. 2)
Leonard states that shortly after beginning the interview, Russo invoked his
right to speak with an attorney, and therefore, she ceased the interview. (Doc. 29
at ¶¶ 22-24.) Leonard estimates the interview lasted approximately 7 minutes. (Id.
at ¶ 24.)
Leonard states that after the interview stopped, Russo requested to use her
cell phone to call his mother. (Doc. 29 at ¶ 25.) Leonard states she informed
Russo that YCDF staff controlled all incoming and outgoing phone calls in the
facility. (Id.) Therefore, she did not let him use her cell phone. (Id.; Doc. 40 at ¶
8.) But at Russo’s request, Leonard agreed to notify his mother that he was
detained at YCDF, and Russo gave Leonard a telephone number where he believed
his mother could be reached. (Id. at ¶ 26.)
Leonard states that in total, she spent less than 45 minutes with Russo.
(Doc. 29 at ¶ 34.) During that time, she did not observe any behavior on his part
that indicated he presented a suicide risk, or that he was in imminent risk of death

2

Plaintiff indicates she disputes Leonard’s Statement Undisputed Facts (“SUF”)
Nos. 35-37. (Doc. 40 at ¶ 3.) However, Plaintiff does not cite to any “specific
pleading, deposition, answer to interrogatory, admission or affidavit before the
court to oppose each fact” as required by Local Rule 56.1(b)(1)(B). Plaintiff
simply states she “does dispute” several of Leonard’s SUF.
4

or serious bodily injury to himself or others. (Doc. 29 at ¶¶ 29-32.) Plaintiff
contends Leonard was subjectively aware of Russo’s need for medical/mental
health care because she assessed him as a “very troubled person” in a later phone
call with Russo’s mother, and because Russo told her he had been using
methamphetamines for seven days with no sleep. (Doc. 40 at ¶ 8.) Leonard denies
that Russo told her he had been using methamphetamines for seven days, and had
not slept. (Id. at ¶ 33.) Leonard further states, however, that even if Russo would
have told her that, it would not have changed her opinion that he was not in
imminent danger or needed immediate mental health evaluation or referral to a
treatment facility. (Id.)
After Leonard interviewed Russo, Detention Officer Degele conducted a
classification interview with him. (Id. at ¶ 29.) The record indicates that Russo
denied being suicidal, denied having a history of suicide attempts, denied having
had any recent stressful experiences, and denied having been diagnosed with
mental illness or depression. (Doc. 28-6 at 64.) Russo also denied using drugs.
(Id. at 65.) Russo was untruthful regarding these matters, since it appears he had a
history of substance abuse and prior suicide attempts. 3 (Id. at ¶¶ 72-73.)

3

Russo had a history of substance abuse and mental health issues. (Doc. 28 at ¶¶
47-49.) Russo first attempted suicide when he was 17 years old. (Id. at ¶ 50.)
Prior to June 6, 2013, Russo had attempted suicide on at least 10 different
occasions. (Id. at ¶ 51.) Ms. Russo had involuntarily committed Russo to a mental
health facility due to concerns about his suicidal ideations. (Id. at ¶ 55.)
5

Nevertheless, Russo did not relay this history to Officer Degele on June 5, 2013,
and did not request YCDF detention officers to provide him with mental health
services. (Doc. 28 at ¶ 18.) Russo was returned to his holding cell after his
classification interview with Detention Officer Degele. (Id. at ¶ 38. 4)
Later in the evening of June 5, 2013, at approximately 8:42 p.m., Leonard
telephoned Russo’s mother, Patricia Russo. (Id. at ¶ 42; Doc. 29 at ¶ 38.) Leonard
told Ms. Russo that that her son was at YCDF. (Doc. 28-6 at 8; Doc. 29 at ¶ 40.)
Leonard states that during the call Ms. Russo discussed her concerns about her
son’s drug abuse and criminal behavior. (Doc. 29 at ¶ 42.) Leonard says Ms.
Russo did not express any concerns that her son was suicidal, or that he had
attempted suicide in the past. (Id. at ¶¶ 43-45.) Leonard described having what
she would consider a “mother to mother” conversation with Ms. Russo about
concerns and common experiences they both had with their sons. (Id. at ¶ 46.)
Plaintiff contends that during the phone call, Leonard told Ms. Russo, “I have been
a Billing police detective for many years. I have met many bad people and many
evil people, and I can tell you your son is neither. Your son is a very troubled
person.” (Doc. 40 at ¶ 4.) Plaintiff further asserts Leonard told her that Russo had
said during the interview that he had been using methamphetamines for seven days

4

Plaintiff disputes Leonard’s SUF No. 38, but again does not cite any evidence as
required by the Local Rules.
6

straight, with no sleep. (Id.)
On June 6, 2013, Russo attempted to call his mother from YCDF. (Doc. 28
at ¶ 45.) Later that day, Russo committed suicide by hanging himself in the
shower of YCDF between 2:00 p.m. and 2:20 p.m. (Id. at 2.)
On June 11, 2013, Leonard returned to her regular work shift following her
days off. (Doc. 29 at ¶ 49.) Leonard states that upon returning to work, she
learned that Russo had committed suicide. (Id. at 50.) Leonard called Ms. Russo
to express her condolences. (Doc. 28 at ¶ 46; Doc. 29 at ¶ 51.)
III.

DISCUSSION
A.

Plaintiff’s Motion for Extension of Time Under Rule 56(d)

The Court will first address Plaintiff’s Motion to Extend Time to Respond to
Motion for Summary Judgment. (Doc. 32.) The grounds for Plaintiff’s motion is
she needs additional time to conduct discovery to respond to the summary
judgment motion.
Federal Rule of Civil Procedure 56(d) provides:
If a nonmovant shows by affidavit or declaration that, for specified
reasons, it cannot present facts essential to justify its opposition, the
court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take
discovery; or
(3) issue any other appropriate order.
Fed. R. Civ. P 56(d).
7

To prevail on a Rule 56(d) motion, the moving party has the burden to show
“(1) it has set forth in affidavit form the specific facts it hopes to elicit from further
discovery; (2) the facts sought exist; and (3) the sought-after facts are essential to
oppose summary judgment.” Family Home & Fin. Ctr., Inc. v. Fed. Home Loan
Mortg., 525 F.3d 822, 827 (9th Cir. 2008). The party seeking discovery “must
make clear what information is sought and how it would preclude summary
judgment.” Margolis v. Ryan, 140 F.3d 850, 853 (9th Cir. 1998). Failure to
comply with Rule 56(d)’s requirements “is a proper ground for denying discovery
and proceeding to summary judgment.” Family Home & Fin. Ctr., Inc., 525 F.3d
at 827. A Rule 56(d) motion may also be denied if the moving party has not been
diligent in seeking discovery. Mackey v. Pioneer Nat. Bank, 867 F.2d 520, 524
(9th Cir. 1989).
Leonard argues Plaintiff had a sufficient opportunity to conduct discovery,
but chose not to proceed with any discovery against Leonard. Leonard states that
Plaintiff opted not to proceed with Leonard’s deposition in mid-July, despite the
fact that Plaintiff had obtained approximately 1,170 pages of discovery weeks
before the summary judgment motion was filed. Plaintiff counters she could not
effectively depose Leonard or other persons, until she received the final document
production from the City of Billings on July 31, 2017. The Court notes that
Plaintiff does not identify which document(s) produced on July 31, 2017 were
8

essential for an effective deposition. Nevertheless, even assuming Plaintiff was
diligent, the Court finds Plaintiff has failed to carry her burden under Rule 56(d).
First, Plaintiff has not shown how additional discovery is necessary in light
of the applicable deliberate indifference standard. Plaintiff alleges Leonard
violated Russo’s constitutional rights by exhibiting deliberate indifference to his
serious mental health needs. Plaintiff states additional discovery can establish
Leonard’s actual or subjective knowledge of Russo’s mental health needs.
Because Russo was a pretrial detainee, however, Plaintiff’s deliberate
indifference claim arises under the Due Process Clause of the Fourteenth
Amendment, as opposed to the Eighth Amendment’s Cruel and Unusual
Punishment Clause. 5 Castro v. County of Los Angeles, 833 F.3d at 1067-68. This

5

In the past, it was assumed that the standard applicable to a pretrial detainee’s
conditions of confinement claims brought under the Fourteenth Amendment was
the same state of mind requirement as an Eighth Amendment violation, i.e.,
subjective and deliberate indifference to a substantial risk of serious harm. See
Clouthier v. Cty. of Contra Costa, 591 F.3d 1232 (9th Cir. 2010). That holding
was called into question, however, by the United States Supreme Court in Kingsley
v. Hendrickson, 135 S.Ct. 2466, 2473 (2015). In Kingsley, the Supreme Court
applied an objective standard to excessive force claims under the Fourteenth
Amendment, eliminating the requirement that the pretrial detainee show that the
officers where subjectively aware that their use of force was unreasonable. Id. at
2472-73. More recently, the Ninth Circuit extended the Kingsley rationale to a
Fourteenth Amendment failure-to-protect claim. See Castro v. Cty. of Los Angeles,
833 F.3d 1060 (9th Cir. 2016). Although Castro did not expressly extend its
holding to other Fourteenth Amendment violations, the Court sees no reason why
the same rationale should not apply to Fourteenth Amendment medical care
claims.
9

distinction is significant because the test for deliberate indifference under the
Fourteenth Amendment is “purely objective,” whereas the test under the Eighth
Amendment contains a subjective component. Id. at 1071. See also Campos v.
County of Kern, 2017 WL 915294 (E.D. Cal. Mar. 7, 2017) (applying objective
standard to claim that jail officials were deliberately indifferent to pretrial
detainee’s medical needs, including those related to suicide prevention); Weishaar
v. County of Napa, 2016 WL 7242122 (N.D. Cal. Dec. 15, 2016) (same).
Under this standard, the elements of a Fourteenth Amendment deliberate
indifference claim are: “(1) the defendant made an intentional decision with respect
to the conditions under which the plaintiff was confined; (2) those conditions put
the plaintiff at substantial risk of suffering serious harm; (3) the defendant did not
take reasonable available measures to abate that risk, even though a reasonable
officer in the circumstances would have appreciated the high degree of risk
involved – making the consequences of the defendant’s conduct obvious; and (4)
by not taking such measures, the defendant caused the plaintiff’s injuries.” Castro,
833 F.3d at 1071. A pretrial detainee does not have to prove any subjective
elements about the officer’s actual awareness of the level of risk. Id. Thus, a
pretrial detainee must “prove more than negligence but less than subjective intent –
something akin to reckless disregard.” Id.
Consequently, since deliberate indifference under Fourteenth Amendment
10

does not contain a subjective component, Plaintiff does not need additional
discovery aimed at Leonard’s actual knowledge. Castro, 833 F.3d at1071.
Second, Plaintiff indicates a desire to challenge the veracity of Leonard’s
affidavit. However, “the mere hope that further evidence may develop prior to trial
and that such evidence will contradict the affidavits already in the record is
insufficient to support [a] motion for relief under Rule 56(d).” Rocky Mtn.
Biologicals, Inc. v. Microbix Biosystems, Inc., 986 F.Supp.2d 1187, 1203 (D.
Mont. 2013).
Finally, as Leonard persuasively argues, Plaintiff’s motion fails to establish
how the additional discovery is necessary in light of the qualified immunity
defense. The defense of qualified immunity is not only a defense to liability, but
also an immunity from suit. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). As
such, qualified immunity should be “adjudicated as early as possible, ordinarily
before trial and substantial discovery, to give the beneficiaries of the doctrine
immunity from litigation and not merely from a judgment.” Thompson v. Mahre,
110 F.3d 716, 719 (9th Cir. 1997). See also Anderson v. Creighton, 483 U.S. 635,
640 n.2 (1987) (noting the qualified immunity doctrine is meant to ensure “that
‘insubstantial claims’ against government officials be resolved prior to discovery
and on summary judgment if possible”).
As will be discussed more fully below, the Court finds Leonard is entitled to
11

qualified immunity. Additional discovery is therefore not necessary.
Accordingly, the Court finds that Plaintiff has failed to meet her burden to
establish that additional discovery is necessary.
B.

Leonard’s Motion for Summary Judgment

Summary judgment is appropriate under Rule 56(c) where the moving party
demonstrates the absence of a genuine issue of material fact and entitlement to
judgment as a matter of law. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). Material facts are those which may affect the outcome
of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute
as to a material fact is genuine if there is sufficient evidence for a reasonable factfinder to return a verdict for the nonmoving party. Id. “Disputes over irrelevant
or unnecessary facts will not preclude a grant of summary judgment.” T.W. Elec.
Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987).
The party seeking summary judgment always bears the initial burden of
establishing the absence of a genuine issue of material fact. Celotex, 477 U.S. at
323. The moving party can satisfy this burden in two ways: (1) by presenting
evidence that negates an essential element of the non-moving party’s case; or (2)
by demonstrating that the non-moving party failed to make a showing sufficient to
establish an element essential to that party’s case on which that party will bear the
burden of proof at trial. Id. at 322-23. If the moving party fails to discharge this
12

initial burden, summary judgment must be denied and the court need not consider
the non-moving party’s evidence. Adickes v. S. H. Kress & Co., 398 U.S. 144,
159-60 (1970).
If the moving party meets its initial responsibility, the burden then shifts to
the opposing party to establish that a genuine issue as to any material fact actually
does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). In attempting to establish the existence of this factual dispute, the
opposing party must “go beyond the pleadings and by ‘the depositions, answers to
interrogatories, and admissions on file,’ designate ‘specific facts showing that there
is a genuine issue for trial.’” Celotex, 477 U.S. at 324 (quoting Fed. R. Civ. P.
56(e)). The opposing party cannot defeat summary judgment merely by
demonstrating “that there is some metaphysical doubt as to the material facts.”
Matsushita, 475 U.S. at 586; Triton Energy Corp. v. Square D Co., 68 F.3d 1216,
1221 (9th Cir. 1995) (“The mere existence of a scintilla of evidence in support of
the nonmoving party’s position is not sufficient.”) (citing Anderson, 477 U.S. at
252).
When making this determination, the Court must view all inferences drawn
from the underlying facts in the light most favorable to the non-moving party. See
Matsushita, 475 U.S. at 587. “Credibility determinations, the weighing of
evidence, and the drawing of legitimate inferences from the facts are jury
13

functions, not those of a judge, [when] he [or she] is ruling on a motion for
summary judgment.” Anderson, 477 U.S. at 255.
“The district court may limit its review to the documents submitted for the
purpose of summary judgment and those parts of the record specifically referenced
therein.” Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1030 (9th
Cir. 2001). Therefore, the court is not obligated “to scour the record in search of a
genuine issue of triable fact. Kennan v. Allen, 91 F.3d 1275, 1279 (9th Cir. 1996)
(citing Richards v. Combined Ins. Co. of Am., 55 F.3d 247, 251 (7th Cir. 1995)).
1.

Plaintiff’s Negligence Claim Against Leonard

Leonard argues Plaintiff’s negligence claim fails because Leonard did not
owe a duty to Russo, and the public duty doctrine bars her claim. Plaintiff counters
that Leonard had a duty to obtain mental health care for Russo. She maintains that
Russo was in Leonard’s custody for 45 minutes on June 5, 2013, and therefore, the
special relationship exception to the public duty doctrine applies in this case.
Negligence requires proof of a legal duty, breach of that duty, causation and
damages. Krieg v. Massey, 781 P.2d 277, 278-79 (Mont. 1989.) “The existence of
a duty is a question of law for determination by the court.” Morrow v. Bank of
Am., N.A., 324 P.3d 1167, 1177 (Mont. 2014).
“Generally, a party cannot recover in negligence for the suicide of another
‘since the act or suicide is considered a deliberate intervening act exonerating the
14

defendant from legal responsibility.’” Gourneau v. Hamill, 311 p.3d 760, 763
(Mont. 2013). However, a duty to prevent suicide may exist under certain
circumstances, such as in a custodial setting where the suicide is foreseeable.
Krieg, 781 P.2d at 278-79; Gourneau, 311 P.3d at 763.
When considering a negligence claim against a public entity or law
enforcement officer, it is necessary to consider the public duty doctrine. Eklund v.
Trost, 151 P.3d 870, 878 (Mont. 2006). “The public duty doctrine provides that a
governmental entity cannot be held liable for an individual plaintiff’s injury
resulting from a governmental officer’s breach of a duty owed to the general public
rather than to the individual plaintiff.” Massee v. Thompson, 90 P.3d 394, 403
(Mont. 2004). “[T]he public duty doctrine expresses the policy that an officer's
overarching duty to protect and preserve the peace is owed to the public at large,
not to individual members of the public.” Nelson v. State, 195 P.3d 293, 301
(Mont. 2008). Under the doctrine, a police officer generally has no duty to protect
a particular individual absent a special relationship. Nelson v. Driscoll, 983 P.2d
972, 977 (Mont. 1999). The doctrine, therefore, “generally shields law
enforcement officers from claims of negligence.” Eklund, 151 P.3d at 878.
Nevertheless, an exception arises “when there exists a special relationship between
the police officer and an individual giving rise to special duty that is more
particular than the duty owed to the public at large.” Nelson v. Driscoll, 983 P.2d
15

972, 978 (Mont. 1999). A special relationship can be established in one of four
ways:
(1) by a statute intended to protect a specific class of persons of which
the plaintiff is a member from a particular type of harm; (2) when a
government agent undertakes specific action to protect a person or
property; (3) by governmental actions that reasonably induce
detrimental reliance by a member of the public; and (4) under certain
circumstances, when the agency has actual custody of the plaintiff or
of a third person who causes harm to the plaintiff.
Id.
Leonard encountered Russo in the course and scope of her duties as a law
enforcement officer. Therefore, the public duty doctrine bars Plaintiff’s negligence
claim unless a special relationship is shown. In this case, the issue is whether a
special relationship existed on the basis that Leonard had actual custody of Russo.
The terms “custody and custodial relationship” mean “a degree of control akin to
possession, or a degree of control which results in a physical or legal restraint on
one’s liberty.” Nelson, 983 P.2d at 981. Examples of custodial relationships
include “jailer-inmate.” Id. (emphasis added).
The Court finds Russo was not in Leonard’s custody. Rather, Russo was in
the custody of YCDF before, during and after his interview with Leonard.
According to the undisputed facts, Russo was arrested and taken to YCDF on the
morning of June 5, 2013. (Doc. 28 at ¶ 11.) It is also undisputed that YCDF
detention officers took control and custody of Russo when he was brought into the
16

sally port of the detention facility. (Id. at ¶ 5, 12.) Leonard has submitted a video
that shows when Russo arrived at YCDF through the sally port, detention center
staff took physical control of him as soon as he exited the patrol car. (Doc. 31.)
Thereafter, he was escorted through the facility by YCDF detention officers. (Id.)
Russo had been held at the facility for approximately 9 hours before Leonard
arrived to interview him, and he remained there after she left until his death the
following day. (Doc. 28 at ¶¶ 1, 11, 36, 38.) The interview took place within the
facility. (Id. at ¶ 36.) As Leonard points out, YCDF was responsible for all
conditions of Russo’s confinement. (Doc. 27 at 11.) YCDF had “immediate
charge and control” of Russo while he was detained there, and he could not be
considered to be in the custody of a visitor who came to interview him. Nelson,
983 P.2d at 979. Plaintiff offers no legal or factual support to establish otherwise.
Therefore, Plaintiff’s negligence claim against Leonard is barred by the
public duty doctrine.6
2.

Plaintiff’s §1983 Claim Against Leonard

As to Plaintiff’s civil rights claim under 42 U.S.C. § 1983, Plaintiff alleges
Leonard violated Steven Russo’s constitutional rights under the Fourteenth

6

Leonard argues she is entitled to have the negligence claim against her dismissed
based on statutory immunity under Mont. Code Ann. § 2-9-305. Because the
Court finds the negligence claim against Leonard is barred by the public duty
doctrine, the Court does not address this argument.
17

Amendment by exhibiting deliberate indifference to a serious mental health need.
Specifically, Plaintiff argues Leonard wrongfully denied Russo the right to call his
mother and failed to refer him for an assessment by a mental health provider.
(Doc. 39-1 at 8.) Plaintiff argues Leonard should have known Russo needed a
mental health assessment because he told Leonard he had been using
methamphetamine for seven days with no sleep. (Id.) Leonard counters that Russo
did not have a constitutional right to use her cell phone. She also contends she had
no knowledge or reason to believe Russo was an imminent suicide risk, even
assuming she knew about his drug use, and that she is entitled to qualified
immunity.
Qualified immunity shields federal and state officials from civil liability
under 42 U.S.C. § 1983 if “their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “To determine whether an officer
is entitled to qualified immunity, a court must evaluate two independent questions:
(1) whether the officer’s conduct violated a constitutional right, and (2) whether
that right was clearly established at the time of the incident.” Castro v. County of
Los Angeles, 833 F.3d 1060, 1066 (9th Cir. 2016). The court has discretion to
decide which of the two prongs of the qualified immunity analysis should be
addressed first. Pearson v. Callahan, 555 U.S. 223, 236 (2009).
18

“A clearly established right is one that is ‘sufficiently clear that every
reasonable official would have understood that what he is doing violates that
right.’” Mullenix v. Luna, 136 S.Ct. 305, 308 (2015) citing Reichle v. Howards,
132 S.Ct. 2088, 2093 (2012). The Supreme Court has cautioned that clearly
established law should not be defined at a high level of generality. Id. The inquiry
“must be undertaken in light of the specific context of the case, not as a broad
general proposition.” Id. It is not necessary to find a case directly on point, “in
which the very action in question has been held unlawful,” but “in the light of preexisting law the unlawfulness must be apparent.” Anderson v. Creighton, 483 U.S.
635, 640 (1987). “Put simply, qualified immunity protects ‘all but the plainly
incompetent or those who knowingly violate the law.’” Id. citing Malley v. Briggs,
475 U.S. 335, 341 (1986).
The plaintiff bears the burden of proving the existence of a clearly
established right at the time of the alleged misconduct. Maraziti v. First Interstate
Bank, 953 F.2d 520, 523 (9th Cir. 1992). If the plaintiff meets this burden, the
defendant then bears the burden to show that her actions were reasonable, even if
they might have violated the plaintiff’s rights. Id. “[R]egardless of whether the
constitutional violation occurred, the officer should prevail if the right asserted by
the plaintiff was not ‘clearly established’ or the officer could have reasonably
believed that his particular conduct was lawful.” Romero v. Kitsap Cty., 931 F.2d
19

624, 627 (9th Cir. 1991).
a.

Right to Use Cell Phone

Plaintiff argues Leonard’s denial of Russo’s request to use her cell phone to
call his mother constituted deliberate indifference to his serious mental health
needs. The Court finds a pretrial detainee does not have a clearly established
constitutional right to use a police detective’s cell phone. The cases Plaintiff cites
in support of her claim are inapposite. Harris v. Maloughney, 827 F.Supp. 1488,
1494-96 (D. Mont. 1993) dealt with mail confidentiality and phone monitoring in
the prison context. The Court affirmed that prison inmates are entitled to
confidential mail and telephone communications with their attorneys. Id.
Similarly, Procunier v. Martinez, 416 U.S. 396 (1974) dealt with censorship of
prisoner mail. Neither of these cases stand for any broader proposition that a
pretrial detainee has a constitutional right to use a law enforcement officer’s cell
phone to call a non-attorney. Accordingly, the Court finds Russo is entitled to
qualified immunity to the extent Plaintiff’s claim is based on her failure to allow
Russo to use her cell phone.
b.

Mental Health Evaluation

Plaintiff also argues Leonard exhibited deliberate indifference to Russo’s
serious risk of suicide by failing to refer him for a mental health assessment after
he told her he had been using methamphetamine and not slept in seven days. The
20

Court will address the second prong of the qualified immunity test first, as it is
dispositive of Plaintiff’s claim.
At the time of Russo’s suicide, it was clearly established that a pretrial
detainee had a constitutional right against deliberate indifference to the detainee’s
serious risk of suicide. 7 Van Orden v. Downs, 609 Fed. Appx. 474, 475 (9th Cir.
2015) citing Conn v. City of Reno, 591 F.3d 1081, 1102 (9th Cir. 2010). However,
“[i]t is insufficient that the broad principle underlying a right is well-established.”
Mitchell v. Washington, 818 F.3d 436, 447 (9th Cir. 2016). See also Saucier v.
Katz, 533 U.S. 194, 202 (2001). “The clearly established right must be framed in
light of the specific context and particular facts of the case. Mullenix, 136 S.Ct. at
308. Thus, the issue is whether it would have been clear to a reasonable officer in
Leonard’s position, that her conduct was unlawful in the situation she was
confronted. Id.
Here, Plaintiff has not cited, and the Court is unaware of any case holding
that there is clearly established constitutional right to suicide intervention when the

7

Leonard argues she is entitle to qualified immunity pursuant to Taylor v. Barkes,
135 S.Ct. 2042 (2015), which held there is no clearly established right to the proper
implementation of adequate suicide prevention protocols. However, the
constitutional right asserted in this case is different from that presented in Taylor.
Taylor addressed the right to be properly screened for suicide. Whereas, here the
right is to be free from deliberate indifference to a serious medical need, namely, a
serious risk of suicide. Therefore, the Court does not find Taylor controls the
outcome of this case.
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detainee was not exhibiting a specific suicide risk. At most, Russo indicated that
he had been abusing drugs and was sleep deprived, which does not equate to being
suicidal. Therefore, this case is distinguishable from other cases in the Ninth
Circuit involving custodial suicide.
In every case the Court has reviewed where qualified immunity was
rejected, the decedent had exhibited a specific suicide risk by threatening suicide,
making suicidal statements, attempting suicide, engaging in self-harming behavior,
or had disclosed mental or emotional problems. See e.g. Clouthier v. Cty. of
Contra Costa, 591 F.3d 1232 (9th Cir. 2010); Conn v. City of Reno, 591 F.3d 1081
(9th Cir. 2010); Atayde v. Napa State Hosp., 2017 WL 2289351 (E.D. Cal. May
25, 2017); Campos v. Cty. of Kern, 2017 WL 915294 (E.D. Cal. March 7, 2017);
Weishaar v. Cty. of Napa, 2016 WL 7242122 (N.D. Cal. Dec. 15, 2016). Here, it
is undisputed that Russo did not threaten suicide or make any specific suicidal
statements to Leonard; he did not disclose his mental health history or prior suicide
attempts to YCDF staff; and he did not request mental health services. (Doc. 28 at
¶¶ 18, 72, 73; Doc. 29 at ¶ 30; Doc. 40 at ¶ 4.)
Therefore, the Court finds it was not clearly established that Leonard would
have had a legal duty to refer Russo for a mental health assessment based on the
circumstances she was presented with. Accordingly, the Court finds Leonard is
entitled to qualified immunity.
22

III.

CONCLUSION

For the foregoing reasons, IT IS HEREBY ORDERED that:
1.

Plaintiff’s Motion to Extend Time to Respond to Defendant Sandra

Leonard’s Motion for Summary Judgment is DENIED;
2.

Defendant Sandra Leonard’s Motion for Summary Judgment is

GRANTED.
SO ORDERED.
DATED this 12th day of March 2018.
_______________________________
TIMOTHY J. CAVAN
United States Magistrate Judge

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