Opinion
NO. CIV. S-10-1807 LKK/DAD
03-22-2012
JERRY LUM, et al., Plaintiffs, v. COUNTY OF SAN JOAQUIN, et al., Defendants.
ORDER
This case arises from the death of Jeremy Lum, whose body was discovered in the San Joaquin River three days after he was released from San Joaquin County Jail. Pending before the court is a motion for summary judgment by defendants. This order will address all issues in that motion with the exception of whether any entity has Monell liability.
I. Factual Background
The following facts are undisputed, unless noted.
Plaintiffs in this case are the parents of decedent Jeremy Lum ("Lum"). Lum was diagnosed with bipolar disorder, and was admitted to St. Joseph's Behavioral Health Center for bipolar episodes on multiple occasions between 2005 and 2009. Despite his disorder, Lum played sports in high school and graduated from U.C. Berkeley. Lum worked for a family company and lived on his own.
On July 8, 2008, Lum's father went to Lum's house to pick him up for dinner. Lum was asleep, and Mr. Lum woke him up to tell him that it was time for dinner. Lum did not know it was dinner time, and refused to go with Mr. Lum. Mr. Lum was surprised by Lum's behavior.
Later that evening, Lum appeared at the Archuleta residence, which is .3 miles from his home. Lum was wearing shorts and a t-shirt, but no shoes. Lum said that he was looking for a female with a name that the Archuletas did not know. Jestina Archuleta called 911. Lum was at the Archuletas door for approximately three minutes, and then wandered around the Archuletas' front yard looking confused. Lum then walked across the street, stopped for some time facing a light pole. Lum then entered the Fireside Inn, a bar, and then exited. Plaintiffs assert that Lum was inside the bar for less than one minute. See James Archuleta Depo. 23:3-19. Lum then went to a nearby park and stood by some poles with his dog.
Sergeants Steven Pease and Raymond Walters and Deputy Davis ("the arresting officers") contacted Lum. The arresting officers are all employees of the San Joaquin County Sheriff's Department. According to a declaration by San Joaquin County Sheriff's Department Lieutenant John Williams, the county Sheriff's Department "provides the City of Lathrop police services pursuant to contract." Decl. Williams.
Lum had vomit on his shirt, and appeared confused and disoriented.
At some point, the officers decided to arrest Lum and take him to jail, although the facts surrounding this decision are heavily disputed by the parties. It is undisputed that at least Sergeant Pease thought that Lum was having a mental health episode.
Before taking him to jail, the officers attempted to locate Lum's family. Sergeant Walters called Lum's father's cell phone, and the call went to voicemail. Sergeants Pease and Walters took Lum's dog to Lum's home.
Mr. Archuleta testified that he asked one of the officers what was going on, and the officer responded "we think he's off his meds." Each of the officers denies saying this to Mr. Archuleta. Lum did not tell the arresting officers that he had any mental disorder.
Deputy Davis transported Lum to the San Joaquin County Jail, which is operated by San Joaquin County. At the jail, Lum told Officer Mendoza that he was under the care of a doctor for his bipolar condition during a medical screening questionnaire. Officer Mendoza placed Lum in a holding cell shortly after midnight. Some time between midnight and 6:00 a.m., Officer Mendoza observed Lum trying to open imaginary doors inside the holding cell.
County policy requires officers to check on arrestees in sobering cells ever 15 minutes and to make a note of these checks on an inmate observation log. See San Joaquin County Sheriff's Department Custody Division Policy Manual Section 3.1.0., Ex. B to Moule Decl., ECF No. 78. Officer Mendoza did not check on Lum every 15 minutes, but he recorded on the log that he did so.
A note was entered at 5:00 a.m. that Lum was observed by Nurse Velarde. At 6:00 a.m., release officer Fernandez started her shift. She reviewed the files of inmates scheduled for release that morning. Fernandez released Lum at 7:30 a.m.
Lum's family reported him missing on July 9, 2009. On July 12, 2009, Lum's body was found in the San Joaquin River. The cause of death was declared to be drowning caused, or contributed to, by amphetamine and Orphenadrine toxicity.
Plaintiffs' Second Amended Complaint ("SAC") alleges the following claims for relief arising from the facts described above: Section 1983 Claim for Violation of Decedent's Fourth Amendment Rights; Section 1983 Claim for Violation of Plaintiffs' Fourteenth Amendment Rights; Section 1983 Claim for Inadequate and Reckless Training; Violation of the Americans with Disabilities Act; Wrongful Death-Negligence; and False Arrest.
II. Standard for a Motion for Summary Judgment
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Ricci v. DeStefano, 557 U.S. 557, 129 S. Ct. 2658, 2677 (2009) (it is the movant's burden "to demonstrate that there is 'no genuine issue as to any material fact' and that they are 'entitled to judgment as a matter of law'"); Walls v. Central Contra Costa Transit Authority, 653 F.3d 963, 966 (9th Cir. 2011) (same). Consequently, "[s]ummary judgment must be denied" if the court "determines that a 'genuine dispute as to [a] material fact' precludes immediate entry of judgment as a matter of law." Ortiz v. Jordan, 562 U.S. _, 131 S. Ct. 884, 891 (2011), quoting Fed. R. Civ. P. 56(a); Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, _ F.3d _, 2011 WL 4336667 at 3 (9th Cir. September 16, 2011) (same).
Under summary judgment practice, the moving party bears the initial responsibility of informing the district court of the basis for its motion, and "citing to particular parts of the materials in the record," Fed. R. Civ. P. 56(c)(1)(A), that show "that a fact cannot be ... disputed." Fed. R. Civ. P. 56(c)(1); In re Oracle Corp. Securities Litigation, 627 F.3d 376, 387 (9th Cir. 2010) ("The moving party initially bears the burden of proving the absence of a genuine issue of material fact"), citing Celotex v. Catrett, 477 U.S. 317, 323 (1986).
If the moving party meets its initial responsibility, the burden then shifts to the non-moving party to establish the existence of a genuine issue of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986); Oracle Corp., 627 F.3d at 387 (where the moving party meets its burden, "the burden then shifts to the non-moving party to designate specific facts demonstrating the existence of genuine issues for trial"). In doing so, the non-moving party may not rely upon the denials of its pleadings, but must tender evidence of specific facts in the form of affidavits and/or other admissible materials in support of its contention that the dispute exists. Fed. R. Civ. P. 56(c)(1)(A).
"In evaluating the evidence to determine whether there is a genuine issue of fact," the court draws "all reasonable inferences supported by the evidence in favor of the non-moving party." Walls, 65.3 F.3d at 966. Because the court only considers inferences "supported by the evidence," it is the non-moving party's obligation to produce a factual predicate as a basis for such inferences. See Richards v. Nielsen Freight Lines, 810 F.2d 898, 902 (9th Cir. 1987). The opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts .... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 586-87 (citations omitted).
III. Analysis
A. First Claim: Section 1983 Claim for Violation of Decedent's Fourth Amendment Rights.
This claim is against defendants City of Lathrop, and Deputy Davis, Sergeant Walters, and Sergeant Pease (the "arresting officers"). Plaintiffs allege that the arresting officers unlawfully arrested Lum, and that "in the City of Lathrop, police sergeants, including Sergeants Walters and Pease, are invested by law-or by custom or usage having the force of law-with final policymaking authority to effect arrests and/or ratify or sanction arrests made by other officers." Second Amended Complaint ("SAC") ¶ 56, ECF No. 26. Plaintiffs allege that the City of Lathrop is liable pursuant to Monell v. Department of Social Services, 365 U.S. 167 (1978), because Sergeants Walker and Pease were acting as municipal officials. Plaintiffs allege that the City of Lathrop has a custom, policy, practice, or procedures pertaining to the treatment and temporary detention of people arrested pursuant to California Penal Code § 647(f), which makes it a misdemeanor to be intoxicated in public.
Defendants claim that the arresting officers are entitled to qualified immunity, and that the arresting officers do not have final policy-making authority for the City of Lathrop. The question of whether the City is liable for the arresting officers' conduct under a Monell theory will be addressed in a later order of this court, following additional briefing from the parties.
i. Qualified Immunity
Qualified immunity "protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Pearson v. Callahan, 129 S.Ct. 808, 815, 172 L. Ed. 2d 565 (2009). In order to be clearly established, "the contours of the right must be sufficiently clear" so as to be obvious to a reasonable official. Anderson v. Creighton, 483 U.S. 635, 640 (1978). To meet this standard, the right alleged to be violated cannot be only the "general constitutional guarantee (e.g., the Fourth Amendment freedom from unreasonable searches and seizures), but its application in a particular context." Baker v. Racansky, 887 F.2d 183, 186 (9th Cir. 1989) (citing Anderson, 483 U.S. at 639-40 and Todd v. United States, 849 F.2d 365, 370 (9th Cir. 1988)).
A warrantless arrest by an officer is reasonable under the Fourth Amendment where there is probable cause to believe that a criminal offense has been or is being committed. Devenpeck v. Alford, 543 U.S. 146, 153 (2004). Whether probable cause exists depends on the reasonable conclusion to be drawn from the facts known to the arresting officer at the time of the arrest. Id. An officer's subjective reason for making the arrest is not relevant. "Evenhanded law enforcement is best achieved by the application of objective standards of conduct, rather than standards that depend on the subjective state of mind of the officer." Horton v. California, 496 U.S. 128, 138 (1990).
Qualified immunity shields arresting officers from suit for damages if "a reasonable officer could have believed the arrest to be lawful, in light of clearly established law and the information the [arresting] officers possessed." Anderson v. Creighton, 483 U.S. 635, 641 (1987). Even law enforcement officials who "reasonably but mistakenly conclude that probable cause is present" are entitled to immunity. Hunter v. Bryant, 502 U.S. 224, 227 (1991).
A § 1983 defendant is entitled to summary judgment if "discovery fails to uncover evidence sufficient to create a genuine issue as to whether the defendant" violated clearly established law. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Summary judgment on qualified immunity is not proper unless the evidence permits only one reasonable conclusion. Where "conflicting inferences may be drawn from the facts, the case must go to the jury." Munger v. City of Glasgow Police Dep't, 227 F.3d 1082, 1087 (9th Cir. 2000).
Here, the arresting officers are entitled to qualified immunity if, under the circumstances, it was reasonable for the officers to believe that plaintiff was intoxicated. The arresting officers are entitled to summary judgment if there is no genuine issue as to whether it was reasonable for the officers to believe that plaintiff was intoxicated. Drawing all inferences in favor of the non-moving party, the court cannot conclude, on the record before it, that this was a reasonable belief under the circumstances.
James Archuleta, who had a three minute conversation with Lum shortly before his arrest, testified that Lum "looked like he was walking fine," and did not recall him stumbling. Depo. James Archuleta 24:18-20. Mr. Archuleta asserted that "there was no slurring. I could understand what he was saying." Id. 25:17-18. Mr. Archuleta testified that he did not smell any alcohol on Lum, despite having talked with him at a distance of about three feet. Id. 49:2. Mr. Archuleta also testified that he asked one of the officers what was going on with Lum, and the officer responded "Well, we think he's off his meds." Id. 42:2.
The Arrest Report dated July 8, 2009 charged Lum with public intoxication, California Penal Code §647(f). The check box for "mumbles/slurred" is checked, but no narrative description is included. A second page of the Arrest Report is dated July 11, 2009, two days after Lum was reported missing, and states that Lum was staggering, with red watery eyes, slurred speech, and the odor of alcohol.
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.
A report prepared by Sergeant Walters states that prior to July 8, 2009 Walters "was familiar with Jeremy Lum having a mental health condition." Missing Person Report, Ex. 14 to Walker Decl., ECF No. 88.
Sergeant Pease testified that Lum was "slurring" and that he was exhibiting signs of a person suffering from mental illness. Depo. Pease, 29:15-31:1. Pease testified "The answers [Lum] would give to questions weren't connected to the questions, complete disconnect. In my opinion, it appeared he was having visual hallucinations, seeing things that weren't there. Those would be things that mostly made me believe there was mental health issues." Id. 31:3-8. Pease also testified that the arresting officers discussed the fact that Lum was having a mental health episode, but that he also was intoxicated. Id. 45:18-22.
Mr. Crabtree, a bartender at the Fireside Inn testified that he spoke to Lum after Lum left the Archuleta residence, but before the police arrived. Mr. Crabtree testified that Lum appeared steady on his feet, and that he did not mumble or have slurred speech. Depo. Crabtree 23:20-28:3. Mr. Crabtree testified that nothing in his interaction with Lum on July 8 suggested that Lum had been drinking. Id. 41:2-7.
Defendants offer a deposition of plaintiffs police expert, Stephen D'Arcy as evidence that it would have been reasonable for the officers to arrest Lum under §647(f). Contrary to defendants' assertion, MSJ 11, D'Arcy did not agree that it was reasonable to arrest Lum. D'Arcy stated that it would have been reasonable assuming that "all of the elements of the crime were present and the officers have made that decision based upon constitutional standards." Depo. D'Arcy 113: 5-7.
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.
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Plaintiffs' psychiatry expert testified that many of the symptoms of mental illness that Lum displayed on a videotape from the jail, could also be symptoms of alcohol intoxication. Depo. Saldanha.
The court concludes that there remains a genuine issue as to whether the defendants had probable cause to arrest Lum for public intoxication. Based on the evidence submitted, the court cannot conclude that it is uncontestable that a reasonable officer would have believed that probable cause existed for the arrest under the circumstances. Hunter v. Bryant, 502 U.S. 224, 227 (1991). Accordingly, defendants are not entitled to summary judgment on the basis of qualified immunity.
B. Second Claim: Section 1983 Claim for Violation of Plaintiffs' Fourteenth Amendment Rights
This claim is alleged against the arresting officers and Officer Mendoza. Plaintiffs allege that Lum was a pre-trial detainee, creating a special relationship between the decedent and the defendants and giving rise to a duty not to leave Lum in a situation that was more dangerous than the one they found him in. Specifically, plaintiffs allege that by failing to administer a medical or psychological evaluation at the time of arrest and detention, and by releasing him six miles from home without money, shoes, a phone, or a means of transportation, the defendants placed Lum in a situation that was more dangerous than the one they found him in.
Generally, public officials are not liable for omissions. See, e.g., DeShaney v. Winnebago County Dep't of Social Services, 489 U.S. 189 (1989). There are two exceptions to this general rule: the state-created danger exception, and the special relationship exception. Where there is "affirmative conduct on the part of the state in placing the plaintiff in danger," an official may be liable for harm that occurs. L.W. v. Grubbs, 974 F.2d 119, 121 (9th Cir. 1992). This "state-created danger" exception has been found where a police officer ejected a woman from a vehicle in a high-crime area where she was subsequently raped, Wood v. Ostrander, 879 F.2d 583 (9th Cir. 1989); where police officers detained an intoxicated woman one third of a block from her home on a cold night and then released her to walk home alone after sending her husband home, and the plaintiff suffered from hypothermia, Kneipp v. Tedder, 95 F.3d 1199 (3d Cir. 1996); and where officers ejected a drunk patron from a bar on a freezing Montana night where he died from hypothermia, Munger v. City of Glasgow Police Dep't, 227 F.3d 1082, 1087 (9th Cir. 2000). In each of these cases, the court concluded that the plaintiff was in a worse position after the officers intervened, and that the state acted with deliberate indifference to a known or obvious danger. Patel v. Kent Sch. Dist., 648 F.3d 965 (9th Cir. 2011).
Under the "special relationship" exception, an officer may also be liable for an omission "when a state takes a person into its custody and holds him there against his will," including by incarceration. Patel v. Kent Sch. Dist., 648 F.3d 965 (9th Cir. 2011). This exception only applies when a person is in custody.
In this case, plaintiffs allege under both the special relationship and the state-created danger theories, although they conflate the two.
i. Special Relationship
Defendants argue that any special relationship between Lum and defendants terminated once Lum was released from jail, and Lum died after being released from custody.
In Coscia v. Town of Pembroke, 659 F.3d 37 (1st Cir. 2011), the court held that "in the absence of a risk of harm created or intensified by state action there is no due process liability for harm suffered by a prior detainee after release from custody in circumstances that do not effectively extend any state impediment to exercising self-help or to receiving whatever aid by others may normally be available." In Coscia, the plaintiff exhibited signs of mental distress while in custody and committed suicide shortly after being released.
The court finds the Coscia holding to be inapplicable here, because there is a triable issue as to whether the risk of harm to Lum was intensified during his arrest and detention, where he had no access to his medications under the circumstances noted above.
ii. State-Created Danger
Plaintiffs allege that by failing to administer a medical or psychological evaluation during Lum's detention, the defendants placed Lum in a situation more dangerous than the one they found him in. Specifically, prior to Lum's arrest, he was closer to home than when he was released from jail, less in need of medication, and he had his dog with him.
Plaintiffs allege that defendants acted with deliberate indifference towards a known danger to plaintiffs. Plaintiffs have provided evidence that Officer Mendoza falsified an observation log by recording that he had checked on Lum in the sobering cell when, in fact, he hadn't checked on him as required by policy. According to plaintiffs, Nurse Naval reported finding Lum alert and oriented, even though the time of her examination was after Lum had been released and had left the jail. Further, Lum told Officer Mendoza that he was bipolar and under the care of a Dr. Lee, and that he was taking medications. Officer Mendoza testified that he did not know what "bipolar" meant, Depo. Mendoza 79:14-15, and he proceeded to process Lum as an intoxicated person, and noted "No medical conditions," into the jail's database. Mendoza did not call a nurse to examine Lum at that time because, in his opinion, "you don't call a nurse for drunk people." Id. 87: 10-11.
The court finds that a reasonable jury could find that by arresting, detaining, and then releasing Lum without conducting a proper medical evaluation, defendants put him in a more dangerous state than he was in prior to arrest. A jury could conclude that Lum's mental condition worsened while he was held in jail overnight with no access to his medication. The court also finds that there is a triable issue as to whether Officer Mendoza was deliberately indifferent to Lum's well being.
The arresting officers did apparently fail to alert jail personnel that Lum appeared to be having a mental health episode. Given the disputed facts under these circumstances, the court cannot find the arresting officers were not deliberately indifferent to Lum's well being.
Accordingly, the court denies defendants' motion for summary judgment on the Second Claim for relief.
iii. Due Process Right to Medical Care While in Custody
Apart from the state-created danger and special relationship theories of liability, there is a triable question as to whether defendants deprived Lum of his right to medical care while in the custody of the county. In the pre-conviction context, that right derives from the due process clause, which "imposes, at a minimum, the same duty the Eighth Amendment poses: persons in custody have the established right to not have officials remain deliberately indifferent to their serious medical needs," including psychiatric needs. Gibson v. County of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002).
A defendant is deliberately indifferent in this context if he knows of and disregards an excessive risk to the detainee's health and safety. Farmer v. Brennan, 511 U.S. 825 (1970). The defendant must actually be aware of the risk; it is not enough if he should have known of the risk but did not. Id.
It is apparent to the court that Officer Mendoza should have known of the excessive risk to Lum's safety. Lum told Mendoza that he was bi-polar, under the care of a doctor, and on medications. Mendoza observed Lum trying to open imaginary doors in his cell. The court concludes that there is a triable issue on the question of whether Officer Mendoza actually knew of a risk to Lum's health and safety. A jury might not find it credible that Officer Mendoza did not know that "bi-polar" refers to a serious mental health condition, despite being having received training on dealing with individuals with mental health issues. See Sida Report, ECF No. 48 at 15. Moreover, again the conduct of the arresting officers in this regard cannot be resolved by the court.
Accordingly, the court finds that the defendants are not entitled to summary judgment on the second claim for relief. C. Third Claim: Monell liablity for "kick-out" policy
As their third claim for relief, plaintiffs allege that the City of Lathrop and County of San Joaquin ("the municipal defendants") have a policy of accepting arrestees on "kick-out" charges, holding them arbitrarily, and then releasing them in a manner that puts them a risk of harm. Plaintiffs allege that plaintiffs Fourteenth Amendment rights were violated as a result of this policy.
In their complaint, plaintiffs alleged "other arrestees charged as kickouts, and holding them for an arbitrary period of time only to release them without any guidance, protection, or assistance." However, plaintiffs have submitted evidence of only one other similar incident involving San Joaquin County and another city.
Evidence of only one prior incident does not raise a triable fact as to whether there was a policy of treating "kickout" arrestees in a unconstitutional manner. "Proof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the incident includes proof that it was caused by an existing, unconstitutional local government] policy, which policy can be attributed to a [local government] policymaker. Meehan v. County of Los Angeles, 856 F.2d 102, 107 (9th Cir. Cal. 1988) (quoting City of Oklahoma v. Tuttle, 471 U.S. 808 (1985)). Plaintiffs provide no further evidence of an unconstitutional policy with respect to kickout arrestees. Indeed, plaintiffs argue that Officer Mendoza violated county policy that requires inmates to be seen by Correctional Health Staff if booking officers learn that an arrestee is on medication but doesn't have the medication with him.
Accordingly, the court finds that the municipal defendants are entitled to summary judgment on Claim 3.
D. Claim Four: Inadequate Training
Plaintiffs' Fourth Claim is for inadequate and reckless training by the municipal defendants. In order to sustain such a claim, plaintiffs would have to demonstrate a triable fact that the "inadequacy of police training. . ." in this case "amounts to deliberate indifference to the rights of persons with whom the police come into contact." City of Canton v. Harris, 489 U.S. 378, 388 (1989). Plaintiffs have submitted no evidence of such indifference. Rather, both plaintiffs and defendants have submitted evidence of numerous policies adopted by the city and county with respect to training officers to deal with mental health situations.
Accordingly, defendants are entitled to summary judgment on Claim 4.
E. Claim Five: ADA
Plaintiffs allege that the municipal defendants discriminated against Lum on the basis of a disability, and that they failed to accommodate him, in violation of the Americans with Disabilities Act.
The Ninth Circuit has held squarely that the ADA applies to local law enforcement and correctional facilities. Lee v. City of Los Angeles, 250 F.3d 668 (9th Cir. 2001). As this court previously noted, "There are two theories generally recognized by courts in applying the ADA in the context of arrests. See Gohier v. Enright, 186 F.3d 1216, 1221 (10th Cir. 1999). First, where police wrongly arrested someone with a disability because they misperceived the effects of that disability as criminal activity. Id. at 1220. Second, where although police have properly investigated and arrested a person with a disability for a crime unrelated to that disability, they failed to reasonably accommodate the person's disability in the course of investigation or arrest, causing the person to suffer greater injury or indignity in that process than other arrestees. Id. at 1220-21 (citing Gorman, 152 F.3d at 912-13 (holding such claim viable); Rosen, 121 F.3d at 157-58 (suggesting in dicta such claim not viable); Patrice v. Murphy, 43 F.Supp.2d 5 1156 (W.D. Wash. 1999) (holding such claim not viable.))" Order, ECF No. 25. See also Barnes v. Gorman, 536 U.S. 181 (2002) (reversing only the award of punitive damages in an ADA case involving a disabled arrestee injured during transport to jail). Plaintiffs' complaint alleges both theories here. For the same reasons stated above, the court concludes that there is a triable issue as to whether the defendants wrongfully arrested Lum because they perceived the effects of a disability as intoxication. Defendants have submitted evidence indicating that it was reasonable to conclude that Lum was intoxicated, and plaintiffs have submitted counterevidence to the contrary. Accordingly, the court cannot grant summary judgment for defendants as to the first theory of ADA liability.
Plaintiff's opposition does not offer any argument or evidence in support of the second theory of liability. Defendants argue that since Lum did not make any request for an accommodation, no obligation to accommodate him was triggered. Defendants cite to employment cases to support this proposition. The court finds no binding case law that requires such a request before the ADA's protections are triggered in the context of correctional facilities. For example, in Pierce v. County of Orange, 526 F.3d 1190, 1217 (9th Cir. 2008), the Ninth Circuit held that the district court had erred in denying relief to disable prisoners seeking accommodations, without any mention of a specific pre-litigation request for an accommodation.
Moreover, the four elements of an ADA claim in the context of prison accommodations do not include a request for an accommodation. Those elements are: "(1) the plaintiff is an individual with a disability; (2) the plaintiff is otherwise qualified to participate in or receive the benefit of some public entity's services, programs, or activities; (3) the plaintiff was either excluded from participation in or denied the benefits of the public entity's services, programs, or activities, or was otherwise discriminated against by the public entity; and (4) such exclusion, denial of benefits, or discrimination was by reason of the plaintiff's disability." Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002).
As defendants' only argument against plaintiffs' second theory of ADA liability is that Lum never requested an accommodation, the court DENIES defendants' request for summary judgment on the ADA claim.
F. Claims Six and Seven: State Claims
Plaintiffs assert a wrongful death claim against all defendants and a false arrest claim against the arresting officers.
i. Immunity
The defendants assert that they are immune from plaintiffs' state law causes of action for wrongful death and false arrest. Defendants argue that two immunities apply in this instant case: Government Code Section 845.8(a), and Government Code 855.8(a).
The former of those sections provides: "Neither a public entity nor a public employee is liable for any injury resulting from determining whether to parole or release a prisoner or from determining the terms and conditions of his parole or release or from determining whether to revoke his parole or release." The term "prisoner" includes an individual arrested for intoxication and released without charge. Teter v. City of Newport Beach, 30 Cal. 4th 446 (2003). The immunity applies to injuries to the released prisoner. In Ladd v. County of San Mateo, 12 Cal. 4th 913 (1996), the California Supreme Court held that the immunity in Section 845.8(b), concerning prisoners attempting to escape, applies to injuries sustained by the escaping prisoner. There, the Court noted that the statute uses broad terms, and that "the reasons for providing immunity for injuries caused by fleeing prisoners apply equally, or with greater force, to self-inflicted injuries." Id. at 919. "The chilling effect upon law enforcement and custodial officers' performance of their duties that would result from the imposition of liability for a public employees' failure to maintain custody over a prisoner is the same whether that liability arises from an injury to a third party or an injury to the escaped or escaping prisoner." Id. The same reasoning applies with respect to Section 845(a), applicable here, and the immunity applies to injuries caused to Lum by those who made the decision to release him.
Plaintiffs assert their wrongful death claim against all defendants. The Section 845(a) immunity only applies to decisions to release a prisoner. Here, it may apply to any officer who made the decision to release Lum, and any municipal defendant that may otherwise have Monell liability for that decision. The Section 845(a) immunity cannot apply to the arresting officers or to Officer Mendoza, who were uninvolved in the decision to release Lum. Accordingly, only those defendants who were responsible for the decision to release Lum are immune from the wrongful death claim on the basis of Section 845.8(a), and are subject to summary judgment on the basis of that immunity.
Government Code 855.8(a) provides: "Neither a public entity nor a public employee acting within the scope of his employment is liable for injury resulting from diagnosing or failing to diagnose that a person is afflicted with mental illness or addiction or from failing to prescribe for mental illness or addiction." Defendants assert that this section shields all defendants from the wrongful death claim.
Plaintiffs' claim, however, is not premised on diagnosis or failure to diagnose. Obviously the officers in this case are not physicians and have no training sufficient to diagnose. The crux of this claim is not a failure to diagnose, but rather a failure to arrange for a properly credentialed person to diagnose. As noted in this court's prior order, defendants may still be liable for e.g., failing to obtain medical care for Lum if he was in obvious need of it. Plaintiffs' complaint alleges that defendants' breached a duty of care by "failing to give Decedent a medical or psychiatric evaluation and/or treatment and by deciding to release him alone six miles from home, without money, shoes, a cellular phone, without means of transportation and without means or wherewithal to get home, shelter, or assistance."
Curiously, a California court has held that immunity applies when an arresting officer fails to relay information about an arrestee's mental condition to jail personnel. See Johnson v. County of Los Angeles, 143 Cal. App. 3d 298 (Cal. App. 2d Dist. 1983) (sheriff's officers' decisions the process of determining whether to medicate a prisoner fall within the immunity established by Section 855.8.) This court is bound by the decisions of the California Supreme Court, Wainwright v. Goode, 464 U.S. 78, 84 (U.S. 1983). District courts are not bound by decisions of state intermediate courts, Dimidowich v. Bell & Howell, 803 F.2d 1473 (9th Cir. 1986), but they are not free to disregard them in the absence of other "persuasive data." West v. American Tel. & Tel. Co., 311 U.S. 223, 61 S. Ct. 179, 85 L. Ed. 139 (1940). It appears to this court that the plain language of the statute simply does not support the intermediate court opinion. Thus, with respect to the remaining portions of plaintiffs' wrongful death claim, 855.8(a) provides no immunity.
In their opposition to the motion for summary judgment, plaintiffs attribute Lum's death to Officer Mendoza's failure to provide medical treatment to Lum despite knowing that Lum was bi-polar and that he should have been on medications. Opp'n 26. Officer Mendoza's conduct appears to have violated numerous internal policies with respect to the treatment of arrestees with mental health issues, not to mention common decency. The question, however, is whether those failures resulted in Jeremy Lum's death. The plaintiffs have provided no direct evidence of the immediate circumstances of his death. Thus, the question is whether the totality of the circumstances that are known are sufficient for a reasonable jury to draw an inference of causation. It appears to this court that it is a close question, but one left to a trier of fact, at least in the first instance.
ii. False Arrest
Plaintiffs' claim that the arresting officers arrested Lum without probable cause, in violation of state tort law. For the reasons discussed above, the court finds that there remains a triable issue as to whether it was reasonable for the arresting officers to arrest Lum for public intoxication. Accordingly, defendants motion for summary judgment on this claim is DENIED.
IV. Conclusion
Defendants' Motion for Summary Judgment, ECF No. 71 is GRANTED in part and DENIED in part.
[1] On plaintiffs' first claim for relief, summary judgment is DENIED as to the arresting officers. The court will rule on whether summary judgment should be granted as to the municipal defendants after briefing from the parties, ordered by this court on March 2, 2012.
[2] On plaintiffs' second claim for relief, summary judgment is DENIED.
[3] On plaintiffs' third claim for relief, summary judgment is GRANTED to defendants.
[4] On plaintiffs' fourth claim for relief, summary judgment is GRANTED to defendants.
[5] On plaintiffs' fifth claim for relief, summary judgment is DENIED.
[6] On plaintiffs sixth claim for relief, the court GRANTS summary judgment to defendants who made the decision to release LUM, and DENIES summary judgment to the arresting officers and Officer Mendoza.
[7] On plaintiffs seventh claim for relief, the court DENIES summary judgment.
IT IS SO ORDERED.
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LAWRENCE K. KARLTON
SENIOR JUDGE
UNITED STATES DISTRICT COURT