Case 3:05-cv-00595-HDM-RAM Document 2-2819237 Filed 11/03/05 Page 1 of 12

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UNITED STATES

CV-N-05-0595-HDM-VPC

DISTRICT
13

14 CHARLA CONN, administrator of the ESTATE OF BRENDA JEAN CLUSTKA,
15 CHARLA CONN,

16

Plaintiffs,

17

vs.

18 CITY OF RENO, RPD OFFICER RYAN 19 ASHTON, RPD OFFICER DAVID
ROBERTSON,
20
21 __________D_e_fe_n_da_n_ts_. _____________!

COMPLAINT JURY DEMAND

22
JURISDICTION AND VENUE 23
1. This Court has jurisdiction ofthis action pursuant to 28 U.S.C. §§ 1331, 1343, 2201; and 24
42 US.C. §§ 1983 and 1988.
25
2. Venue in this action is appropriate in the Northern District of Nevada pursuant to 28
26
U.S.C. Section 139l(b). 27
3. This Court has jurisdiction to grant the declaratory relief requested pursuant to 28 U.S. C. 28
§ 2201 and Federal Rules of Civil Procedure, Rule 57.

1

Case 3:05-cv-00595-HDM-RAM Document 2-2819237 Filed 11/03/05 Page 2 of 12

1

2

PARTIES

3

4. Plaintiff CHARLA CONN is the duly appointed, qualified, and acting special

4 administrator for the Estate ofBRENDA JEAN CLUSTKA, deceased, and is the daughter of Brenda

5 Jean Clustka, who died in the manner alleged below on April 28, 2005. Plaintiff is over the age of

6 eighteen and is a citizen of Clark County, Nevada Plaintiff Conn brings this action on behalf of the

7 estate and for the benefit of the heirs of the state as well as in her own capacity as an heir to the

8 decedent.

9

5. Defendant Reno Police Department Officer RYAN ASHTON is an officer in the Reno

10 Police Department, employed by City ofReno.

11

6. Defendant Reno Police Department Officer DAVID ROBERTSON is an officer in the

12 Reno Police Department, employed by City of Reno.

13

7. Defendant CITY OF RENO is a municipality duly incorporated under the laws of the

14 State ofNevada.

15

8. Defendants Ashton and Robertson are sued in their individual and official capacities.

16

9. Defendants Ashton and Robertson, under color of state law, have caused the decedent

17 Brenda Jean Clustka to be deprived of her constitutional rights.

18

10. Plaintiff alleges that each of the defendants performed, participated in, aided and/or

19 abetted in such manner the acts averred herein, proximately caused the damages averred below, and

20 that each is liable to plaintiff for the damages and other relief sought herein.

21

FACTUAL ALLEGATIONS

22

11. The seventh of nine children, the decedent Brenda Jean Clustka was born to working class

23 parents in southern California on October 16, 1961. She maintained a close and loving family

24 relationship that began to disintegrate with the break up of her twelve-year relationship with the

25 father of her two children in or about 1988.

26

12. In 1988, C1ustka left her children's father, packed her belongings and moved with her two

27 children, Dustin and Charla Conn, to her mother's home in Reno, Nevada. From that time on, the

28 children's father, would come in and out of her life sporadically, staying with her for stretches of time

then disappearing. His inattention was devastating to her. Also, no longer able to rely on financial
2

Case 3:05-cv-00595-HDM-RAM Document 2-2819237 Filed 11/03/05 Page 3 of 12

1 support from her children's father, and with only a GED, Clustka accepted various low paying jobs in
2 retail, telemarketing and waitressing. For several years, juggling her dual role as a loving and

3 attentive mother as well as the sole bread earner for her family, she managed to hold a job and bring

4 home enough money to pay rent and essential expenses.

5

13. In or about year 2000, worn out from the daily struggle of making ends meet while

6 parenting two children alone, Clustka began to go down hill. She started drinking heavily and abusing

7 prescription medications. Extremely depressed and anxious over her situation, Clustka got into

8 arguments with her mother and siblings and began to make suicide threats. Thoughts of suicide began

9 to consume her and she repeatedly mentioned suicide as a viable option to her difficulties.

10

14. In or about 2003, Clustka began to accumulate an arrest record for misdemeanor crimes-

11 domestic violence, DUI, and petty larceny offenses. Over time, she spiraled downward, becoming

12 well known at Washoe County Detention Facility ("jail") as a repeat offender with minor traffic

13 offenses with a documented history of alcohol and other drug dependence, hypertension, anxiety

14 disorder and suicide threats. Her health deteriorated and she gained weight. Financially desperate, she

15 began living with her mother and her brother in a home owned by her mother.

16

15. On March 19, 2005, the Reno Police Department (RPD) arrested Clustka and transported

17 her to the Washoe County jail. Clustka was charged with misdemeanor domestic battery stemming

18 from minor disputes with family members. Police observed that Clustka had received several bruises

19 and injuries to her head, which she insisted her brother, who also resided at that address, had

20 inflicted.

21

16. On March 20, 2005, jail authorities placed Clustka on suicide watch in the Washoe

22 County jail's infirmary after she admitted to medical staff that she had threatened to commit suicide

23 the night of her arrest. Jail documents reflect she had threatened suicide. Soon after she was

24 transferred to general population where she remained until her release on April 21, 2005 on her own

25 recogmzance.

26

17. Clustka fared poorly after her release from jail. Between about April 21, 2005 and April

27 25, 2005, she was taken to Washoe Medical Center on a 72-hour mental health hold due to her being

28 suicidal.

3

Case 3:05-cv-00595-HDM-RAM Document 2-2819237 Filed 11/03/05 Page 4 of 12

I

18. Upon her release from the mental health facility, unable to function and spiraling further

2 downward in depression and despair, Clustka returned to the home of her mother and brother.

3

19. On that day, April 25, 2005, Clustka's mother called Washoe County court services and

4 complained that Clustka was continually intoxicated and "out of control." Her mother further

5 informed court services that she was in the process of obtaining a temporary protection order (TPO)

6 to protect her from her daughter's volatility.

7

20. Clustka's mother's decision to obtain a TPO presented a serious problem for Clustka

8 because she was living with her. With a TPO in place against her, she would have no place to live.

9 Clustka's despair deepened.

IO

21. On April 26, 2005, Clustka called the Reno Police Department for assistance in retrieving

I I her belongings from her mother's home. She was aware her mother had obtained a TPO against her

I2 but she had as yet not been formally served with the document. She wanted the police to assist her so

I3 there would be no problem in obtaining her belongings. She was concerned that if she attempted to

I4 retrieve her belongings without the assistance of the police, her actions might be construed as a

I5 violation of the TPO (even though she had not yet been served with the TPO) and she might be in

I6 even more legal difficulties. She desperately wanted to avoid going to jail.

17

22. On April 26, 2005, defendants Ryan Ashton and David Robertson responded to Clustka's

18 call for assistance regarding her belongings. The officers found Clustka intoxicated and in great

19 mental distress. They were aware she was seeking to avoid potential problems with a TPO by having

20 them present when she removed her belongings from her mother's home. She explained to them that

21 she was doing everything possible to avoid problems with the yet to be served TPO.

22

23. While Ashton and Robertson were fully aware Clustka greatly feared jail and wanted to

23 avoid it, they decided jail was precisely where they would take her. Because of her high level of

24 intoxication and disorientation, defendants determined she would be taken to jail for Civil Protective

25 Custody ("CPC"). They did this not because she had committed any crimes, which she had not, but

26 because of her intoxication and disorientation.

27

24. Defendants lied to the distraught Cluska, telling her they would assist her in picking up

28 her belongings when they actually had no intention of doing so. Instead, they intended to take her to

4

Case 3:05-cv-00595-HDM-RAM Document 2-2819237 Filed 11/03/05 Page 5 of 12

1 jail and mislead her into thinking they would be doing on thing (assisting her to obtain her

2 possessions) when they fully intended on doing another thing (taking her to jail).

3

25. Before taking the agitated Clustka into CPC, Ashton and Robertson conducted a wants

4 and warrants check, the results of which indicated to them that Clustka was known to abuse drugs

5 and alcohol, had a history of mental problems, and had violent tendencies.

6

26. The Reno Police Department has a policy that intoxicated persons detailed for CPC are to

7 be placed into the alcoholic Detoxification Center for treatment and not in the county jail. The Detox

8 Center is located at the Nevada State Hospital, 480 Galetti Way, Sparks, Nevada. While Clustka met

9 all the requirements for being transported to the Detox Center and should have been taken there by

10 defendants Ashton and Robertson, yet she was not. Instead, she was transported to the county jail.

11 Had defendants taken Clustka to the Detox Center, she would not have committed suicide at the

12 county jail less than two days later. Going to jail - and being lied to by defendants -- pushed the

13 distraught Cluskta, with her suicidal ideation to the breaking point.

14

27. Defendants transported Clustka to the Washoe County jail facility by placing her in the

15 back of a paddy wagon. They chose not to handcuff her because she had not been arrested for a

16 crime. Robertson drove the paddy wagon, and Ashton was in the passenger seat.

17

28. As the officers drove in the direction of the jail, Ashton watched Clustka through a video

18 surveillance camera trained on the back of the paddy wagon. He observed her undo her seatbelt, leave

19 her seat, walk around the wagon several times and repeatedly knock at the camera with her hand.

20 Robertson chose not to stop the paddy wagon to secure Clustka in her seat because they were fast

21 approaching the Washoe County jail.

22

29. When Clustka sighted the Washoe County jail out the back out the back window of the

23 paddy wagon, she became even more visibly agitated and distressed. She sat back down on her seat,

24 grabbed the seatbelt strap and wrapped it tight around her neck in an attempt to choke herself.

25

30. Ashton saw Clustka wrap the seatback strap around her neck and made Robertson stop the

26 paddy wagon. The officers went to the back of the wagon, removed the seatbelt strap from around

27 Clustka's neck, put her down on the floorboard of the wagon, placed her hands behind her back, and

28 handcuffed her with flexible handcuffs.

5

Case 3:05-cv-00595-HDM-RAM Document 2-2819237 Filed 11/03/05 Page 6 of 12

1

31. As the officers were removing the seatbelt strap from around Clustka' s neck, she cried out

2 to them, "You lied to me. Just kill me or I'll kill myself" Not only did the officer have knowledge

3 that she intended to kill herself, they witnessed her attempt.

4

32. Ashton and Robertson proceeded to transport Clustka the remainder of the way to the jail

5 m handcuffs, to avoid further suicide attempts. They advised Central Control that they had an

6 uncooperative and "disoriented" female but were inexplicably silent over her attempt to commit

7 suicide, choosing to withhold that vital piece of information on her mental health. Not only did

8 defendants know about her plans to commit suicide, they had full knowledge of her intoxication, her

9 disorientation, and her past history of alcohol and prescription drug abuse. That Clustka was a serious

10 suicide risk was a matter they kept to themselves despite multiple opportunities to easily pass on this

11 vital information in the form of warnings to jail personnel.

12

33. At all times Clustka had the constitutional right to be free from deliberate indifference to

13 the known risk of harm of suicide. The law at the time was clear that once an official knows of a risk,

14 the Fourteenth Amendment requires the official to take reasonable measures to abate the risk.

15 Defendants had a duty to inform jail personnel they had witnessed Clustka attempt to commit suicide

16 and heard her threaten to commit suicide. In intentionally declining to pass on what they knew to be a

17 serious risk of harm, defendants violated Clustka's constitutional rights.

18

34. Ashton did ask Robertson, who was the senior officer, if they shouldn't write a report,

19 given Clustka made a suicide attempt while under their custody. Robertson advised Ashton not to 20 do a report. and Ashton thought no more of it Thus, Ashton and Robertson made a deliberate 21 choice to not inform jail personnel of Clustka's suicide attempt, which they personally witnessed,
22 and they made a deliberate choice to not write up an incident report documenting the suicide attempt

23 or the suicide threats. Accordingly, both were recklessly indifferent to the serious risk of harm that

24 Clustka would again attempt to kill herself.

25

35. Ashton rationalized his failure to report the suicide attempt with the nonsensical assertion

26 that she couldn't have succeeded in killing herself in the wagon because she was being watched and

27 because she could not have maintained sufficient tension with the seatbelt to actually kill herself after

28 passing out. Thus, Ashton and Robertson deliberately ignored the extreme likelihood that Clustka

would again attempt to commit suicide and would be successful.
6

Case 3:05-cv-00595-HDM-RAM Document 2-2819237 Filed 11/03/05 Page 7 of 12

I

36. The night of April 26, 2005, Clustka was released from civil protective custody and the

2 TPO was served on her.

3

37. Almost immediately, Clustka was back in trouble. Early on April 27, 2005, Clustka

4 returned home in another attempt to retrieve her personal belongings. This time, she did not ask the

5 police for assistance. Presumably, she feared that, rather than assist her, they would lie to her and

6 deceive her and again take her back to jail.

7

38. At about noon on April 27, 2005, Clustka's brother called the Reno police based on

8 Clustka' s violating the TPO by returning home. Reno police arrested Clustka for misdemeanor

9 violation of the TPO and took her back to jail. When she arrived at the jail facility, additional charges

10 were added.

II

39. Upon her booking and initial medical screenmg, Clustka was sent to HU3, a medical

12 housing unit, because of her known history of mental health problems (including the jail suicide

13 watch of a month before) and her anxiety disorder.

14

40. Prison Health Services records from the April 27, 2005, booking note Clustka's history of

15 hypertension and anxiety. Records from her medical screening document that she appeared to be

16 under the influence of, or withdrawing from drugs or alcohol Clustka was immediately placed on a

17 narcotic detox protocol and was scheduled for a psychiatric interview to take place the next day.

18 Since Ashton and Robertson had failed to document or report her failed suicide attempt one day

19 earlier and her threats to kill herself, she was not placed on suicide watch and was not deprived of

20 items traditionally used by prisoners to kill themselves - namely a bedsheet.

21

41. On April 28, 2005, at about 7:30 to 8:00 a.m., Clustka was taken from the medical unit to

22 Reno Municipal video court. The sheriff's deputy who accompanied her noticed that, as he was

23 placing the waist restraints on her, she acted confused and disoriented. He gave little thought to her

24 agitation because he was not warned that she was suicidaL Clustka pled not guilty at her video court

25 arraignment and was held over for trial. She told the deputy who accompanied her know that she was

26 upset about her video arraignment and had wanted to tell the judge her side of the story and was 27 prevented from doing so. She asked to make a phone call but was not permitted to make a call then 28 and there, which made her further upset. The deputy returned Clustka to her cell at about 8:35 a.m.

the morning of April 28.
7

Case 3:05-cv-00595-HDM-RAM Document 2-2819237 Filed 11/03/05 Page 8 of 12

42. At about 9:15 a.m. that same morning, the sheriff's deputy assigned to the unit began

2 calling out a group of inmates, including Clustka, to begin their tier time. She called out to Clustka' s

3 cell and received no response. She called several times. After Clustka repeatedly failed to respond,

4 the deputy walked over to her with another deputy to check on her. On looking into the cell, he saw

5 she had hung herself with a sheet An emergency Code 50 was issued.

6

43. Clustka killed herself before her psychiatric interview ever took place. No preventive

7 measures had been taken because Ashton and Robertson failed to inform jail officials of Clustka's

8 suicide attempt and threats less than two days before.

9

44. Clustka succeeded in strangling herself by tying the knotted bed sheet around her neck

10 and to the top bunk as she lay in the bottom bunk Several deputies and medical personnel responding

I I to the Code 50 tried but could not save her life. It took a good 20 to 30 seconds alone to cut the sheet

I 2 from around her neck because the knife, which was kept for such emergencies, was too dulL By

13 about 9: 19 a.m., the deputies were able to release Clustka from her bed sheet noose and lay her on her

14 back onto the floor. They tried administering CPR and other life-saving measures with no success. It

IS was too late. Unresponsive, Clustka was pronounced dead at 9:55a.m.

I 6

45. Had Ashton and Robertson not failed to report Clustka' s suicide attempt in their paddy

17 wagon less than two days before, she would have been placed on a suicide watch by the jaiL Jail

I8 medical staff and other personnel would have more carefully scrutinized her mental health history

I9 would have been alerted to her history of suicide attempts and the need to protect her from killing

20 herself She would have been carefully monitored and would not have been provided with a bed

2 I sheet It is common sense that if a person is on a suicide watch, that person would not be given

22 something that could easily be used to harm himself with. If defendants had passed on the serious risk

23 of harm, it is likely jail officials would have discovered that only days before, Clustka was in a 72-

24 hour suicide hold at the local hospital and would have taken preventative measures to assure her

25 safety.

26

46. The problem of jail suicide is so prevalent that a United States Department of Justice

27 newsletter has been devoted to just that issue, The JailSuicide/Mental Health Update. In the Fall 2002

28 issue of this newsletter, an article entitled "Characteristics of Suicide attempts in a Large Urban Jail

8

Case 3:05-cv-00595-HDM-RAM Document 2-2819237 Filed 11/03/05 Page 9 of 12

1 System with an Established Suicide Prevention Program," states, "Suicide is the leading cause of

2 death in U.S. Jails." The article further states:

3

Factors that makes jails a particularly high-risk environment include the large portion

of inmates who have mental illness, the high rate of enforced withdrawal from alcohol

4

and drugs, and the traumatic effect that criminal conviction and incarceration have on

5

an inmate's personal life.

6

47. The Washoe County Detention Facility has had several jail suicides. Less than one month

7 before Clustka succeeded in killing herself, on March 29, 2005, inmate Patrick Boyle was found

8 hanging in his cell.

9

48. Despite the known prevalence of jail suicides, City of Reno Police Department failed to

10 train its officers on their responsibilities to report information they have regarding suicide attempts by

11 detainees. In deliberate and wanton indifference to the predictable harm, Reno Police Department

12 failed to provide Ashton and Robertson any training whatsoever on their responsibility and duty to

13 report any and all suicide attempts and threats by detainees to appropriate authorities.

14

49. As a direct and proximate result of the defendants' deliberate indifference, the surviving

15 children of Clustka, plaintiff Charla Conn and brother Dustin Conn, were deprived of their mother's

16 care, comfort, love, protection, advice, society, and physical assistance in addition to expectations of

17 support, maintenance and other pecuniary benefits. FIRST CAUSE OF ACTION
18

19

(Fourteenth Amendment, 42 U.S.C. § 1983)

20

50. Plaintiff realleges and incorporates each and every allegation contained m the preceding

21 paragraphs.

22

51. Clustka had a serious medical need, namely a particular vulnerability to suicide. There was a

23 strong likelihood, given Clustka's failed suicide attempt in the paddy wagon in the afternoon of April 26,
24
2005, and her known history of drug abuse and mental disorders, that self-inflicted harm would soon 25

26 occur.

27

52. Defendants Ashton and Robertson knew or should have known of Clustka's particular

28 vulnerability to suicide because they personally witnessed Clustka attempting to kill herself The officers

9

Case 3:05-cv-00595-HDM-RAM Document 2-2819237 Filed 11/03/05 Page 10 of 12

1 were required to take adequate measures in response to Clustka's known suicide risk, which at a
2 minimum required them to inform Washoe County Detention Facility staff of her failed suicide attempt.
3 53. Defendants Ashton and Robertson acted with reckless indifference to Clustka's particular
4 vulnerability by making deliberate and intentional decision to not notify Washoe County Detention
5 6 Facility staff of Clustka's suicide attempt and to not write an incident report documenting the attempt It
7 is classic deliberate indifference where a police officer witnesses a detainee attempting to kill herself and

8 determines to warn no one and do nothing about it. Acts of omission, namely Ashton and Roberton' s

9 failure to report Clustka' s suicide attempt, constitutes the predicate for a finding ofliability on their part.
10 54. As a direct and proximate result of the aforedescribed unlawful and deliberately indifferent
11 conduct by Ashton and Robertson committed under color of law and under each individual's authority as
12 a Reno police officer/employee, decedent Clustka was deprived of her right to be free from deliberate
13
14 indifference to risk of suicide in violation of the Fourteenth Amendment to the United States
15 Constitution.

16

55. As a direct and proximate result of defendants' conduct, decedent Clustka suffered extreme

17 physical pain and suffering before death, loss of ability to earn income, loss of life expectancy, loss of
18 consortium, loss of pleasure in life, medical and burial expenses and death.
19 56. As a consequence thereof, Clustka suffered death by suicide in the morning of April 28,
20 2005, leaving behind two children, Dustin Conn and Charla Conn, Special Administrator for the
21 Estate of Brenda Jean Clustka and a plaintiff in this action. As a direct and proximate result of any
22 and/or all of the acts of defendant, the surviving children of Clustka were deprived of a liberty
23 interest inherent in the relationship with their mother, including support, maintenance and other
24 pecuniary benefits in addition to the decedent's care, comfort, love, protection, advice, society, and
25 physical assistance.
26
57. At the time of the incident alleged herein, Clustka had a clearly established right under the 27
Fourteenth Amendment to be free from deliberate indifference to risk of suicide. 28

10

Case 3:05-cv-00595-HDM-RAM Document 2-2819237 Filed 11/03/05 Page 11 of 12

1

58. The acts of defendants Ashton and Robertson were intentional, wanton, malicious and

2 oppressive and made with reckless indifference to plaintiffs' rights thus entitling plaintiffs to an award of
3 punitive damages against the individual officers.
4 SECOND CAUSE OF ACTION
5
(Practice, Policy, Failure to Train -City of Sparks Only- 42 U.S.C. § 1983)
6 59. Plaintiff realleges and incorporates each and every allegation contained in the preceding
7 paragraphs.
8
60. At all times relevant to this complaint, defendants Ashton and Robertson were police 9

10 officers/employees of City of Reno Police Department, acting under the direction and control of the City

11 of Reno by and through its policymakers.

12

61. Plaintiff alleges all conduct complained of herein by these plaintiffs was the result of an

13 abject failure to train defendants Ashton and Robertson regarding the requirement that they report
14 suicide attempts by detainees in their custody.
15 62. City of Reno's failure to properly train, supervise, control and/or discipline defendants
16
17 Ashton and Robertson with respect to their obligations to report suicide attempts by detainees is the

18 cause in fact and the proximate cause ofthe injuries claimed by plaintiffs.

19

63. Given the known high prevalence of jail suicides, this failure to provide proper training

20 amounts to deliberate indifference. City of Reno, through its policymakers, had knowledge of, or had it
21 diligently exercised its duties to instruct, supervise, control, and discipline on a continuing basis, should
22
have had knowledge that the wrongs that were done to plaintiff herein were likely to be committed. 23
64. Plaintiffs allege that the deliberate indifference in City of Reno's failure to train involves 24
25 more than a mere suspicion that harm may occur.

26

65. Defendant City ofReno had knowledge of or, had it diligently exercised its duties to

27 instruct, supervise, control, and discipline on a continuing basis, should have had knowledge that the

28 wrongs that were done, as heretofore alleged, or other unlawful or unconstitutional acts were going to

be committed.
ll

Case 3:05-cv-00595-HDM-RAM Document 2-2819237 Filed 11/03/05 Page 12 of 12

l

66. Defendant City of Reno had power to prevent or aid in preventing the commission of said

2 wrongs, could have done so, and intentionally knowingly, or with deliberate indifference to the rights

3 of detainees, and specifically decedent Clustka, herein failed or refused to do so.

4

67. As a direct and proximate result of the aforedescribed unlawful and malicious conduct by the

5 individual defendants - approved, ratified, and condoned -- by City of Reno through its policymakers,

6 Clustka was deprived of her life and her right to be secure in her person against violations of her due
7 process rights under the Fourteenth Amendment to the Constitution of the United States and 42 US.C. §
8
1983. 9

10

PRAYER FOR RELIEF

ll

WHEREFORE, plaintiffs pray for judgment against the defendants as follows:

12

L For a declaratory and injunctive relief that the policies, practices, and acts

13

complained of herein are illegal and unconstitutional;

14

2. For actual and compensatory damages from defendants, jointly and severally as

15

appropriate, in an amount to be detennined at trial;

16

3. For exemplary and punitive damages from the individual defendants in an amount to

17

be determined at trial;

18

4. For attorney fees and costs incurred herein;

19

5. For leave to amend this complaint should it become necessary;

20

6. For nominal damages;

21

7. For such other and further relief as this Court may deem appropriate.

22
23

d.Jn.' j__ Dated this

day of

=- ' 2005,

24

25

26

Attorneys for Plaintiff Charla Conn

27

28

12

 </s> - Case 3:05-cv-00595-HDM-RAM Document 16

Filed 12/12/05 Page 1 of 13

1 TERRI KEYSER-COOPER Law Office of Terri Keyser-Cooper
2 Nevada Bar No. 3984 3 100 N. Arlington Ave., #lOF
IReno, NV 89501
4 (775) 337-0323

, .. : ' i: I C

5 DIANE K. VAILLANCOURT
6 Law Office of Diane K. Vaillancourt
Nevada Bar No. 9277 7 849 Almar Ave., Suite C403
8 Santa Cruz, CA 95060 (831) 458 3440
9
10 Attomeys for Plaintiff Charla Conn

11
UNITED STATES DISTRICT COURT 12
DISTRICT OF NEVADA 13

14
15 CHARLA CONN, administrator of the ESTATE OF BRENDA JEAN CLUSTKA,
16 CHARLA CONN and DUSTIN CONN

Case No. CV-N-05-595-HDM-VPC FIRST AMENDED COMPLA!NT

17

Plaintiffs,

18

VS.

19 CITY OF RENO, RPD OFFICER RYAN ASHTON, RPD OFFICER DAVID
20 ROBERTSON,

___________ 21

Defendants.

22 -·-----

___}

23 JURISDICTION AND VENUE

24 1. This Court has jurisdiction of this action pursuant to 28 U.S.C. i\§ 1331, 1343, 2201; and

25 42 C.S.C. §§ 1983 and 1988.

26 2. Venue in this action is appropriate in the Northern District ot' Nevada pursuant to 28

27 U.S.C. Section 1391(b).

28

J. This Court has jurisdiction to grant the declaratory relief requested pur,~ ant to 28 U.S.C.

Case 3:05-cv-00595-HDM-RAM Document 16 Filed 12/12/05 Page 2 of 13

§ 2201 and Federal Rules of Civil Procedure, Rule 57.

2

3

PARTIES

4

4. Plaintiff CHARLA CONN is the duly appointed, qualified, and acting special

5 administrator for the Estate of BRENDA JEAN CLUSTKA, deceased, and is the daughter of Brenda

6 Jean Clustka, who died in the manner alleged below on April 28, 2005. Plaintiff is over the age of

7 eighteen and is a citizen of Clark County, Nevada. Plaintiff Conn brings this action on behalf of the

8 estate and for the benefit of the heirs of the state as well as in her own capacity '"' an heir to the

9 decedent.

10

5. Plaintiff DUSTIN CONN is the son of Brenda Jean Clustka and the brother of Charla

11 Conn. Plaintiff Dustin Conn is over the age of eighteen and a citizen of Washoe County, Nevada. He

12 ':.brings this action in his own capacity as an heir to the decedent.

13

6. Defendant Reno Police Department Officer RYAN ASHTON is an officer in the Reno

14 Police Department, employed by City of Reno.

15

7. Defendant Reno Police Department Officer DAVID ROBERTSON is illl officer in the

16 Reno Police Department, employed by City of Reno.

17

8. Defendant CITY OF RENO is a municipality duly incorporated under the laws of the

18 State of Nevada.

19

9. Defendants Ashton and Robertson are sued in their individual and official capacities.

20

10. Defendants Ashton and Robertson, under color of state law, have caused the decedent

21 Brenda Jean Clustka to be deprived of her constitutional rights.

22

I I. Plaintiff alleges that each of the defendants performed, participated ·n, aided and/or

23 abetted in such manner the acts averred herein, proximately caused the damages averred below, and

24 that each is Iiable to plaintiff for the damages and other relief sought herein.

25

FACTUAL ALLEGATIONS

26

12. The seventh of nine children, the decedent Brenda Jean Clustka was born to working class

27 parents in 'outhern California on October 16, 1961. She maintained a dose ard loving family

28 relatiom.hip that began to disintegrate with the break up of her twelve-year relationship with the

father of her two children in or about 1988.
2

Case 3:05-cv-00595-HDM-RAM Document 16 Filed 12/12/05 Page 3 of 13

1

13. In 1988, Clustka left her children's father, packed her belongings and moYed with her two

2 children, Dustin and Charla Conn, to her mother's home in Reno, Nevada. From t'1at time on, the

3 ;children's father, would come in and out of her life sporadically, slaying with her for stretches of time

4 then disappe21ring. His inattention was devastating to her. Also, no longer able to rely on financial

5 suppor1 from her children's father, and with only a OED, Clustka accepted various low paying jobs in

6 retail, telemarketing and waitressing. For several years, juggling her dual role as a loving and

7 attentive mother as well as the sole bread earner for her family, she managed to hold a job and bring

8 home enough money to pay rent and essential expenses.

9

14. In or about year 2000, worn out from the daily struggle of making ends meet while

10 parenting two children alone, Clustka began to go down hill. She started drinkmg heavily and abusing

11 prescription medications. Extremely depressed and anxious over her situation, Clustka got into

12 arguments with her mother and siblings and began to make suicide threats. Tlnughts of suicide began

13 to consume her and she repeatedly mentioned suicide as a viable option to her difficulties.

14

15. In or about 2003, Clustka began to accumulate an arrest record for misdemeanor crimes--

15 domestic violence, DUI, and petty larceny offenses. Over time, she spiraled downward, becoming

16 well known at Washoe County Detention Facility ("jail") as a repeat offender with minor traffic

l7 offenses with a documented history of alcohol and other drug dependence, hypertension, anxiety

18 disorder and ;uicide threats. Her health deteriorated and she gained weight. Financially desperate, she

19 began living with her mother and her brother in a home owned by her mother.

20

16. On March 19, 2005, the Reno Police Department (RPD) arrested Clustka and transported

21 her to the Washoe County jail. Clustka was charged with misdemeanor domestic h<1ttery stemming

22 from minor disputes with family members. Police observed that Clustka had -eceivcd several bruises

23 and injuries to her head, which she insisted her brother, who also residtd at that address, had

24 , inflicted.

25

17. On March 20, 2005, jail authorities placed Clustka on suicide watch in the Washoe

26 County jail" s infirmary after she admitted to medical staff that she had threatened to commit suicide

27 the night of her arrest. Jail documents reflect she had threatened suicid~. Soon after she was

28 transferred to general population where she remained until her release on April 21, 21!05 on her own

recognizance.
3

- Case 3:05-cv-00595-HDM-RAM Document 16 Filed 12/12/05 Page 4 of 13

18. Clustka fared poorly after her release from jail. Between about April 21, 2005 and April

2 25, 2005, she was taken to Washoe Medical Center on a 72-hour mental health hold due to her being

3 suicidal.

4

19. Upon her release from the mental health facility, unable to function and spiraling further

5 downward in depression and despair, Clustka returned to the home of her mother and brother.

6

20. On that day, April 25, 2005, Clustka's mother called Washoe County court services and

7 complained that Clustka was continually intoxicated and "out of control." Her mother further

8 informed court services that she was in the process of obtaining a temporary protection order (TPO)

9 to protect her from her daughter's volatility.

10

21. Clustka's mother's decision to obtain a TPO presented a seriocs problem for Clustka

11 because she was living with her. With a TPO in place against her, she would have no place to live.

12 C:lustka's despair deepened.

13

22. On April 26, 2005, Clustka called the Reno Police Department for assistance in retrieving

14 her belongings from her mother's home. She was aware her mother had obtained a TPO against her

15 but she had a' yet not been formally served with the document. She wanted the polio: to assist her so

16 there would he no problem in obtaining her belongings. She was concerned that if she attempted to

17 retrieve her belongings without the assistance of the police, her actions might be construed as a

18 violation of the TPO (even though she had not yet been served with the TPO) and ~he might be in

19 even more legal difficulties. She desperately wanted to avoid going to jail.

20

23. On April 26, 2005, defendants Ryan Ashton and David Robertson responded to Clustka's

21 call for assistance regarding her belongings. The officers found Clustka intoxicated and in great

22 mental distress. They were aware she was seeking to avoid potential problem;; with c. TPO by having

23 them present when she removed her belongings from her mother's home. Shl explained to them that

24 she was doing everything possible to avoid problems with the yet to be served TPO.

25

24. While Ashton and Robertson were fully aware Clustka greatly fe1red jail and wanted to

26 avoid it, the) decided jail was precisely where they would take her. Becauo;e of her high level of

27 intoxication <nd disorientation, defendants determined she would be taken to jail for Civil Protective

28 Custody ("CPC"). They did this not because she had committed any crimes. which she had not, but

because of her intoxication and disorientation.
4

- Case 3:05-cv-00595-HDM-RAM Document 16 Filed 12/12/05 Page 5 of 13

1

25. Defendants lied to the distraught Cluska, telling her they would assist her in picking up

2 her belongings when they actually had no intention of doing so. Instead, they intend,:d to take her to

3 jail and mislead her into thinking they would be doing on thing (assisting her to obtain her

4 possessions) when they fully intended on doing another thing (taking her to jail).

5

26. Before taking the agitated Clustka into CPC, Ashton and Robertson conducted a wants

6 and warrants check, the results of which indicated to them that Clustka was known to abuse drugs

7 and alcohol, had a history of mental problems, and had violent tendencies.

8

27. The Reno Police Department has a policy that intoxicated persons detailed for CPC are to

9 be placed into the alcoholic Detoxification Center for treatment and not in the count} jail. The Detox

10 Center is loc8ted at the Nevada State Hospital, 480 Galetti Way, Sparks, Nevada. While Clustka mel

11 all the requirements for being transported to the Detox Center and should have been taken there by

12 defendants A'hton and Robertson, yet she was not. Instead, she was transported to the county jail.

13 Had defendants taken Clustka to the Detox Center, she would not have committed suicide at the

14 county jail le-.s than two days later. Going to jail - and being lied to by defcndam,; -- pushed the

15 distraught Cluskta, with her suicidal ideation to the breaking point.

16

28. Ddendants transported Clustka to the Washoe County jail facility by placing her in the

17 back of a paddy wagon. They chose not to handcuff her because she had not been arrested for a

18 crime. Roberhon drove the paddy wagon, and Ashton was in the passenger seat.

19

29. As the officers drove in the direction of the jail, Ashton watched Clustka through a video

20 surveillance c1mera trained on the back of the paddy wagon. He observed her undo her seatbelt, leave

21 her seat. walk around the wagon several times and repeatedly knock at the camera with her hand.

22 Robertson chose not to stop the paddy wagon to secure Clustka in her seat because they were fast

23 approaching the Washoe County jail.

24

30. When Clustka sighted the Washoe County jail out the back out the back window of the

25 paddy wagon, she became even more visibly agitated and distressed. She sat hack down on her seat,

26 grabbed the seatbelt strap and wrapped it tight around her neck in an attempt to choke herself.

27

31. Ashton saw Clustka wrap the scatback strap around her neck and m1de Robertson stop the

28 paddy wagon. The officers went to the back of the wagon, removed the seatbelt strao from around

5

- Case 3:05-cv-00595-HDM-RAM Document 16 Filed 12/12/05 Page 6 of 13

1 Clustka·s neck, put her down on the floorboard of the wagon, placed her hands behind her back, and

2 handcuffed her with flexible handcuffs.

3

32. A~. the officers were removing the seatbelt strap from around Clustka's neck, she cried out

4 to them. "You lied to me. Just kill me or I'll kill myself.'' Not only did the officer lnvc knowledge

5 that she intended to kill herself, they witnessed her attempt.

6

33 . Ashton and Robertson proceeded to transport Clustka the remaimkr of the way to the jail

7 m handcuffs. to avoid further suicide attempts. They advised Central Control th<tt they had an

8 uncooperative and "disoriented" female but were inexplicably silent over her attempt to commit

9 suicide, choosing to withhold that vital piece of information on her mental health. Not only did

10 defendants krow about her plans to commit suicide, they had full knowledge of her intoxication, her

11 disorientation, and her past history of alcohol and prescription drug abuse. That Clustka was a serious

12 suicide risk \\as a matter they kept to themselves despite multiple opportunities to easily pass on this

13 vital information in the form of warnings to jail personnel.

14

34. At all times Clustka had the constitutional right to be free from deliberate indifference to

15 the known risk of harm of suicide. The law at the time was clear that once an official knows of a risk,

16 the Fourteenth Amendment requires the official to take reasonable measures to 1batc the risk.

17 Defendants had a duty to inform jail personnel they had witnessed Clustka attempt to commit suicide

18 and heard her threaten to commit suicide. In intentionally declining to pass on what they knew to be a

19 serious risk of harm, defendants violated Clustka's constitutional rights.

20

35. A'hton did ask Robertson, who was the senior officer, if they shouldn't write a report,

21 given Clustka made a suicide attempt while under their custody. Robertson advised_Ashton not to

22 do a report, and Ashton thought no more of it. Thus, Ashton and Robertson maJe a deliberate

23 choice to not infornn jail personnel of Clustka's suicide attempt, which they perso1nlly witnessed,

24 and they made a deliberate choice to not write up an incident report documenting the ·;uicidc attempt

25 or the suicide threats. Accordingly, both were recklessly indifferent to the serious ri>k of harm that

26 Clustk:t would again attempt to kill herself.

27

36. A> hton rationalized his failure to report the suicide attempt with the nonsensical assertion

28 that she couldn't have succeeded in killing herself in the wagon because she was being watched and

because she could not have maintained sufficient tension with the seatbelt to actually kill herself
6

Case 3:05-cv-00595-HDM-RAM Document 16 Filed 12/12/05 Page 7 of 13

after passing out. Thus, Ashton and Robertson deliberately ignored the extreme likelihood that

2 Clustka would again attempt to commit suicide and would be successful.

3

37. The night of April 26, 2005, Clustka was released from civil protective custody and the

4 TPO was served on her.

5

38. A:most immediately, Clustka was back in trouble. Early on April 27, 2005, Clustka

6 returned home in another attempt to retrieve her personal belongings. This time, she did not ask the

7 police for assistance. Presumably, she feared that, rather than assist her, they would lie to her and

8 deceive her and again take her back to jail.

9

39. 1\t about noon on April 27, 2005, Clustka's brother called the Reno police based on

10 Clustka's violating the TPO by returning home. Reno police arrested Clustka f<1r misdemeanor

11 violation of the TPO and took her back to jail. When she arrived at the jail facility, additional charges

12 were added.

13

40. Upon her booking and initial medical screemng, Clustka was s,;nt to HU3, a medical

14 housing uniL because of her known history of mental health problems (including the jail suicide

15 watch of a month before) and her anxiety disorder.

16

41. Prison Health Services records from the April 27, 2005, booking note Clmtka's history of

L7 hypertension and anxiety. Records from her medical screening document that she appeared to be

18 under the influence of, or withdrawing from drugs or alcohol. Clustka was immediately placed on a

19 narcotic detox protocol and was scheduled for a psychiatric interview to t<ke plao~ the next day.

20 Since Ashton and Robertson had failed to document or report her failed suicide attempt one day

21 earlier and her threats to kill herself, she was not placed on suicide watch and was not deprived of

22 items traditionally used by prisoners to kill themselves- namely a bedsheet.

23

42. On April 28, 2005, at about 7:30 to 8:00 a.m., Clustka was taken from the medical unit to

24 Reno Municipal video court. The sheriffs deputy who accompanied her noticed that. as he was

25 placing the waist restraints on her, she acted confused and disoriented. He gave little thought to her

26 agitation because he was not warned that she was suicidal. Clustka pled not guilty at her video court

27 arraignment and was held over for trial. She told the deputy who accompanied her know that she was

28 upset about her video arraignment and had wanted to tell the judge her side of the story and was

prevented from doing so. She asked to make a phone call but was not permitted to make a call then
7

Case 3:05-cv-00595-HDM-RAM Document 16 Filed 12/12/05 Page 8 of 13

1 and there, which made her further upset. The deputy returned Clustka to her cell at about 8:35 a.m.

2 the morning of April 28.

3

43. At about 9:15a.m. that same morning, the sheriffs deputy assi,;ned to the unit began

4 calling out a group of inmates, including Clustka, to begin their tier time. She called out to Clustka's

5 cell and received no response. She called several times. After Clustka repeaied1y f<ciled to respond,

6 the deputy walked over to her with another deputy to check on her. On looking into the cell, he saw

7 she had hung herself with a sheet. An emergency Code 50 was issued.

8

44. Clustka killed herself before her psychiatric interview ever took place. No preventive

9 measures had been taken because Ashton and Robertson failed to inform jail officials of Clustka· s

10 I suicide attempt and threats less than two days before.

11

45. Clustka succeeded in strangling herself by tying the knotted bed sheet around her neck

12 and to the top bunk as she lay in the bottom bunk. Several deputies and medical personnel responding

13 to the Code 50 tried but could not save her life. It took a good 20 to 30 seconds alone to cut the sheet

14 from around her neck because the knife, which was kept for such emergercies, was too dull. By

15 about 9:19a.m., the deputies were able to release Clustka from her bed sheet noose and lay her on her

16 back onto the floor. They tried administering CPR and other life-saving meas1res with no success. It

17 was too late. Unresponsive, Clustka was pronounced dead at 9:55 a.m.

18

46. llad Ashton and Robertson not failed to report Clustka's suicide attempt in their paddy

19 wagon less than two days before, she would have been placed on a suicide watch by the jail. Jail

20 medical staff and other personnel would have more carefully scrutinized her mental health history

21 would have been alerted to her history of suicide attempts and the need to protect her from killing

22 herself. She would have been carefully monitored and would not have been provided with a bed

23 sheet. It is common sense that if a person is on a suicide watch, that person would not he given

2.4 something that could easily be used to harm himself with. lf defendants had passed or the serious risk

25 of harm, it is likely jail officials would have discovered that only days before, Clustka was in a 72-

26 hour suicide hold at the local hospital and would have taken preventative measure!; to assure her

27 safety.

28

47" The problem of jail suicide is so prevalent that a United States Departnent of Justice

newsletter hai been devoted to just that issue, The .Tai!Suicide/Mental Health Updai~. In the Fall
K

Case 3:05-cv-00595-HDM-RAM Document 16 Filed 12/12/05 Page 9 of 13

1 '' 2002 issue of this newsletter, an article entitled "Characteristics of Suicide attempts i~ a Large Urban

2 :Jail System with an Established Suicide Prevention Program," states, "Suicide is the leading cause of

3 , death in U.S. Jails." The article further states:

4

Factors that makes jails a particularly high-risk environment include the large portion

of inmates who have mental illness, the high rate of enforced withdrawal from alcohol

5

and drugs, and the traumatic effect that criminal conviction and incarceration have on

an inmate's personal life. 6

48. The Washoe County Detention Facility has had several jail suicides. Less than one month 7

before Clustka succeeded in killing herself, on March 29, 2005, inmate Patrick Bc•yle was found 8

hanging in his cell. 9

49. Despite the known prevalence of jail suicides, City of Reno Police Department failed to 10

train its officers on their responsibilities to report information they have regarding suicide attempts by 11

detainees. In deliberate and wanton indifference to the predictable harm, R•:no Police Department
12

failed to provide Ashton and Robertson any training whatsoever on their responsibility and duty to 13

report any and all suicide attempts and threats by detainees to appropriate auth.1rities. 14

50. As a direct and proximate result of the defendants' deliberate ind:fferenn, the surviving 15

1 children of Clustka, plaintiff Charla Conn and brother Dustin Conn, were deprived of their mother's 16 1
Icare, comfort, love, protection, advice, society, and physical assistance in addition to ~xpectations of
17 i
support. maintenance and other pecuniary benefits. 18

FIRST CAUSE OF ACTION 19

20

(Fourteenth Amendment, 42 U.S.C. § 1983)

21

51. Plaintiffs reallege and incorporate each and every allegation contained rr the preceding

22 paragraphs.

23

52. Clustka had a serious medical need, namely a particular vulnerability to suicide. There was a

24 strong likelihood, given Clustka's failed suicide attempt in the paddy wagon in the afternoon of April 26,
25 2005, and her known history of drug abuse and mental disorders, that self-inflicted harm would soon
26
occur. 27

28

53. Defendants Ashton and Robertson knew or should have known of Clustka's particular

9

Case 3:05-cv-00595-HDM-RAM Document 16 Filed 12/12/05 Page 10 of 13

1 vulnerability to suicide because they personally witnessed Clustka attempting to kill herself. The officers
2 were required to take adequate measures in response to Clustka's known suicide risk, which at a
3 minimum required them to inform Washoe County Detention Facility staff of he- failed suicide attempt. 4
54. Defendants Ashton and Robertson acted with reckless indifferenct· to Clu:;tka's particular
5
vulnerability by making deliberate and intentional decision to not notify Woshoe County Detention 6 7 Facility staff of Clustka's suicide attempt and to not write an incident report documenti1g the attempt. It
8 is classic deliberate indifference where a police officer witnesses a detainee attempting tc· kill herself and

9 detem1ines to warn no one and do nothing about it. Acts of omission, namely Ashton and Roberton's

10 fi1ilurc to repc•rt Clustka's suicide attempt, constitutes the predicate for a finding nf liability on their part.

II

55. As a direct and proximate result of the aforedescribed unlawful am. deliberately indifferent

12 conduct by Ashton and Robertson committed under color of law and under each individual's authority as
13

a Reno police officer/employee, decedent Clustka was deprived of her right to be free from deliberate 14

15 indifference :o risk of suicide in violation of the Fourteenth Amendmen to the United States

16 Constitution.

17

56. As a direct and proximate result of defendants' conduct decedent Clustka sJffered extreme

18 physical pain and suffering before death, loss of ability to earn income, loss of life exrectancy, loss of
19 consortium, loss of pleasure in life, medical and burial expenses and death.
20
57. As a consequence thereof, Clustka suffered death by suicide in the morning of April 28, 21
2005, leaving behind two children, plaintiffs Dustin Conn and Charla Conn. As a direct and
22
proximate result of any and/or all of the acts of defendant, the surviving dildren of Clustka were
23
deprived of 1 liberty interest inherent in the relationship with their mother, including support, 24
maintenance and other pecuniary benefits in addition to the decedent';; care, comfort, love, 25
protection, advice, society, and physical assistance. 26
58. At the time of the incident alleged herein, Clustka had a clearly estahlishcd right under the
27
Fourteenth Amendment to be free from deliberate indifference to risk of suicide.
28

10

Case 3:05-cv-00595-HDM-RAM Document 16 Filed 12/12/05 Page 11 of 13

1

59. The acts of defendants Ashton and Robertson were intentional, wanton. malicious and

2 oppressive and made with reckless indifference to plaintiffs· rights thus entitling plaintiff; to an award of
3 punitive damages against the individual officers.
4 SECOND CAUSE OF ACTION
5 (lf'ractice, Policy, Failure to Train -City of Reno Only-42 U.S. C.§ 1983)
6 60. Pl:lintiffs reallege and incorporate each and every allegation contained in the preceding
7 paragraphs.
8 6 l. At all times relevant to this complaint, defendants Ashton and Robertson were police
9
I
10 \ officers/employees of City of Reno Police Department, acting under the direction and control of the City
11 ' of Reno by and through its policymakers.

12

62. Plaintiffs allege all conduct complained of herein by these plaintiffs was the result of an

13 1 abject failure to train defendants Ashton and Robertson regarding the requirement that they report
14 suicide attempts by detainees in their custody.
15 63. City of Reno's failure to properly train, supervtse, control and/or discipline defendants
16 Ashton and Robertson with respect to their obligations to report suicide attempts by detainees is the
17
18 cause in fact and the proximate cause of the injuries claimed by plaintiffs.

19

64. Given the known high prevalence of jail suicides, this failure lo provide proper training

20 amounts to deliberate indifference. City of Reno, through its policymakers, had knowledge of, or had it

21 diligently exercised its duties to instruct, supervise, control, and discipline on a continuing basis, should

22 have had knowledge that the wrongs that were done to plaintiff herein were likely to be committed.
23
65. Plaintiffs allege that the deliberate indifference in City of Reno's lailurc to train involves 24
25 more than a mere suspicion that harm may occur.

26

66. Dt"fendant City of Reno had knowledge of or, had it diligently exercised its duties to

27 instruct, supervise, control, and discipline on a continuing basis, should have h1d knowledge that the

28 wrongs that were done, as heretofore alleged, or other unlawful or unconstituti,)nal aw; were going to

be cornmilled.
II

Case 3:05-cv-00595-HDM-RAM Document 16 Filed 12/12/05 Page 12 of 13

1 I

67. Defendant City of Reno had power to prevent or aid in preventing the commission of said

2 •wrongs, could have done so, and intentionally knowingly, or with deliberate indifference to the rights
j
3 !of det8inees, and specifically decedent Clustka, herein failed or refused to do so.

4

68. As a direct and proximate result of the aforedescribed unlawful and maliciom. conduct by the

I
5 )individual dekndants- approved, ratified, and condoned -- by City of Reno through its policymakers,

6 Clustka was deprived of her life and her right to be secure in her person agairst violations of her due

7
, process rights under the Fourteenth Amendment to the Constitution of the United States and 42 U.S.C. §

8

I 1983.

l) I I
]()

PRAYER FOR RELIEF

11

WHEREFORE, plaintiffs pray for judgment against the defendants as follows:

12

1. For a declaratory and injunctive relief that the polici(s, practices, and acts

13

complained of herein are illegal and unconstitutional;

14

2. For actual and compensatory damages from defendants, j-Jintly and severally as

15

appropriate, in an amount to be determined at trial;

16

3. For exemplary and punitive damages from the individual def.cndants man amount to

17

be deknnined at trial;

18

4. For attorney fees and costs incurred herein;

19

5. For leave to amend this complaint should it become necessar;;

20

6. For nominal damages;

21

7. For such other and further relief as this Court may deem appropriate.

22 23 24

t ~e Dated this Lday of

'2005,
~-{,~~---~

25

TERRiKESE7oOPFR ~

DIANE K. VAILLANCOURT

26

Attorneys for Plaintiff Churla and Dustin Conn

27

28

12

Case 3:05-cv-00595-HDM-RAM Document 16 Filed 12/12/05 Page 13 of 13
--....-

DECLARATION OF SERVICE
I, the undersigned, declare under penalty of perjury:
My business address is 100 N. Arlington Ave. IOF, Reno, NV. 89501. I am over the age of 18 years and not a party to this action. On this day the attached document was mailed to:
CREIG SKAU DEPUTY CITY ATTORNEY CITY ATTORNEY'S OFFICE P.O. BOX 1900 RENO, NV. 89505

Via Facsimile

By facsimile machine at the fax number shown below, at the address indicated.

X By lJ.S. Mail

I placed such envelope with postage thereon fully prepaid in the United States mail

Ptrsonal Service Delivered by hand to the addressee.

of~ _j ,20~5 l2:: Dated this day

0.....

~-+ =T=E~RRI!;;=?=K;:-E~Y~S~E':fRf:.-C;:O;;O~P=E=R~=---....,

 </s> Case 3:05-cv-00595-HDM-RAM Document 49 Filed 08/29/06 Page 1 of 16

1 PATRICIA A. LYNCH Reno City Attorney
2 JACK D. CAMPBELL Nevada State Bar No. 4938
3 Post Office Box 1900 4 Reno, Nevada 89505
Telephone: (775) 334-2050 5 Facsimile: (775) 334-2420
Attorneys for Defendants 6 City of Reno, Robertson & Ashton

7

8

UNITED STATES DISTRICT COURT

9

DISTRICT OF NEVADA

10

11 CHARLA CONN, administrator of the ESTATE OF BRENDA JEAN MS. CLUSTKA,
12 and CHARLA CONN, Plaintiffs,
13

14

vs.

Case No. CV-N-05-0595-HDM-VPC
MOTION FOR SUMMARY JUDGMENT

15 CITY OF RENO, RPD OFFICER RYAN ASHTON, RPD OFFICER DAVID
16 ROBERTSON,

17

Defendants.

18 ___________________________________/

19

Defendants CITY OF RENO, RYAN ASHTON and DAVID ROBERTSON, (hereinafter

20 “CITY OF RENO”), by and through their undersigned counsel, PATRICIA A. LYNCH, Reno
21 City Attorney, and JACK D. CAMPBELL, Deputy City Attorney, hereby moves this Court for
22 summary judgment to all claims made herein pursuant to FRCP 56(b). This motion is based
23
24 upon all pleadings and papers on file herein, the attached Memorandum of Points and

25 ///

26 ///
27 /// 28

Reno City Attorney P.O. Box 1900 Reno, NV 89505
-1-

Case 3:05-cv-00595-HDM-RAM Document 49 Filed 08/29/06 Page 2 of 16

1 Authorities, the attached Exhibits, and any additional or further evidence this Court may deem

2 just and proper.

3

Dated this 29TH day of August, 2006.

4 PATRICIA A. LYNCH

5

Reno City Attorney

6

7

By:

8

9

10

11

/s/ Jack D. Campbell JACK D. CAMPBELL DEPUTY CITY ATTORNEY P.O. Box 1900 Reno, NV 89505 (775) 334-2050 Attorney for Defendants

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Reno City Attorney P.O. Box 1900 Reno, NV 89505
-2-

Case 3:05-cv-00595-HDM-RAM Document 49 Filed 08/29/06 Page 3 of 16

1

POINTS AND AUTHORITIES

2

STATEMENT OF THE CASE

3

On March 19, 2005, the deceased, Brenda Clustka was arrested for domestic violence

4 resulting from a dispute she had with her mother at their shared residence on Elmcrest Drive in
5 Reno, Nevada. Following this arrest, Clustka spent over 30 days in the Washoe County jail
6
7 being released on April 22, 2005. During this incarceration, Clustka was placed on suicide

8 watch for approximately 4 hours by the jail staff on March 20, 2005 because of statements she

9 made about “not being able to make it in jail.”

10

While her daughter was in jail, Clustka’s mother applied for and obtained a Temporary

11 Protective Order requiring Clustka to stay away from her residence and to be supervised by the
12 Reno Police when she came to obtain her personal possessions.
13

14

On April 25, 2005, the third day following her release from jail, Clustka was involved in

15 another dispute with her mother, and during this dispute, Clustka threatened to commit suicide

16 by telling her mother that she (Clustka) was “going to take all of her pills and her mother would
17 only have one daughter.” At the time of this statement, Clustka was taking a generic form of the 18
anxiety medication Xanax. At approximately 8:00 am, Clustka’s mother called 911 and reported 19 20 that her daughter was at the residence causing a disturbance and that she had threatened to kill
21 herself with the overdose.

22

Responding to this call, the Reno Police Department took Clustka into custody and

23 placed her into an ambulance to be transported to Washoe Medical Center (WMC) to be

24 evaluated for a potential Legal 2000, the procedure established by NRS 433A.150 et seq. for
25 emergency admissions into a state mental health facility for persons deemed to be mentally ill
26
27 and a danger to themselves or others.

28

At approximately 9:30 am, Clustka arrived at the WMC Emergency Room and denied

Reno City Attorney P.O. Box 1900 Reno, NV 89505
-3-

Case 3:05-cv-00595-HDM-RAM Document 49 Filed 08/29/06 Page 4 of 16

1 making any suicide threats, denied ever attempting suicide, and stated that she did not want to

2 kill or hurt herself. Clustka then eloped (snuck out) from WMC and had to be relocated by Reno

3 Police and returned to WMC. Following her return at approximately 12:00 noon, Clustka was

4 examined by the Emergency Room physician and placed on a Legal 2000. At approximately
5 4:30 pm on April 25, 2005, Clustka was transferred to Northern Nevada Mental Health Institute
6
7 (NNMHI), the state mental health facility, for observation and treatment.

8

At NNMHI, Clustka was examined by the treatment team, including staff psychiatrist,

9 Dr. Richard Caplan. Clustka denied ever threatening to overdose on her medication, denied ever

10 attempting to harm or kill herself, and stated that she did not want to harm or kill herself. Under
11 the authority granted by NRS Chapter 433A, Dr. Caplan could keep Clustka for a period of 72
12 hours for observation and treatment if he felt that she suffered from a mental illness and was a
13
14 danger to herself. Notwithstanding this authority, Dr. Caplan discharged Clustka the following

15 day at approximately 9:30 am, April 26, 2005, less than 24 hours after her admission into the

16 hospital. At the time of her discharge, Clustka was diagnosed to suffer from alcohol and
17 substance abuse and was considered to be a “low risk of self harm.” In fact, Dr. Caplan was so 18
convinced that Clustka did not pose a risk of suicide that he ordered her private supply of Xanax 19 20 to be returned to her at the time of her discharge. As part of her discharge, Clustka promised Dr.
21 Caplan that she would not abuse her Xanax and that she would not drink alcohol while she was

22 taking her medication.

23

Shortly after 2:00 pm of that same day, a motorist called 911 to report a woman (Clustka)

24 lying on the sidewalk by the intersection of Lander and St. Lawrence Streets in Reno. Initially,
25 Emergency Dispatch directed REMSA, Reno Fire, and Reno Police to the call. REMSA was the
26
27 first to arrive and shortly thereafter canceled both Reno Fire and Reno PD. Eight minutes later,

28

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1 REMSA called Dispatch and requested Reno PD respond for a Civil Protective Custody

2 transport.

3

Under the Civil Protective Custody (CPC) statute, NRS 458.270, when a person is found

4 in any public place under the influence of alcohol in such a condition that she is unable to
5 exercise care for her own safety, she must be placed under civil protective custody by a peace
6
7 officer and transported to the county jail for shelter and supervision until she is no longer under

8 the influence of alcohol. A copy of NRS 458.270 is attached as EXHIBIT “A” and incorporated

9 herein by reference.

10

Defendants Officers Robertson and Ashton were manning the Reno Police prisoner

11 transport vehicle on April 26, 2005, and responded to the REMSA request for CPC transport.
12 When they arrived on scene, they were met by the REMSA medics that advised them that they
13

14 had examined Clustka and that she was medically cleared for CPC transport to the jail. Officers

15 Robertson and Ashton then made contact with Clustka and reported that she was grossly

16 intoxicated, disoriented, and verbally abusive. A preliminary breath test indicated that Clustka
17 had a BA of 0.10 %. Concerned that she was unable to safely take care of herself, Officers 18
Robertson and Ashton decided to follow the REMSA recommendation and transport Clustka to 19 20 the jail for CPC. When they tried to tell Clustka what they were going to do, she became
21 agitated and started to scream at them that she wanted to be taken home. While the officers were

22 dealing with Clustka, a wants and warrants report came back with warnings about violent

23 tendencies, alcohol abuse history, drug abuse history, and mental illness. In addition, the
24 Officers were advised that a Protective Order had been issued against Clustka but had not been
25 served. Officers Robertson and Ashton decided not to serve the Protective Order on Clustka
26 27 because they believed that she was too intoxicated to understand what was going on.
28 ///

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1

Clustka continued to scream and refuse to cooperate with the Officers, and in an effort to

2 avoid a physical confrontation with Clustka, Officer Robertson told Clustka that if she would just

3 get into the van, he would take her home. When told this, Clustka became cooperative and was

4 escorted to the back of the prisoner transport van. Because she was so intoxicated, unsteady on
5 her feet, and was cooperating, Officer Robertson decided not to handcuff Clustka, choosing
6
7 instead to just assist her into a seat in the van and secure her with the seat belt.

8

While en route to the Washoe County Jail on Parr Blvd, Clustka got out of her seat,

9 began walking around in the van, looking out the window, knocking and waiving her hand across

10 the video surveillance camera, and screaming at the Officers. Officer Ashton asked if they
11 shouldn’t stop and secure Clustka back into her seat, but Officer Robertson expressed his desire
12 to just get her to the jail because they were so close. As they proceeded down Parr Blvd., they
13
14 were forced to stop in traffic waiting for a train that was stopped across Parr Blvd. At this time,

15 Clustka was still walking around in the back of the van, screaming, and knocking on the video

16 camera. When this did not get any response from the Officers, she sat back down in her seat,

17 grabbed a shoulder belt and lapped it across her neck, grabbed another shoulder belt in the other

18 hand and crossed it over the other belt and then stared into the video camera.
19

20

Officer Ashton immediately advised Officer Robertson that it looked like Clustka was

21 trying to choke herself. Both Officers immediately exited and went back to the prisoner area of

22 the van. When Officer Robertson opened the door, Clustka immediately started screaming at

23 him that he had lied to her. Both Robertson and Ashton entered the van, removed Clustka’s
24 hands from the shoulder belts, placed her on the floor, handcuffed her hands behind her back,
25 and returned her to her seat securing her with the seat belt for the short trip to the jail. All during
26 27 this time, Clustka is screaming at the officers about them “beating” her. She screamed at

28

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Case 3:05-cv-00595-HDM-RAM Document 49 Filed 08/29/06 Page 7 of 16

1 Robertson that she wanted him to kill her, and when he didn’t respond, she said: “kill me or I’ll

2 kill myself.”

3

After she was secured in her seat, the Officers drove the short distance to the jail and

4 advised the jail staff that they had a disoriented female for CPC. When the jail staff went to
5 remove Clustka from the prisoner transport, she continued to scream at the Officers, accused the
6

7 Officers of beating her, and stating that she wanted to die. Washoe County Jail staff took

8 Clustka into custody and placed her in the CPC area at approximately 3:00 pm on April 26th.

9 Neither Officer Robertson nor Officer Ashton reported the events during the transport because

10 neither Officer thought that Clustka was really trying to harm herself. Both Officers thought that

11 Clustka was just acting out because she was drunk and mad that she did not get her way by being
12 taken home.
13

14

After an uneventful period of detoxification, Clustka was released from CPC at

15 approximately 8:30 pm on April 26, 2005. At the time of her release, she was served with the

16 Temporary Protective Order. Nevertheless, Clustka went back to the Elmcrest residence and
17 created another disturbance. At approximately 11:30 pm, Clustka’s mother called 911 again to 18
report her daughter being at the residence causing another disturbance. Reno Police responded, 19 20 and because Clustka again appeared grossly intoxicated, Reno Police officers placed Clustka into
21 Civil Protective Custody again and transported her back to the Washoe County Jail. Clustka was

22 refused for CPC at the jail because a preliminary breath test indicated that her blood alcohol

23 levels were below 0.08 %. Although, because Clustka appeared intoxicated beyond what the
24 PBT showed, the transporting Police officer took her to WMC’s Emergency Department who re-
25 admitted her for observation. She was discharged from WMC sometime during the early
26 27 morning hours of April 27, 2005.
28 ///

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1

At approximately 2:30 pm on the afternoon of April 27th, grossly intoxicated and in

2 violation of the TPO, Clustka showed up at her mother’s Elmcrest residence and started another

3 disturbance. Clustka’s mother again called 911 and requested that Clustka be arrested for
4 violating the TPO. Accordingly, Clustka was placed under arrest and transported back to
5 Washoe County Jail, this time as an inmate. Per jail intake procedures, Clustka was interviewed
6 7 and examined by a Registered Nurse with Prison Health Services. During this intake interview,
8 Clustka repeatedly told the nurse that she was not suicidal, had never attempted suicide, and did

9 not want to kill or harm herself. During this interview, Clustka did admit that she was taking

10 Xanax for anxiety. Consequently, the intake nurse put Clustka on Housing Unit 3, the mental
11 health unit at the jail and placed her in a red jumpsuit to indicate a high risk inmate.
12 At approximately 8:00 am on April 28th, Clustka was taken to video arraignment for the
13
14 current charges. Following her arraignment, Clustka appeared to be distraught and was noted to

15 be crying when she was being returned to her cell. She was found hanging from her bed sheet in

16 her cell at approximately 9:30 am that same day.

17

STANDARD OF REVIEW

18 Summary Judgment is to be rendered forthwith when, after an adequate period for
19

20 discovery, a party is unable to show a genuine issue as to a material fact of which that party will

21 bear the burden of proof at trial, so long as judgment against that party is appropriate as a matter

22 of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265

23 (1986).
24 The moving party must first make a prima facie showing that summary judgment is
25 appropriate under Rule 56. This does not require the moving party to disprove the opponent’s
26 27 claims or defenses. Instead, this prima facie burden is discharged simply by pointing out for the
28 court an absence of evidence in support of the non-moving party’s claims or defenses. The

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1 burden of going forward then shifts to the non-moving party to show, by affidavit or otherwise,

2 that a genuine issue of material fact remains for the fact finder to resolve. Id.

3

STANDARD OF PROOF

4 When the §1983 claim is based upon a jail suicide, the degree of protection accorded a
5 pretrial detainee is deliberate indifference, which is the same that an inmate receives when
6

7 raising an inadequate medical attention claim under the Eighth Amendment. Payne v.

8 Churchich, 161 F. 3d 1030 (7th Cir. 1998).

9

Under the deliberate indifference test for establishing Eighth Amendment liability of a

10 prison official, liability will lie only if the official knows of and disregards an excessive risk to
11 inmate health or safety; the official must both be aware of facts from which the inference could
12 be drawn that a substantial risk of serious harm exists, and he must also draw the inference. Id.
13
14 (emphasis added)

15

The Eighth Amendment does not apply to pretrial detainees, but as a pretrial detainee,

16 Ms. Clustka was entitled to at least the same protection against deliberate indifference to her

17 basic needs as is available to convicted prisoners under the Eighth Amendment. Cavalieri v.

18 Shepard, 321 F.3d 616 (7th Cir. 2003).
19

20

Under both the Eighth and Fourteenth Amendment standards, the plaintiff has the burden

21 of showing that (1) the harm to the plaintiff was objectively serious; and (2) that the official was

22 deliberately indifferent to her health or safety. Id. at 620.

23

A detainee establishes a §1983 claim by demonstrating that the defendants were aware of

24 a substantial risk of serious injury to the detainee but nevertheless failed to take appropriate steps
25 to protect him from a known danger. Farmer v. Brennan, 511 U.S. 825, 833, 114 S.Ct. 1970,
26
27 128 L.Ed.2d 811 (1994).

28 ///

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1

FACTUAL DISCUSSION

2

Summary Judgment is appropriate in this case because there is no evidence to support a

3 finding that Clustka was a substantial risk of committing suicide at the time she was in the
4 custody of Officers Robertson and Ashton. Plaintiffs must show, through competent evidence,
5 that Clustka was a substantial risk of harming herself, that such risk was objectively serious, and
6 7 that Officers Robertson and Ashton failed to take appropriate steps to protect her. The evidence
8 presented herein will show the opposite to be true. Clustka was considered by her treating

9 psychiatrist to be at a low risk of harming herself at the time she was in the custody of

10 Robertson and Ashton. The undisputed evidence is that she did not harm or attempt to harm
11 herself during that custody. The evidence shows that Clustka did not present an objectively
12 serious risk of self harm while she was in Officers Robertson’s and Ashton’s custody. Lastly,
13
14 the evidence proves that Officers Robertson and Ashton took appropriate steps to protect Clustka

15 when they delivered her to the jail for CPC.

16

Plaintiffs have alleged that the failure of Officers Robertson and Ashton to report

17 Clustka’s behavior during transport to jail staff started a chain of events that ultimately lead to
18 Clustka hanging herself in the jail 2 days after she was released from the custody initiated by
19 20 Officers Robertson and Ashton. There is no causal connection between the two events. The
21 evidence will show that a report of Clustka’s behavior during transport for the April 26th CPC

22 would not have been available or considered by the jail intake staff when Clustka was admitted

23 to the jail as an inmate on April 27, 2005. CPC information is generally not maintained and
24 made available to the nursing staff during the intake procedure for inmates. It is undeniable that
25 this information reported or not, would not have effected how Clustka was handled by Washoe
26 27 County Jail staff.
28 ///

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Case 3:05-cv-00595-HDM-RAM Document 49 Filed 08/29/06 Page 11 of 16

1

Clustka was not a substantial risk of serious injury.

2

On April 25, 2006, Clustka was taken into custody by the Reno Police Department and

3 taken to Washoe Medical Center because of family reports that Clustka had threatened to
4 overdose on her anxiety medication. When she arrived at WMC, she denied threatening suicide
5 or wanting to kill herself. Nevertheless, WMC medical staff placed Clustka on a Legal 2000 (an
6 7 emergency admission to the state mental health facility, Northern Nevada Mental Health
8 Institute). A copy of WMC’s emergency department medical records including the Legal 2000

9 application is attached as EXHIBIT “B” and incorporated herein by reference.

10

On her arrival at NNMHI, Clustka denied all aspects of the reports that she had

11 threatened suicide. She specifically denied that she threatened to overdose on her Xanax
12 prescription. Notwithstanding her denials, she was admitted to NNMHI for observation and
13

14 treatment. During her admission, Clustka repeatedly denied that she was suicidal or had suicidal

15 thoughts. As a result, the treatment team at NNMHI determined that Clustka was a “Low Risk

16 of Harm” and not a serious threat of suicide. She was discharged at 9:30 am on the day
17 following her admission with a diagnosis of alcohol dependence and Benzodiazepine (Xanax) 18
dependence. At the time of her discharge, Clustka promised to follow up with her primary care 19 20 physician, attend out patient substance abuse counseling at Evergreen Counseling, and to not use
21 alcohol or drugs. A copy of the relevant admission records, progress notes, assessments,

22 discharge instructions and orders from NNMHI are attached as EXHIBIT “C” and incorporated

23 here in by reference.
24 The undisputed medical evidence is that on the morning of April 26, 2005, just 5 hours
25 before her contact with Officers Robertson and Ashton, Clustka was determined to be a low risk
26 27 of harm by her treating doctor. She did not present the required objectively serious risk of
28 harm required to keep her in the mental hospital under a Legal 2000.

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1

Attached as EXHIBIT “D” and incorporated herein by reference are relevant portions of

2 the deposition transcript of Jeffery Caplan, M.D., Clustka’s treating psychiatrist. Dr. Caplan

3 testified that he would not have discharged Clustka if he believed that she was an extreme risk of

4 self harm. He also testified that he had no information that would cause him to believe that

5 Clustka became an extreme risk of harm after her discharge. EXHIBIT D, pgs. 103 – 104.
6

7

Officers Robertson and Ashton took the appropriate steps to protect Clustka.

8

Dr. Caplan testified that the only safety risk Clustka had at the time of her discharge was

9 her “using substances.” EXHIBIT D, pg. 105. He stated that the proper steps to address this

10 safety concern was to put Clustka in an environment where she could not use either alcohol or
11 her Xanax. EXHIBIT D, pg. 106. Dr. Caplan also testified that if Clustka was later found
12 sleeping on a sidewalk, grossly intoxicated with a BA of 0.10%, she could not be returned to
13
14 NNMHI until after she was detoxed, and that having Clustka detoxed at the CPC facility at the

15 jail would be the appropriate way to insure her safety. EXHIBIT D, pgs. 150 – 152.

16

These undisputed facts prove that at the time Officers Robertson and Ashton placed

17 Clustka into Civil Protective Custody, she was not a substantial risk of harm and that her only
18 safety need was to be separated from the drugs and alcohol that she was abusing. Placing her on
19 20 CPC and placing her into the custody of the jail medical staff appropriately protected her from

21 those safety risks. This conclusion is further solidified by the undisputed fact that Clustka did

22 not attempt to harm herself at any time during the CPC initiated by Officers Robertson and

23 Ashton. Nor did she attempt to harm herself following her release from that custody. It wasn’t
24 until after she had been placed on another CPC, seen again by the doctors at the emergency
25 room, released from the hospital, arrested, processed by the medical staff at the jail, housed for a
26 27 day, and finally after her arraignment did Clustka commit suicide.
28 ///

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1

Jail nursing staff would not consider CPC information during prisoner intake

2

interviews.

3

Gail Singletary, Health Services Administrator for Prison Health Services (PHS) at the

4 Washoe County Jail, testified that if someone came to the facility on a CPC and the transporting
5 officer alerted the medical staff that the person had made a suicidal gesture, the nursing staff
6
7 would not be able to see if that person had previous history in the jail, had been on a suicide

8 watch, or had other issues in the past. In fact, Singletary admitted that PHS is not supposed to

9 maintain a strong paper trail on CPC individuals. Attached as EXHIBIT “E” are relevant

10 portions of Gail Singletary’s deposition and incorporated herein by reference. See: EXHIBIT E,
11 pgs. 48-49.
12 Singletary stated that if the PHS nursing staff had been advised that Clustka “tried to
13 14 choke herself” on the CPC transport on April 26th, such information would not be available to the

15 nursing staff doing Clustka’s intake interview on April 27, 2005. Furthermore, Singletary

16 testified that the intake nurse would likely not have known that Clustka was at the jail on a CPC
17 the day before. Singletary testified that unless the same nurse handled the CPC and the prisoner 18
intake interview, “there would really be no way for them to know that (report of trying to choke 19 20 herself)”. EXHIBIT E, pgs. 54-55. It is undisputed that the nurse that performed the intake of 21 Clustka on April 27th was not the nurse on duty during Clustka’s two CPCs on April 26th.

22 Consequently, it is undisputed that during her intake on April 27th, the nurse did not know, and

23 Clustka did not admit, that she had been at the jail for CPC, twice, the day before.

24 Singletary testified that a report that Clustka “tried to choke herself” would have

25 provided a “heads up” for the intake nurse, but:
26

27

The statement alone is not enough to make an absolute determination. You would look at the person, what are they

28

saying now, what is their previous behavior, how recent was the

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1

previous suicidal statement and /or gesture, what type of history do

they have along the mental health guidelines, how were they

2

presenting. They would take into account the fact that perhaps

she was intoxicated on one day and not the next, so there’s a

3

variety of variables that all go into creating this picture.

4 EXHIBIT E, pgs. 55 -56, emphasis added.
5 The undisputed fact is that Clustka repeatedly denied that she had ever attempted suicide
6
7 or that she wanted to commit suicide when she was interviewed by the medical personnel,

8 including the PHS intake nurse. Copies of Clustka’s PHS Initial Medical Screening for April 27,

9 2005, are attached as EXHIBIT “F” and incorporated herein by reference. Plaintiffs claim that

10 Clustka would have been handled differently had her behavior on April 26, 2005 been reported is

11 pure speculation and contradicted by the evidence.
12 LEGAL DISCUSSION
13

14

Deliberate indifference entails something more than negligence, but it is satisfied by

15 something less than acts or omissions for the very purpose of causing harm or with knowledge

16 that harm will result. Thus it is the equivalent of acting recklessly. Farmer v. Brennan, 511 U.S.
17 at 835. 18
There is no evidence that Officers Robertson and Ashton acted recklessly. The evidence 19 20 clearly shows that they acted appropriately to address Clustka’s safety needs. She presented a
21 risk to herself because of her intoxication from alcohol and drugs. Placing her on CPC and

22 delivering her to the medical staff at the jail appropriately prevented her from abusing any more

23 substances and committed her to the care of trained medical personnel.
24 There is no evidence that Officers Robertson and Ashton drew the required inference that
25 Clustka was a substantial risk of serious harm to herself. Farmer v. Brennan, 511 U.S. at 837.
26 27 The undisputed evidence is that both Officers Robertson and Ashton viewed Clustka’s behavior
28 as nothing more than the acting out of an angry, intoxicated person. Without a showing of facts

Reno City Attorney P.O. Box 1900 Reno, NV 89505

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Case 3:05-cv-00595-HDM-RAM Document 49 Filed 08/29/06 Page 15 of 16

1 from which the inference could be drawn that a substantial risk of serious harm existed, and that

2 Robertson and Ashton drew that inference, no liability may lie. Id.

3

CONCLUSION

4 Summary Judgment is proper in this matter. The undisputed facts show there is no
5 material issue for trial. The Defendants are due qualified immunity for these claims because
6
7 there is no showing that Clustka presented a substantial risk of serious harm when she was in

8 Defendant’s custody. There is no evidence that a substantial risk of suicide was objectively

9 serious and subjectively ignored by the Defendants. There is no evidence that Defendants drew

10 the necessary inference that a substantial risk of serious harm existed at the time they delivered
11 Clustka to the jail. Furthermore, there is no evidence that Defendants did not believe that any
12 safety needs Clustka might have had would not be appropriately addressed by the staff at the jail.
13
14 Lastly, there is no credible evidence that what happened on April 26, 2005 had any relevance or

15 bearing on Clustka’s actions of committing suicide on April 28, 2005.

16

Therefore, Defendants City of Reno, RPD Officers Ryan Ashton and David Robertson

17 respectfully move this Court for summary judgment on their behalf to all claims.
18 RESPECTFULLY SUBMITTED.
19 Dated this 29TH day of August, 2006.
20

21

PATRICIA A. LYNCH

Reno City Attorney

22

23

By:

24

25

26

27

/s/ Jack D. Campbell JACK D. CAMPBELL DEPUTY CITY ATTORNEY P.O. Box 1900 Reno, NV 89505 (775) 334-2050 Attorney for Defendants

28

Reno City Attorney P.O. Box 1900 Reno, NV 89505

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Case 3:05-cv-00595-HDM-RAM Document 49 Filed 08/29/06 Page 16 of 16

1

CERTIFICATE OF SERVICE

2

Pursuant to FRCP 5(b), I certify th at I am an em ployee of the RENO CITY

3 ATTORNEY'S OFFICE, and that on this date, I am serving the foregoing document(s) on

4 the party(s) set forth below by:

5 ________
6

Placing an original or true copy thereof in a sealed envelope placed for collection and mailing in the United States Mail, at Reno, Nevada, postage prepaid,

7

following ordinary business practices.

8 ____X___ Via Federal Court Electronic Filing

9 ________ Personal delivery.

10 ________
11 ________
12 ________
13

Facsimile (FAX). Federal Express or other overnight delivery. Reno/Carson Messenger Service.

14 addressed as follows:

15

Terri

Keyser-Cooper

16

Law Office of Terri Keyser-Cooper

17

100 N. Arlington Avenue, #10F Reno, Nevada 89501

18

Diane

K. Vaillancourt

19

Law Office of Diane K. Vaillancourt

20

849 Almar Avenue, Suite C403 Santa Cruz, California 95060

21 DATED this 29th day of August, 2006.
22

23

24

/s/

25

Em

Tamme Sutton Tamme Sutton
ployee of the Reno City Attorney

26

27

28

Reno City Attorney P.O. Box 1900 Reno, NV 89505

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 </s> Case 3:05-cv-00595-HDM-RAM Document 53 Filed 09/25/06 Page 1 of 29

1 TERRI KEYSER-COOPER

2

Law Office of Terri Keyser-Cooper Nevada Bar No. 3984

3 100 N. Arlington Ave., #10F

Reno, NV 89501

4 (775) 337-0323

5 DIANE K. VAILLANCOURT 6 Law Office of Diane K. Vaillancourt
Nevada Bar No. 9277 7 849 Almar Ave., Suite C403 8 Santa Cruz, CA 95060
(831) 458-3440 9 Attorneys for Plaintiffs

10

UNITED STATES DISTRICT COURT

11

DISTRICT OF NEVADA

12

13

CHARLA CONN, Administrator of the ESTATE OF BRENDA JEAN CLUSTKA,

14 CHARLA CONN and DUSTIN CONN,

15

Plaintiffs,

Case No. 3:05-cv-00595 HDM (RAM)
PLAINTIFF’S OPPOSITION TO MOTION TO FOR SUMMARY JUDGMENT

16

vs.

17 CITY OF RENO, RPD OFFICER RYAN ASHTON, RPD OFFICER DAVID
18 ROBERTSON,

19

Defendants.

20

/

21 I. PRELIMINARY STATEMENT

22

RPD officer defendants Ryan Ashton and David Robertson had severa l options available to save

23 Brenda Cluskta’s life after she both attempted and threatened to commit suicide in their presence, but they

24 couldn’t be bothered—and th ey admitted as much. Her suicide attempts and threats “didn’t count” and

25 they do not acknow ledge their duty to p rotect her from self-harm. The deliberate indifference these

26 officers displayed is as outrageous as it is unlawful.

27

There is no doubt that Clustka – being transported to jail on ci vil protective custody, having

28 committed no crime and bothered no one, with a m ere .10 breathalyzer reading as she stood in a R eno

1

Case 3:05-cv-00595-HDM-RAM Document 53 Filed 09/25/06 Page 2 of 29

1 residential neighborhood – attempted suicide by choking herself with a seatbelt strap in the paddy wagon

2 and screamed multiple times how she wanted to die. Th ere is no doubt that R obertson and Ashton

3 watched Clustka attempt suicide and heard her threats. There is no doub t they had been advised she was

4 mentally ill. There is no doubt th ey knew all suicide attem pts must be reported and officers do not have

5 discretion to fail to file a report on such matters or notify jail staff.

6

On April 26, 2005, after witnessing Clustka’s attempt to strangle herself and threats to kill herself,

7 neither officer took any action to protect her. They failed to take her to a lo cal hospital for suicide

8 assessment and treatment, they failed to notify anyone at the jail, they failed to write an incident report,

9 they even failed to alert any supervisor, jail staff, or tr ained jail m edical officers to Clustka’s suicide

10 attempt and threats. Reporting the incident “never really crossed” Ashton’s “mind.” Robertson sim ply

11 “didn’t think about” relaying the information.

12

Even in hindsight after Clustka strangled herself to death in jail and this lawsui t was filed, both

13 officers continue to insist they would do “exactly” the same thing agai n. Their extreme position starkly

14 contradicts the testim ony of RPD Depu ty Chief James Johns, their immediate supervisor Sgt. David

15 Evans, and Washoe County jail requirements as described by numerous Washoe County officials.

16

Robertson and Ashton deny all responsibility to report Clustk a’s suicide atte mpt and threats

17 because she registered .10 on the breathalyzer and therefore was “intoxicated.” They insist that suicide

18 gestures and threats by int oxicated persons “don’t count” and so they are free to ignore them. Robertson

19 and Ashton’s ignorance fl ies in the f ace of medi cal findings documenting a high correlation betw een

20 intoxication and suicide, testimony by their superiors that it is im portant to take seriously the suicide

21 threats of intoxicated persons, and experts in the field. That these officers insist they are free to ignore the

22 suicide threats of intoxicated persons reveals an app alling lack of training a nd forms the basis for

23 municipal liability.

24

While Clustka did not succeed in choking herself on April 26, 2005, less than 48 hours later, the

25 morning of April 28, 20 05, she did. In the in terim, the jail brief ly released and reincarcerated her. The

26 evidence will show that several options were available to save Clustka had Robertson and Ashton only

27 reported what they saw and heard. First, they could have taken her dire ctly to a hospital under Nevada’s

28 Legal 2000 involuntary commitment procedure and informed emergency medical staff of what they saw

and heard (see E xh 25, RPD Legal 2000 Training). Second, had jail staff been informed of Clustka’s
2

Case 3:05-cv-00595-HDM-RAM Document 53 Filed 09/25/06 Page 3 of 29

1 suicidal act and statements, it would have had the option of refusing her adm ittance, instituting a Legal

2 2000, and sending her to a hospital f or assessment and treatment. Third, the jail could have decided to

3 admit her and keep he r under suicide watch until she was detoxified, then send her to a hospital under a

4 Legal 2000 as appropriate.

5

Had Robertson and Ashton only re ported what they saw and he ard, these several life-saving

6 options were available, al l of which would have enta iled appropriate interventi on by qualified medical

7 and psychiatric staff. Because Robertson and Ashton failed to do so, no preventive precautions were taken

8 and Clustka lost a critical opportunity to receive the desperately needed suicide intervention, intervention 9 she required and kept her alive.1

10 II. DISPUTED MATERIAL FACTS NECESSITATING TRIAL

11

A. Before Committing Suicide, Brenda Clustka Accumulated a Well-Documented

History of Mental Illness, Suicide Attempts, and Legal 2000’s 12

13

1. Clustka’s History of Mental Illness, Suicide Attempts, and Legal 2000’s

14

On September 14, 2001, pursuant to a Legal 2000 involuntary commitment, Brenda Clustka was

15 accepted for treatment at the Northern Nevada Mental Health Institute (NMHI). (Exh 1, COR 1029). She

16 slashed her wrists wi th a piece of glass (Exh 1, COR 1061-1062). Her history of im pairment recited

17 longstanding use of anti-psychotic medications (Exh 1, COR 1036). A breathalyzer test indicated she had

18 been drinking. She w as discharged with prescripti on medication and instructions to enroll in weekly

19 “Lifeskills” outpatient therapy at Washoe Medical Center (WMC) (Exh 1, COR 1068). Clustka remained

20 suicide free for almost two years.

21

On August 17, 2003 pursuant to her second Legal 2000, C lustka was admitted to S t. Mary’s

22 Hospital for overdosing on over-the-counter medication, slashing her w rists, and stating she “wanted to

23 die” (Exh 2). A nurse recorded that she was legally intoxicated with a breathalyzer reading of .11 on

24 admission. West Hills Hospital later diagnosed her as suffering from major depression with alcohol abuse

25 and certified her Legal 2000 adm ission to NMHI. At NMHI she was kept for two days and discharged

26 with prescriptions for medication and therapy (Exh 2). She remained suicide free for eight months.

27

28

1 Clustka had numerous documented suicide attempts. The mo st recent was April 25, 2005, t he day before her interaction with defendants. Had she been taken again on April 26, 2006, for the second

attempt in two days – she would very likely have become an inpatient and received the care she required

to prevent her death.

3

Case 3:05-cv-00595-HDM-RAM Document 53 Filed 09/25/06 Page 4 of 29

1

On April 3, 2004, Clustka was agai n taken on a hospital on a Legal 2000. Clustka’s third suicidal

2 incident followed a high period of alcohol abuse. (Exh 3, COR 528). After a workup, WMC certified her

3 for the Legal 2000 and transfer to NMHI (Exh 3, COR 480-484; COR 562 ). Clustka was hospitalized 72

4 hours and remained suicide free approximately one year.

5

Pursuant to a fourth Legal 2000, Clustka was again brought in by Reno police and adm itted to

6 WMC on April 25, 2005, the day before her interaction with Robertson and Ashton. Assessed with

7 “acute suicidal ideation,” she was transferred to NMHI (Ex h 4, COR 898; 472- 473). After denying

8 suicidal thoughts and assuring staff she would not drink, she was discharged after an overnight stay with

9 recommendations for alcohol rehabilitation and counseling (Exh 4).

10

2. Although Advised of Brenda Clustka’s “Mental Illness,” Defendants Failed

To Do A Legal 2000 on April 26, 2005 11
On April 26, 2005,2 shortly after being released f rom NMHI, Clustka was again drinking alcohol

12

and wandering about a residential area in Reno. Officers Robertson and Ashton picked her up a nd

13

transported her to jail on a civil protective custody hold. Before transporting her, they learned that Clustka

14

was mentally ill and had a history of violence and substance abuse. On the way to ja il, Robertson and

15

Ashton saw through the pa ddy wagon surveillance camera Clustka attempt to choke herself by wrapping

16

the seatbelt around her n eck. When they stopped the paddy w agon and unwound the se atbelt strap from

17

around her neck, Clustka threatened to kill herself (Exh 5, Ashton’s Report Following Clustka’s Death at

18

the Jail, 5:18-19; 6:1-6; see also Exh 6, Ashton’s report dated April 28, 2005).

19

Despite being advised of Clustka’s “Mental Illness,” Robertson and Ashton failed to do a Legal

20

2000, failed to report her su icide attempt to jail staff, and failed to notify a supe rior as to wh at they had

21

witnessed. As a result, no special precautions were taken to protect Clustka from suicide.

22

3. Clustka Hangs Herself On April 28, 2005

23

Clustka hung herself with a bed sheet on April 28, 2005, in the Washoe County Jail.

24

B. All Witnesses Acknowledge a Str ong Relationship Between Mental Illness and

25

Suicide, Providing Protections to Prevent The Mentally Ill from Killing Themselves

26

All witnesses acknowledge a high correlation between mental illness and suicide. Gail Singletary,

27 registered nurse and health services administrator at the Washoe County jail, testified that of the seven jail

28
2 More f acts will follow concerning this date as it is the date defendants Robertson and Ashton.

of Clustka’s interaction with
4

Case 3:05-cv-00595-HDM-RAM Document 53 Filed 09/25/06 Page 5 of 29

1 suicides in two y ears, the m ajority were id entified as having psychiatric issues (Exh 7, 12:4-13).

2 Singletary, who has an exte nsive background in psychi atric nursing, testified: (1) there is a correlation

3 between suicide and depression (Exh 7, 19:7-9); (2) persons with mental health history are at higher risk

4 of suicide (Exh 7, 28:25-29:4); (3) persons with a history of one or more suicide attempts are at a greater

5 risk than persons who have never made an attempt (Exh 7, 21:3-7); and (4) persons with a prior risk of

6 suicide are at higher risk for future suicide (Exh 7, 36 :21-37:1). In other words, Brenda Clustka fit the

7 profile of someone at higher risk of suicide.

8

This evidence is crucial. Here, the officers testified that while they were aware of a connection

9 between mental illness and suicide, nonetheless, they insisted the connection could be disregarded if the

10 person was intoxicated. (Exh 8, 49 :4-8, 58:9-24; Exh 9, 97:22-98:1, 107:8-11). These officers were not

11 trained to know that all suicid e attempts and threats m ust be treated seriously or to know that police

12 officers do not have discretion to ignore suicide attempts by intoxicated persons.

13

C. NRS 433A.115 Gives P olice Officers Authority to T ake Mentally Ill Persons Who

Attempt Suicide to Emergency Medical Care by Involuntary Commitment 14

15

NRS § 433A.115 gives police officers authority to involuntarily commit mentally ill persons who

16 attempt or threaten suicid e by taking them to an emergency medical facility whether or not they are

17 intoxicated (Exh 10). All Washoe County personnel, RPD administrators, and the defendants themselves

18 recognize that they may make an involuntary mental health commitment of a person who threatens

19 suicide and is m entally unstable. Nevada’s C ivil Protective Custody Statut e, NRS 458.270, sim ilarly,

20 mandates that an intoxicated person taken into custody be taken immediately to an “appropriate medical

21 facility if his condition appears to require emergency medical treatment” (see Exh 10, Exh 26).

22

RPD Deputy Chief James Johns, a self-identified policymaker (Exh 11, 5:6-7), testif ied that a

23 “Legal 2000” occurs when an officer is dealing with an individual who demonstrates a potential threat to

24 his or herself (Exh 11, 45:13-21). In considering a Legal 2000, the issue is “whether or not the person is

25 exhibiting those behavior traits that would lead the officer to believe the individual is a th reat to his or

26 herself” (Exh 11, 46:22-25). Even if a person is accused of a he inous crime, an officer m ay take th e

27 person to a hospital on a Legal 2000 (Exh 11, 47:6-13). W ashoe County Sheriff’s Department Lt. Milt

28 Perry agreed, stating that instead of booking such persons, officers may cite and take them directly to the

hospital on a Legal 2000 (Exh 13, 55:11-23, 64:5-9).

5

Case 3:05-cv-00595-HDM-RAM Document 53 Filed 09/25/06 Page 6 of 29

1

RPD Sgt. Evans testified that officers conduct Legal 2000 holds when someone threatens to harm

2 his or herself. (Exh 12, 21:11-13). If an officer is confronted with someone who threatens to kill his or

3 herself, the person is ta ken on a Legal 2000 to be assessed and evaluated (Exh 12, 33:3-24, 23:2-4, 42:1-

4 6). “If she’s making statements about killing herself we’re going to make sure that she is taken to a safe

5 place” (Exh 12, 22:1 9-21). According to E vans, someone with medical training is in a better position to

6 evaluate such a person than a police officer. (Exh 11, 25:7-26:2).

7

D. Robertson and Ashton’s Insistence that the Suicide Threats of an Intoxicated Person

May be Ignored Is Contradicted by All 8

9

Defendant Ashton agreed that if an officer is transp orting a person who i s “about to harm

10 themselves,” he is aware that person should be taken to a m edical facility (Exh 8, 46 :7-13). Robertson

11 further agreed that someone who has mental illness and indicates intent to engage in self-harm should be

12 checked out a “qualified professional” (Exh 9, 104:17-22, 102:19-103:3; 85:12-19). Robertson

13 acknowledged that if he is aware someone is about to harm his or herself, it is “his job” and RPD policy

14 to take every precaution so that suicide does not happen (Exh 9, 86:20-87:4).

15

However, both Robertson and Ashton wrongly insist they are entitled to ignore suicide threats by

16 persons who are intoxicated (Exh 9, 106:23-107:1). According to Robertson, the suicidal statements of an

17 intoxicated person like Clustka “don’t count” (Exh 9, 107:8-11). Ashton agreed, testifying that a

18 statement concerning suicide from an intoxicated person is not credible (Exh 8, 58:9-24). Nothing in RPD

19 policy or Nevada law supports these defendants’ contention they may ignore suicide attempts or threats

20 by an intoxicated person.

21

In fact, Robertson and Ashton’s testimony that the suicide threats of an intoxicated person may be

22 ignored is contrary to the testimony of all RPD officials, all Washoe County officials, NMHI psychiatrist

23 Dr. Jeffrey Capl an, and j ail health administrator Gail Singletary. These individuals testified that the

24 suicide threats of intoxicated persons must be taken seriously. Dr. Caplan te stified that a risk factor he

25 considers in doing a suicide assessment is r ecent excessive drinking and/or dr ugs, which is a f actor

26 heightening the risk of su icide (Exh 15, 23:12-20). According to Dr. Caplan, the fact of Clu stka’s

27 intoxication “would have set off an alarm bell saying this person is at high risk of suicide” (Exh 15,

28 25:4-9).

6

Case 3:05-cv-00595-HDM-RAM Document 53 Filed 09/25/06 Page 7 of 29

1

Singletary agreed that intoxication and emotional state are strongly related to suicide (Exh 7, 19:1-

2 12), adding that the threats of an intoxicated person should be taken seriously (Exh 7, 19:20-20:7). RPD

3 Deputy Chief Johns testified it is not the policy of the Reno Police Department to ignore threats of suicide

4 by intoxicated persons or to consider such threats any “less serious” than those made by non-intoxicated

5 persons (Exh 11, 47:21-48:4). Sgt. Evans testified that an officer transporting an intoxicated prisoner to

6 jail may not disregard the intoxicated person’s suicide threat. (Exh 12, 34:4--35:25). Lt. Perry testified it

7 would be “against the rules” to disregard a suicide threat from an intoxicated person. (Exh 13, 27:9-14).

8

E. The Failures of Robertson and Ashton Were in Violation of Policy

9

1. The Events of April 26, 2005

10

On April 26, 2005 at approxim ately 2:00 p.m., Robertson and Ashton received a call from RPD

11 dispatch concerning an intoxicated female (Exh 9, 35:9-18). When they arrived, Remsa was talking to

12 Clustka – she had registered a .10 on the breathalyzer (E xh 9, 59:5-9). Remsa had temporarily detained

13 Clustka (Exh 9, 61:9-22) . Robertson introduced himself, telling Clustka that due to her level of 14 intoxication she was going to jail.3 Clustka, agitated, refused to go to jail and said sh e wanted t o go 15 “home” to gather her belongings (Exh 9, 37:24-38:11 & 38:20-23).4

16

a. Clustka Is Not Bothering Anyone or Committing a Crime

17

The officers testified that Brenda Clustka had not committed any crime on April 26th (Exh 9, 36:8-

18 20). There were no com plaints that she w as “bothering” any person s (Exh 9, 71:8-10). She w as not

19 fighting with anyone of the street or causing any disturbance whatsoever (Exh 9, 62:14-18). To be taken

20 to “civil protective custody” (CPC) – a non-criminal charge – a person must demonstrate some

21 impairment. Robertson testified that Clustka’s impairment was she had slurred speech, was unsteady on

22 her feet, and had the aroma of intoxicants about her. On cross-examination, Robertson admitted: (1) it is

23 not a violation of the law to be unsteady on one’s feet (Exh 9, 65:20-25; 66:1-9); (2) it is not a violation to

24 have the aroma of an in toxicating beverage on one’s person (Exh 66:10- 13); (3) it is no t a violation to 25 consume intoxicating beverages (Exh 64:20-22). 26

27

3 According to Ashton, needing CPC is not a crime (Exh 8, 40:21-26).

28

4 Clustka, who lived with her ch ildren in the home of her moth er, Donna Cl ustka, had earli er gotten into an argument with her mother who had taken out a Temporary Protection Order (TPO) against

her. While not te chnically “served” with t he TPO, she was aware of its existence and wanted the

officers’ help in gathering her belongings so as to avoid violating the TPO.

7

Case 3:05-cv-00595-HDM-RAM Document 53 Filed 09/25/06 Page 8 of 29

1

Whatever impairment Clustka had from intoxication, at .10, it had to be minor. Clustka was not

2 falling down or stum bling, she was no t lying on private property (Exh 9, 59:1-4; 66:6-9; Exh 8, 44:23-

3 25). She could walk like “anyone else,” carry on a conversation, and respond to questions. (Exh 9, 67:14-

4 68:4; Exh 8, 43:5-6). She was not talking to herself or bothering anyone (Exh 8, 63:2-3; 63:23-64:2).

5

b. The Officers Deliberately Lie to Gain Clustka’s Cooperation

6

Having decided to take the som ewhat inebriated Clustka to jail, Robertson and Ashton believed

7 they would have an easier time getting her into the transport vehicle if they lied to her about where they

8 were taking her (Exh 8, 37:10 -14). Both admitted they lied, telling her they’d take her home when they

9 knew they were taking her to jail (Exh 9, 39:4-17; Exh 8, 37:8-9). The decision to take Clustka to jail was

10 made without even interviewing her (Exh 9, 63:16-64:2; Exh 8, 41:17-20).

11

c. Realizing She Is Being Taken to Jail, Clustka Attempts Suicide

12

Believing the officers were help ing her go home to retrieve her belongings, Clustka was initially

13 calm and cooperative. However, as the transport vehicle approached the jail, she realized that the officers

14 had lied to her and became angry (Exh 8, 37:16-25; Exh 9, 58:8-9). She unbelted her seatbelt, got up, and

15 began moving around. (Exh 9, 42:18-24). Ashton next saw Clustka with a seatbelt w rapped around her

16 neck through the surveillance camera and ob served she was app earing to “choke” herself. He

17 communicated to Robertson, who was driving, that she was “trying to choke herself” (Exh 8, 65:2-7; Exh

18 16, Adm 2, 31, 35, 36, 39, 40, 41, 44, 45). Ashton admitted that he knew at that tim e that Clustka had a

19 history of mental illness (Exh 8, 65:8-11; Exh 16, Adm 14, 16).

20

Robertson also recognized that Clustka was trying to choke herself (Exh 9, 119:8-15). R obertson

21 stopped the paddy w agon. Both officers proceeded to grab Clustka’s hands and, together, they rem oved

22 the seatbelt from her neck by “going around he r neck” to unwind it (Exh 8, 65:12-24; 66:4-10). C lustka

23 angrily screamed at the officers: “You lied to me, I want to die, kill me, you lied to me” (Exh 9, 45:11-21;

24 Exh 16, Adm 21; Exh 17, Adm 54). Again, as the paddy wagon proceeded to the jail, at the sally port,

25 Clustka again screamed at Robertson that she wanted to die (Exh 9, 47:1-9).

26

2. The Officers Do Nothing to Protect Clustka from Self-Harm

27

Admitting it would have taken “fiv e seconds” to inform jail staff that his detainee had attempted

28 to kill herself during transport – Robertson said nothing (Exh 9, 48:1-9; Exh 17, Adm 55, 56). Clustka’s

8

Case 3:05-cv-00595-HDM-RAM Document 53 Filed 09/25/06 Page 9 of 29

1 threatened suicide in the paddy wagon were so insignificant to him that he “didn’t think about” relaying

2 the information to any one at the jail (Exh 9, 127:23-128:3). He wrot e no r eport on Cl ustka’s suicide

3 attempt until after his supervisor ordered him to do so after she killed herself (Exh 9, 30:9-11; 33:13-16).

4

Robertson knew better. He testified that RPD policy mandates the reporting to a supervisor of any

5 suicide attempt or threat (Exh 9, 133:1-19). He ju stified his failure to write a report, notify jail staff, or

6 alert a supervisor by claiming he did not believe Clustka’s wrapping of the seatbelt around her neck was a

7 true suicide attempt – she was just “angry” (Exh 9, 49:7-20). Because Robertson perceived Clustka to be

8 merely angry, he asserted, failing to notify jail staff, write a report, or inform a supervisor was appropriate

9 (Exh 9, 129:13-18; 133:20-25). According to Robertson, if the same situation were to occur tomorrow, or

10 at any time in the future, he would handle it “exactly” the same way (Exh 9, 133:20-25; 130:6-8).

11

Ashton similarly testified that he hadn’t bothered to think. When asked why he failed to report her

12 conduct, he stated, “It never really crossed m y mind” (Exh 8, 8:3-8; E xh 16, Adm 48, 50, 53-56).

13 According to Ashton, C lustka’s suicidal gestures we re not “im portant enough” to report because they

14 were – in his view – m erely a manipulative attempt to get the officers’ attention (Exh 8, 33:5-11; 70:1-3;

15 70:11-13). Unwavering, Ashton insisted that it was not a bona fide suicid e attempt, the decision he made

16 on April 26, 2005, to no t inform jail staff was correct, and if the situation were to happen again he’d

17 handle it exactly the same way (Exh 8, 33:12-13; 34:1-10; 34:24-35:7; Exh 16, Adm 46).

18

Neither Robertson nor Ashton received discipline for their failure to re port Clustka’s suicide

19 attempt and threats on April 26, 2005 (Exh 16, Adm 57, 58; Exh 17, Adm 51-52).

20

3. Failure to Report Suicide Attempt/Threats Violated Policy

21

Defendants Robertson and Ashton stand alone in their insistence that they were correct in failing

22 to notify anyone as to Clu stka’s conduct. Their RPD superiors and W ashoe County officials strongly

23 disagree. According to these others, Robertson and Ashton violated well-known policy and practice.

24

a. Prison Health Services Director Gail Singletary

25

Following Clustka’s suicide – to protect against future policy violations by transporting officers –

26 the Washoe County Detention Center implemented a new policy requiring all officers who tr ansport

27 detainees to the Washoe County jail to fill out a form indicating whether the deta inee transported is or is

28 not a “suicide risk.” The forms are at the jail and, according to Singletary, all “users” of the jail “must” fill

9

Case 3:05-cv-00595-HDM-RAM Document 53 Filed 09/25/06 Page 10 of 29

1 out the form (Exh 7, 21:22-22:25; 23:21-25).

2

Singletary testified, all transporters to the jail must answer whether the detai nee’s conduct

3 indicates they have mental health problems or are suicidal (Exh 7, 24:12-18). Singletary made crystal

4 clear that, if a transporting officer sees either a suicidal gesture and/or hears a threat of s uicide, that must

5 be communicated to jail staff (Exh 7, 25:2-6). Singletary further testified that, if RPD officers transporting

6 a detainee to ja il see the detainee attempt to c hoke his or herself (as Robertson and Ashton did with

7 Clustka), that too must be communicated to jail staff (Exh 7, 25:20-26:2).

8

“All law en forcement officers should be aware of the s igns and symptoms of su icide to

9 communicate it an d help avert it, ” Singletary testified (Exh 7, 26 :21-24). Singletary added that, when

10 Robertson and Ashton arrived at the jail with Cl ustka, they should have let jail nurses know what they

11 saw and heard (Exh 7, 53:4-11). They should have informed jail and medical staff of her conduct because

12 there would have been an “opportunity to do a more complete evaluation” (Exh 7, 53: 13-20). The fact

13 that Clustka had made a recent statement threatening suicide, made a recent gesture, and had a history of

14 suicide were appropriate for an intake nurse to consider in deciding what to do with her (Exh 7, 57:6-10).

15

b. Washoe County Lt. Milt Perry

16

According to Lt. Pe rry, all deputies must take action and inform a supervisor. Deputies have no

17 discretion to ignore a detainee’s threat of suicide (Exh 13, 51:6-14). Perry testifie d the “threat to kill

18 oneself” by any detainee should be taken seriously (Exh 13, 27:19-21). A deputy who has knowledge that

19 a detainee has threatened suicide will generally take such information to medical staff and ask what to do

20 (Exh 13, 43:3-6). Like Singletary, Perry was adamant that all communication between a transporting

21 officer and jail sta ff regarding suicide m ust be docum ented and reported (Exh 13, 53:15-19). Bef ore

22 joining Washoe County Sheriff’s Department, Perry was a RPD officer. He testified, from his training as

23 a police officer, th at, when he used to tran sport detainees to th e jail who s aid they wanted to kill

24 themselves, such information had to be reported to the jail staff (Exh 13, 71:1-10).

25

c. RPD Deputy Chief James Johns

26

Deputy Chief Johns testified that whenever a detainee states he or she wants to kill him or herself;

27 that statement should reported to appropriate officials – it is never okay to ignore a suicide threat (Exh 11,

28 55:15-24). Johns added that, if Robertson and Ashton saw Clustka wrap the seatbelt around her neck and

10

Case 3:05-cv-00595-HDM-RAM Document 53 Filed 09/25/06 Page 11 of 29

1 heard her statements about wanting to kill herself, they should have told jail staff when they arrived at the

2 jail (Exh 11, 39:13-19). Had he been transporting an intoxicated person to jail who said she wanted to kill

3 herself and made a suicidal gesture, he would have done so (Exh 11, 35:9-19).

4

d. RPD Sergeant David Evans

5

Sgt. Evans refused to ag ree with his subordin ates Robertson and A shton that they have

6 “discretion” to decide what suicide gestures and threats are legitimate and what are not. He testified that

7 when an officer h ears someone intends to kill him or he rself, the officer must report it (E xh 12, 28:24-

8 29:3). Evans would not advise officers under his c ontrol to disregard a detainee ’s threat of suicide (E xh

9 12, 29:25-30:15). Protecting people from self-harm is a custom and practice of the Reno P olice

10 Department (Exh 12, 41:13-20). A ccording to Evans, had he been th e transporting of ficer who heard

11 Clustka say she wanted to kill herself, he would have told the jail staff – that would be an important fact

12 to relate (Exh 12, 47:14-18; 48:6-8).

13

4. Robertson and Ashton Admit They KNEW Policy, Cu stom, and Practice

Mandated Them to Report a Detainee’s Suicide Threats 14

Ashton – simultaneously insisting he did the right thing – admitted he knew that supervisors want 15

to know if a person bein g transported has said anyt hing about harming his or he rself (Exh 8, 61:10-11). 16

He knew that suicide attempts should be rep orted and officers do not have disc retion to ignore such 17

conduct (Exh 8, 75: 15-20). A shton admitted that reporting a suicide attempt is an important aspect of a 18

police officer’s purpose because it is helping people in need (Exh 8, 75:21-76:8). 19

Robertson similarly testified that, if he believes a prisoner may harm his or herself, he has a duty 20

to alert others (E xh 9, 117:23-25). While it is RP D policy to notify a second offi cer of the means of the 21

attempted harm, to notify a supervisor and to complete a written form, Robertson admitted he did “none 22

of those things” (E xh 9, 119:17-24) . According to RPD policy and Ro bertson’s training, a threat of 23

suicide must be reported at least to a supervisor (Exh 9, 133:1-19). 24

5. Municipal Liability Is Based on City’s Failure to Train its Officers on their

25

Obligation to Report Suicide Gestures and Threats

26

It is well-documented that suicide is the leading cause of death in U.S . jails (Exh 19). Clustka

27 was the second inmate in 30 days to commit suicide at the Washoe County jail (Exh 20) and the fifth of

28 six to die by suicide there between January 2004 and August 2005 (Exh 21, pp. 3-4). All witnesses in this

11

Case 3:05-cv-00595-HDM-RAM Document 53 Filed 09/25/06 Page 12 of 29

1 case testified unambiguously that transporting officers have a duty to protect persons at risk of suicide and

2 a corresponding duty to report suicide attempts and threats by persons in their custody. Yet, the evidence

3 is that City of Reno failed to train its officers on suicide prevention or what constitutes a “suicide attempt”

4 or a “suicide threat.” Deputy Chief Johns – a self-described policymaker – tes tified he doesn’t know if

5 RPD has a written policy on the reporting of suicide threats (Exh 11 , 40:25-41:9). To J ohns’ awareness,

6 RPD has no suicide prevention policy (Exh 11, 41:13-15).

7

Sgt. Evans, Robertson and Ashton’s supervisor, similarly testified he is not aware of any training

8 given to RPD officers on how to distinguish when a person makes a serious suicide attempt or threat (Exh

9 12, 26:3-9). Additionally, he is unaware of any training on suic ide prevention at RPD and has no

10 recollection of any such training in the last ten years (Exh 12, 36:17-37:25). He has no recollection of ever

11 receiving any suicide prevention training while at RPD (Exh 12, 38:3-14).

12

Robertson similarly testified he received no training on dealing with potentially suicidal prisoners

13 (Exh 9, 98:2-4). The only training Robertson received was on handling the m entally ill, amounting to 15

14 to 20 minutes, and he could not recall when he received this training in his 17-year career (Exh 9, 113:16-

15 114:7). He has no recollection of anyone who trained him on how to identify potentially suicidal prisoners

16 (Exh 9, 124:1-8). Like R obertson, Ashton testified that, while he thought he ought to have been trained,

17 he has no recollection of being trained by anyone wh ile at RPD on what is or is not a genuine suicide

18 attempt or how to deal with potentially suicidal prisoners (Exh 8, 32:12-15 & 62:13-18).

19

6. Knowing Robertson Was a D eficient Officer and Without Remedi al

Training, City Made Him Responsible to Transport Persons in Custody and

20

to Mentor New Officer Ashton

21

(Please see Supplemental Opposition, filed under seal pursuant to protective order, Dkt 37.)

22

F. Had Clustka Been Sent to an Appropriat e Medical Facility, She Would Have Been

23

Thoroughly Examined by Psychiatric Professionals

24

1. Had Robertson and Ashton Reported Clustka’s Suicidal Attempt and Threats, Several Options Were Available to Protect Her

25

Singletary explained the critical importance of communicating suicide threats and attempts to jail

26 staff: First, the more informati on given to j ail medical staff about potential suicide risk the better job

27 medical staff can do to avert suicide (Exh 7, 14:11-15); second, if officers who transport a detainee to jail

28 and see a suicidal gesture or hear a s uicidal threat and do not inform jail staff – that omission can affect

12

Case 3:05-cv-00595-HDM-RAM Document 53 Filed 09/25/06 Page 13 of 29

1 the kind of care the per son receives (Exh 7, 14:16-25; 15:1-3 ); third, the majority of all suicide victims

2 communicate an intent to commit suicide prior to doing it (Exh 7, 20:21-25; 21:1-7 ); fourth – and m ost

3 important – it is jail policy to refuse admittance of suicidal persons and to direct deputies to send such

4 persons to hospitals (Exh 7, 47:1-8; 48:3-12). Jail staff and P HS nurses can request th at someone, even

5 someone in civil protective custody, be taken to a hospital fo r a Legal 2000 if they suspect the person is

6 suicidal (Exh 7, 51:14-25). Accordingly, had Robertson and As hton reported Clustka’s suicide

7 gesture and threats, ample precedent exists for refusing Clustka at the jail and taking her directly

8 to a medical facility.

9

Washoe County Sheriff’s Department Lt. Perry similarly testified that, had CPC jail staff known

10 of Clustka’s suicide attempt and threats, several options w ere available to protect her: First, despi te

11 Clustka’s intoxication, Officers Robertson and Ashton could have applied for a Legal 2000 and taken her

12 directly to a hospital (Exh 13, 65:3-9). Second, had the correctional deputies or staff known of her suicide

13 attempt and threats, they could have placed her on a Legal 2000, the jail could have kept her under suicide

14 watch, and a jail psychiat rist would have exam ined her, certainly a mental health professional (Exh 13,

15 83:11-84:3). Third, on releasing Clustka from CPC, the jail could have sent her to the hospital on a Legal

16 2000 (Exh 13, 56:3-24). In ot her words, when a person “sobers up ” and drops below the standard for

17 holding him or her in CPC, correctional staff are free to commence a Legal 2000 and send the person to a

18 hospital to address the risk of suicide (Exh 13, 62:10-16). Any of those options could ha ve resulted in a

19 successful intervention.

20

2. Had Clustka Been Taken to an “Appr opriate Medical Facility” She Would

Not Have Been Released Until Psychiatric Professionals Determined Her to

21

Be No Longer a Danger to Herself

22

a. Dr. Gansert Testified to the Care Clustka Would Have Received

23

WMC emergency physician, Dr. Guy Gansert testified that generally, the police do take a person

24 who has t hreatened suicide to t he emergency department (Exh 14, 5:16-20). At WMC, both suicide

25 attempts and suicide threats are taken very seriously (Exh 14, 12:21-13:2). Upon arrival at the emergency

26 department, the person is assessed for risk of suicide (Exh 14, 5:21-23). Emergency staff does a thorough

27 medical screen - they take the person’s history, they ask a battery of questions, and they find out why the

28 person was brought into the emergency room (Exh 14, 5:24-6:10).

13

Case 3:05-cv-00595-HDM-RAM Document 53 Filed 09/25/06 Page 14 of 29

1

An “alert team” assists the emergency physician in evaluating the person for suicide risk, w ho

2 carefully records all the information obtained (E xh 14, 7:5-14). Af ter the em ergency team finishes its

3 evaluation, if the te am feels the patient needs to be placed under a Le gal 2000, the patient will be

4 transferred to a psychiatric f acility, generally NMHI (Exh 14, 7:24-8:4; 8:9-20). On average, persons a t

5 risk of suicide are held six to eight hours at WMC before transfer to NMHI (Exh 14, 22:24-23:6).

6

Based on Dr. Gansert’s 17 years experience m aking referrals to NMHI, he believes they do a

7 “thorough job evaluating patients at risk of suicide” (Exh 14, 8: 16-20, 9:10-13). T hey would give

8 “appropriate intervention” to Brenda Clustka or pe rsons at risk of suicide (Exh 14, 14-18). Dr. G ansert 9 personally evaluated and transferred Clustka to NMHI on the 25 th of April and was satisf ied that he did

10 the best thing for her as he was “confident that she would ge t good care” th ere (Exh 14, 9:19-25). Had

11 Clustka been returned to the emergency care department on April 26 after her repeat suicide attempt, Dr.

12 Gansert would have thoroughly evaluated her for risk of suicide (Exh 14, 18:6-12 ), and, if he believed

13 that she was at risk of suicide, he would have “no hesitancy” to transfer her to NMHI (Exh 14, 10:1-6).

14

According to state statute, a patient may be kept agains t their will for up to 72 hours without a

15 court order if medical professionals deem it necessary to protect them from self harm (Exh 14, 10:7-14).

16 If a patient has medical issues or needs detoxification, the patient is kept at WMC until the medical issues

17 are resolved or the patient is no longer intoxicated, and if that patient is still at risk of suicide, then it’s

18 appropriate to transfer the patient to NMHI (Exh 14, 12:9-19).

19

b. Psychiatrist Dr. Caplan Testified to the T reatment Clustka Would

Have Received at NMHI to Protect Her from Suicide 20

21

NMHI provides mental health services for persons at risk of suicide (Exh 15, 5:10-13). It provides

22 full service for persons wi th mental illness and suicid e issues (Exh 15, 5:18-20). Patients are admitted to

23 NMHI after a thorough assessment, complete with evaluations by social workers and nurses in addition to

24 a psychiatrist. (Exh 15, 7: 18-8:21). Also, when a patient is brought in f or suicide risk, Dr. Ca plan,

25 NMHI’s psychiatrist, personally does a psychiatric evaluation as an integr al part of the suicide

26 assessment, then diagnoses the patient (Exh 15, 10:7-21). Dr. Caplan testified he has a “duty t o examine

27 thoroughly and diagnose a person who is brought in for being a suicide risk (Exh 15, 10:18-21).

28

The social worker completes a “Locus Adult Assessment” as part of the determination of what

care is needed fo r the patient (E xh 15, 11:2-12: 1). In addition, the nurse does an individualized

14

Case 3:05-cv-00595-HDM-RAM Document 53 Filed 09/25/06 Page 15 of 29

1 treatment plan for a person identified at risk of su icide (Exh 15, 12:6-9). The treatment plan identifies

2 goals, interventions and conditions for discharge (Exh 15, 12:10-18). Careful progress notes are kept (Exh

3 15, 13:13-16). As part of th e treatment plan for someone who comes in for risk of suicide, NMHI keeps

4 the patient on observation, at leas t every 15 minutes, which observations are carefully recorded (E xh 15,

5 12:19-13:12). In sum, NMHI takes a wide array of ap proaches to protect a person from suicide (Exh 15,

6 14:4-6). Dr. Caplan testified to how it is important to pay attention to when someone makes a suicide

7 gesture (Exh 15, 14:7-9). It is important to get someone who makes a suicide gesture to medical or mental

8 health help, frequently both (Exh 15, 14:16-15:2).

9

NMHI does not discharge a person who it believes remains a suicide risk (Exh 15, 15:9-12). If

10 NMHI believes a person is at risk of suicide, it can keep that pe rson up to 72 ho urs to protect him or her

11 prior to petitioning the Court (Exh 15, 15:16-19). If NMHI be lieves the person continues to be at risk of

12 suicide after the 72 hours expires, there are options for keeping the person longer by petitioning the court

13 and obtaining a court order (Exh 15, 15:24-16:2). Based on a single court order, NMHI can keep a patient

14 up to six months if it is believed that person continues to be a suicide risk (Exh 15, 16:4-8 ). Even at six

15 months, it’s not a forced discharg e because NMHI can petition another court order (E xh 15, 16:4-11).

16 NMHI has the option to keep that person indefinitely until it is believed th at the person is no longer at

17 significant risk of suicide (Exh 15, 16:14-18).

18

According to Dr. Caplan , “most people” who are suicidal want to be saved (Exh 15, 20:12-16).

19 For the vast majority of people who make suicide attempts, there is an opportunity to do intervention to

20 protect the person from suicide (Exh 15, 21:21-25). In those cases m ost suicides can be prevented by

21 appropriate and caring intervention (Exh 15, 22:4-7).

22

The fact that Clustka “improved rapidly while receiving appropriate intervention and care on the

23 25th” of April, was a sign of a person w ho would want to be saved (E xh 15, 20:17-21:1). Had she been

24 returned to NMHI b ased on a seco nd suicide incident in two days, she would have been thoroughly

25 evaluated for risk of suicide (Exh 15, 24:19-23). The fact of her intoxication would have set off an “alarm

26 bell” indicating to Dr. Caplan that she was at high risk of suicide (Exh 15, 25:4-9). The fact of her Xanax

27 abuse, which was also documented the day before, would also have set off an alarm bell (Exh 15, 25:10-

28 13). The fact that sh e had a documented history of suicide attempts would set off additional alarm bells

(Exh 15, 25:19-24). Finally, the fact that she had been adm itted to NMHI just one day before and kept
15

Case 3:05-cv-00595-HDM-RAM Document 53 Filed 09/25/06 Page 16 of 29

1 overnight on s uicide observation, would have set off “very serious alarm bells that this woman was a t

2 high risk of suicide” (Exh 15, 25:19-24). D r. Caplan testified that “it would have been critical to get

3 Brenda Clustka to mental health care had she made a repeat suicide threat and attempt on April 4 26th (Exh 15:29:4-7).

5

Had Robertson and Ashton reported Clustka’s suicidal conduct to jail staff or taken her directly to

6 a medical facility on April 26 th, at the very least she would have had another psychiatric evaluation,

7 another whole multi-disciplinary admission assessment, and another whole mental health examination.

8 Had Brenda Clustka been returned to NMHI on A pril 26, many professionals, a social worker, a nurse

9 and Dr. Caplan, a psychiatrist, would have given her appropriate treatment for suicide risk and worked to

10 protect her f rom suicide (Exh 15, 27:19- 28:3). A nurse would have don e a who le treatment plan, she

11 would have been kept overnight an d observed very carefull y and nurses an d social workers would have

12 interacted with her to remove suicidal thoughts and to address her psychological/psychiatric issues (Exh

13 15, 25:25-26:10). A “whole safety net of precautions” would have protected Clustka from suicide had she 14 been returned to NMHI on April 26th (Exh 15, 27:24-28:1).

15 III. 16

DEFENDANTS ROBERTSON AND ASHT ON EXHIBITED DE LIBERATE INDIFFERENCE TO CLUSTKA’S SAFETY BY FAILING TO TAKE REASONABLE MEASURES IN RESPONSE TO HER KNOWN RISK OF SUICIDE

17

The tragedy of this cas e is that Clustka made her condition known in no uncertain term s to the

18 officers who transported her to jail. She tried to kill herself in their presence and made threats of future

19 harm. Rather than report her suicidal conduct on the way to ja il, Robertson and Asht on chose to keep

20 mum with the predictable result that the jail would not take extra precautions to protect her,

21

Clustka was a pretrial detainee when she committed suicide. The Fourteenth Amendment, rather

22 than the Eighth Amendment, applies to pretrial detainees, but as a pretrial detainee Clustka, was entitled

23 to the same protections against deliberate indifference to her basi c needs as ar e available to convicted

24 prisoners under the Eighth Amendment. Cavalieri v. Shepard, 321 F.3d 616, 620 (7 th Cir. 2003). Under

25 both the Eighth and Fourteenth Amendments, a plaintiff has the burden of showing that (1) the harm t o

26 the plaintiff was objectively serious; and (2) that the official was deliberately indifferent to her health or

27 safety. Farmer v. Br ennan, 511 U.S. 825, 833 (1994). “A detainee establishes a § 1983 claim by

28 demonstrating that the defend ants were aware of a sub stantial risk of serious injury to the detainee but

16

Case 3:05-cv-00595-HDM-RAM Document 53 Filed 09/25/06 Page 17 of 29

1 nevertheless failed to take appropriate steps to protec t [her] from a known danger.” Payne v. Churchich, 2 161 F.3d 1030, 1041 (7th Cir. 1998); see also Gibson v. County of Washoe, 290 F.3d 1175, 1194 (9th Cir.

3 2002). “The very notion of delibera te ‘indifference’ connotes a re gime where neglec t of detainees’

4 medical and psychological needs proves a constitutional violation.” Cabrales v. County of L.A., 864 F.2d 5 1454, 1461 (9th Cir. 1988), vacated, 490 U.S. 1087 (1989), and reinstated, 886 F.2d 235 (9th Cir. 1989).

6

A. Plaintiff Easily Meets Al l the Elements of a Four teenth Amendment Claim for

Deliberate Indifference to Suicide Risk 7

8

Several circuits have de veloped a framework for courts to fo llow when anal yzing such cl aims.

9 While there are variations in how the tests are framed, they incorporate the same elements. For example,

10 The Third Circuit requires a plaintiff in a jail suicide case to establish the following elements:

(1) the detainee had a “particu lar vulnerability to suicide,” (2 ) the custodial officer or

11

officers knew or should have known of that vuln erability, and (3) thos e officers “acted

12

with reckless indifference” to the detainee’s particular vulnerability.

13 Colburn, 946 F.3d at 1023 (quoted with approval in Woloszyn v. County of Lawrence, 396 F.3d 314, 319 14 (3rd Cir. 2005)).5 The Eleventh Circuit sets forth a similar test:

15

To establish a defendant’s deliberate indifference, the plaintiff ha s to show th at the defendant had (1) subjec tive knowledge of a risk of serious harm [and] (2) disregarded. .

16

.that risk; (3) by conduct that is more than mere negligence.

17 Cook ex rel. Estate of Tessier v. Sheriff of Monr oe County, Fla., 402 F.3d 1092, 1115 (11 th Cir. 2005)

18 (quoted with approval in Snow v. City of Citronelle, Ala., 420 F.3d 1262, 1268 (11 th Cir. 2005)). Finally,

19 the Eighth Circuit uses slightly different language to articulate the same test:

20

To prevail on her deli berate indifference claim, [the plaintiff] must show: (1) appellants

knew [the decedent] pres ented a substantial su icide risk; and (2) appellants failed to

21

respond reasonably to that risk. Coleman v. Parkman, 349 F.3d 534, 538 (8th Cir. 2003).

22

1. Clustka’s Suicide Attempt on the Way to Jail Demonstrated a Sub stantial

Risk of Serious Harm to the Officers Who Witnessed It

23

Clustka demonstrated her “particular vulnerability to suicide” with her suicidal gesture and threats

24

on the way to jail. R obertson and Ashton knew Clustka was at substantial risk of serious harm because

25

26 5 In Woloszyn, the appellate court upheld the lower court’s dismissal of the case based on the fact
27 that the officers had no knowledge of the decedent’s risk of suicide. There was no evidence on record in

28

that case that the decedent had a particular vulnerabilit y to suicide. He did no t attempt suicide in the presence of any offi cers, and he did not t hreaten suicide. Woloszyn, 396 F3d at 321-22. This case is

distinguished from Woloszyn, because Officer s Robertson and As hton had knowledge of Clustka’ s

suicide gesture and threats.

17

Case 3:05-cv-00595-HDM-RAM Document 53 Filed 09/25/06 Page 18 of 29

1 they personally witnessed it. Despite both the attempt and threats, Robertson a nd Ashton decided to not

2 do an incident report and decided to not report the inform ation to jail staff. Their conduct is the extreme

3 epitome of deliberate indifference.

4

Reviewing the lower court’s grant of summary judgment in Snow, the Eleventh Circuit found an

5 issue of fact over deliberate indifference where an officer who supervised the detainee’s detention in the

6 holding area of the ja il and w ent off shift without placing the detainee on suicide watch or reporting

7 information he had learned suggesting that the detainee had suicidal tendencies. Specifically, the officer

8 had learned from a previous jailor that, “sometime in the last month,” the detainee tr ied to cut her wrist

9 while in custody and given a lo t of trouble. The o fficer further told the detainee’s family that he thought

10 she might be suicidal but did not share his belief with jail staff. After the officer went off shift – with no

11 suicide watch in place – the detainee hung herself. Snow, 420 F.3d at 1270.

12

Similarly, in the instant case, there was a strong risk that Clustka would attempt suicide at the jail

13 given her suicide attempt on the way to jail.6 Officers Robertson and Ashton had two options available to

14 them at that point in time: One, they could have taken Clustka directly to the hospital on a Legal 2000,

15 where emergency room staff would have kept her until she was no longer in toxicated, and, after

16 performing a thorough assessm ent and if she remained suicidal, would have transferred her to a m ental

17 health hospital to for psychiatric assessment and treatment. She would have been kept in the mental health

18 hospital until psychiatric prof essionals would have deemed her no long er a threat to he rself. Two, they

19 could have taken her to the jail and reported her suic ide attempt and threats to jail staff. The jail would

20 then have had several alternatives available to protect Clustka from self-harm. It could have refused her at

21 the door based suicide risk and sent her to the hospital on a L egal 2000. It could have flagged her as a

22 potential suicide risk, placed her on suicide watch, and given her m edical and mental health treatment

23 until she was determined to no longer be at risk of self harm. Finally, three, the jail could have kept her in

24

25

6 The defendants assert that Ms. Clustka was at low risk of harming herself “at the time she was

in the c ustody of Rober tson and As hton. This i s not tr ue. The evidence shows that, the day before,

26 Clustka was taken to WMC on a Legal 2000 f or threatening to kill herself and transferred to NMHI for

overnight observation and treatment. She was released approximately five hours before Robertson and 27 Ashton encountered her. During the five hours be tween Clustka’s release from the Legal 2000 and her

28

encounter with Off icers Robertson and A shton, her condition deteriorated to the point the officers determined that a civil protective custody was necessary. Furthermore, the officers admit that their own

conduct – in lying to Clustka that the y were taking her home to retrieve her belongings when they were

really taking her to jail – precipitated Clustka’s suicide attempt and threats in the paddy wagon.

18

Case 3:05-cv-00595-HDM-RAM Document 53 Filed 09/25/06 Page 19 of 29

1 civil protective custody on suicide watch with evaluation by a mental health professional until she was no

2 longer intoxicated, then send her to the hospital on a Legal 2000.

3

In Cavalieri, the detainee who later committed suicide said he was fine when the officer spoke

4 with him over the phone and was calm when interviewed. However, the Sevent h Circuit found a triable

5 issue over whether the officer was aware that the detainee presented a suicide risk where the plaintiff’s

6 facts indicated that the mother and girlfriend had told the officer that the detainee threatened suicide if

7 taken to jail. Calvalieri, 321 F.3d at 621. Because the officer failed to pass the warnings of a suicide risk

8 to jail authorities, the appellate court affirmed the lower court’s denial of qualified immunity to th e

9 officer. This too would be a different case had Robertson and Ashton not personally witnessed Clustka’s

10 suicidal threats and ge stures. They cannot legitimately deny awareness of her su icide risk and their

11 requirement to respond in reasonable fashion by alerting jail authorities.

12

2. Once on Notice that Clustka Was at Risk for Suicide, Officers Robertson and

Ashton Were Required at the Very Least to Report It to Jail Authorities 13

Once an official k nows of a detainee’s suicide risk, the Fo urteenth Amendment requires the 14

official to take reasonable measures to abate the risk. E.g., Coleman, 349 F.3d at 538. Because Robertson 15

and Ashton failed in their duty to report Clustka’s suicide attempt, jail authorities who dealt with her were 16

not alerted to the need to address her su icide threats. They did not know to refuse he r in civil protective 17

custody and send her directly to the hospital for suicide assessment and treatment. 18

Based on the facts as pr esented, and the testim ony of the of ficers themselves, there can be no 19

doubt that these officers made a deliberate decision to do nothing to protect Clustka from making good on 20

her suicide threats. They did not take her to the hospital on a Legal 2000, they did not tell the jail booking 21

authorities of her suicide attempt, and th ey did write an incident report on h er suicide attempt. Jail 22

officials were deprived of the ability to conduct necessary suicide assessment and referral. 23

B. At Best, Defendants Show a “Question of Fact” 24

Defendants assert that plaintiff cannot show deliberate indifference because the officers “thought 25

that Clustka was just acting out because she was drunk” (Def. Br. p. 7:11-12). However, this is a question 26

for a factfinder to determine on review of the evidence to be developed in this case. It cannot be resolved 27

via a motion for summary judgment where there are specific facts indicating the defendants’ awareness of 28

both a suicide attempt and a suicide threat while on route to the jail. According to Thomas A. Rosazza,

19

Case 3:05-cv-00595-HDM-RAM Document 53 Filed 09/25/06 Page 20 of 29

1 expert witness in custodial care, any testimony that suicide statements by an intoxicated person are not to

2 be taken seriously “is call ous, contrary to industry precepts, and contrary to RPD practices regarding the

3 care, custody and protection of potentially suicidal persons (Exh 18, 4).

4

In Snow, Officer Chennault – like the de fendants in this case – main tained he did not personally

5 view the detainee as a su icide risk. Chennault testif ied that, had he regarded her as a sui cide risk, he

6 would have taken actions to prot ect her f rom harming herself. Snow, 420 F.3d at 1270. Given the

7 plaintiff’s facts that a prior jailer had told Chennault about the detainee’s earl ier suicide attempt and he

8 discussed with family members his belief that s he was a suicide risk, the c ourt recognized that the

9 officer’s subjective belief was a matter of dispute, an issue properly addressed at trial.

10

In Coleman, during a p re-arrest investigation, interviewees told the of ficer that the detainee

11 needed mental help, had been doing “crazy things,” was at risk of harming himself or others, and would

12 kill himself if jailed. Coleman, 349 F.3d at 536, 539. After receiving this information, the officer testified,

13 he concluded that the deta inee was not at ris k of suicide an d said nothing to jail of ficials about the

14 warnings he had received. Lacking notice of the de tainee’s suicide risk, the ja il placed the intoxicated

15 detainee in a “ drunk tank” containing the usual prison items, including a bed sheet, and – like Clustka –

16 the detainee used the sheet to hang himself. Id. On review, the Eighth C ircuit found that, taking the facts

17 in the light most favorable to the plaintiff, they support an inference that the officers actu ally knew the

18 detainee presented a substantial suicide risk. Id. at 539. The court em phasized that these issues of

19 credibility cannot be resolved in summary proceedings but rather require trial. Id.

20

Similarly, in Cavalieri v. Shepard, the defendant officer asserted he did not believe the detainee

21 was at risk of suicide in justification of his failure to tell jail officials about warnings he had been given.

22 Lacking notice of a need to take suicide precautions, the jail put the detainee in a holding cell that had a

23 telephone where he hung himself using the telephone cord. Cavalieri, 321 F.3d at 620. The court found

24 that the officer was responsible to pass information including suicide risks to the jail facility, that it would

25 have been an easy thing for him to do. Id. at 622- 623 (citing Farmer, 511 U.S. at 831 and Viero v.

26 Bufano, 901 F. Supp. 1387, 1394 (N .D. Ill. 1995) (adequ ate measures include communicating likely

27 suicide risk to transferee correctional facility) (emphasis added)).

28

Just so, the instant case raises issues that cannot be resolved in summary proceedings. See also,

Estate of Olivas v. City and County of Denver, 929 F. Supp. 1329, 1336 (D .Col. 1996) (finding the
20

Case 3:05-cv-00595-HDM-RAM Document 53 Filed 09/25/06 Page 21 of 29

1 question whether a suicide threat presented a “specific risk” that the detainee would kill himself or that the

2 defendant was deliberately indifferent when he assumed the contrary was a jury question). According to

3 the facts as presented, Officers Robertso n and Ashton could not have mistaken the seriousness of

4 Clustka’s suicide attempt and threats.

5

C. Nevada’s Legal 2000 Law Specifically Provides for the Involuntary Commitment of

Mentally Ill Persons Who Are Intoxicated 6

7

For purposes of in voluntary commitment, NRS § 433A.115 defines a “m entally ill person” as a

8 person who presents a

clear and present danger of harm to himself or others, but does not include any person in

9

whom that capacity is diminished by. . . intoxication. . ., unless a mental illness that can be

10

diagnosed is also present which contributes to the diminished capacity of the person.

11 One way a person demonstrates a clear and present dangers of harm is if, “as a result of mental illness,”

12 the person has “attempted to or threatened to commit suicide or committed acts in furtherance of a threat

13 to commit suicide” and ther e exists a reasonable possibility the person will do so unless admitted to a

14 mental health facility. NRS § 433A.115(2)(b) (Exh 10; Exh 24).

15

Thus, if a person is mentally ill and attempts or threatens suicide – there is no dispute that Clustka

16 was mentally ill or that Robertson and Ashton were notified that Clustka was mentally ill – a Legal 2000

17 involuntary commitment is a ppropriate, no matter if the person is a lso intoxicated. Expert witness

18 Rosazza, concluded that, under the circumstances presented a Legal 2000 would have been appropriate:

19

Had Officers Robertson and Ashton reported Ms Clutska’s actions and statements to CPC personnel such inform ation would have been im portant to CPC per sonnel whether to

20

accept her at the facility, reject her for medical and/or psychiatric referral, or accept her

and assess whether or not she should be committed for a “Legal 2000” (Exh 18, 4).

21 He further concluded:

22 Officers Ashton and R obertson had sufficien t justification to ex ercise a Legal 2000

23

commitment for Ms. C lutska given her attem pted suicide, her threats of suicide, her

belligerence, their knowledge that she was mentally ill, and her being distraught. Had such

24

been done her current suicide attempt and threats would have been add ressed by

25

competent mental health professionals (Exh 18, 4-5).

26

D. It Is Cl assic Deliberate Indifference Where Poli ce Officers Witness a Det ainee Attempt to Kill Herself, Fail to Respond Reasonably and Decide to Not Report It

27

It is cl assic deliberate indifference where police officers witness a detainee attemp ting to kill

28 herself as well as hear a suicid e threat and determine to warn no one and do nothing about it. See Snow,

21

Case 3:05-cv-00595-HDM-RAM Document 53 Filed 09/25/06 Page 22 of 29

1 420 F.3d at 1270. Although the hurdle of showing deliberate indifference is a “high hurdle for a plaintiff,”

2 the plaintiff “need not show that a prison official acted or failed to act believing that harm actually would

3 befall an inmate; it is enough that the official acted or failed to act despite his knowledge of a substantial

4 risk of serious harm.” Cavalieri, 321 F.3d at 622 (quoting Farmer, 511 U.S. at 842). Thus, plaintiff is not

5 required to show that Robertson and Ashton actually believed Clustka would succeed in killing herself in

6 jail. It is suffi cient to establish deliberate indifference if plaintiff can l ater prove that they failed to act

7 despite their know ledge of Clustka’s suicide attempt and thre ats on her way to jail . Acts of om ission,

8 namely Robertson and A shton’s failure to report their knowledge of Clustka’s conduct, constitutes “the

9 predicate for a finding of liability” on their part. Cabrales, 864 F.2d at 1461 (finding that an omission in 10 the form of medical understaffing at the jail directly contributed to the decedent’s suicide).7

11

Viewing plaintiff’s facts in t he light most favorable to her – as t his Court must do – the Court

12 must deny defendants’ summ ary judgment motion on t he question of deliberate indifference. Given

13 defendants’ knowledge of Clustka’s suicide attempt and her threat to kill herself if taken to jail, there is no

14 way this Court could find that plai ntiff can prove no set of facts to support a finding of deliberate 15 indifference on defendants’ part. See Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999).

16 IV. 17

A FAIR READING OF PLAINTIFF’ S FACTS SHOWS THAT DEFENDANTS’ DELIBERATE INDIFFERENCE PROXIMA TELY CAUSED THE D EPRIVATION OF CLUSTKA’S EIGHTH AMENDMENT RIGHT

18

A. Plaintiff Shows an Issue of Fact over Causation Because Robertson and Ashton Set

19

in Motion the Constitutional Deprivation

20

Section 1983 imposes liability upon those who “subject[] or cause[] to be subjected, any citizen of

21 the United States. . .to the deprivation of any rights, privileges, or immunities secured by the Constitution

22 and laws. . . .” 42 U .S.C. § 1983. This includes the setti ng in motion a series of acts by others which the

23 actor knows or reasonably should know would cause others to inflict the constitutional injury. Springer v. 24 Seaman, 821 F.2d 871, 879 (1st Cir. 1987 (quoting Soto v. City of Sacramento, 567 F. Supp. 662, 673-74 25 (E.D. Cal. 1983) and Johnson v. Duffy, 588 F2d 740, 743-44 (9th Cir. 1978) (emphasis added)).

26

27

7 The defendants argue that Officers Robertson and Asht on took appropriate steps to protect

28

Clustka. To the contrary, the officers admit that that they did nothing to report Clustka’s suicide attempt and threats. They further admit that it is their duty according to Reno Police Department policy to report

all suicide attempts and threats.

22

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1

Defendants assert in th eir motion for summ ary judgment that pl aintiffs cannot show a “causal

2 connection” between Clustka’s suicide attempt and threats on the way to jail and her suic ide in jail less

3 than 48 hours later. They assert that, even if defendants Robertson and Ashton had reported Clustka’s

4 suicide attempt and threat, the jail would have done noth ing different and would not have prevented her

5 from killing herself on being rearrested. Defendants are wrong. Causation is very much present and the

6 brief period of Clustka’s release is not an intervening event that breaks the causal chain.

7

Plaintiff has set forth in great detail exactly what Robertson and Ashton did and failed to do and

8 the harm that resulted. Had Robertson and Ashton transported Clustka to the hospital emergency room on

9 a Legal 2000 af ter she both attempted and threatened suicide in the paddy wa gon, she would have been

10 carefully watched and thoroughly assessed and transferred to a m ental health hospital where she would

11 have been kept as long as was needed. Had Robertson and Ashton informed jail authorities of Clustka’s

12 suicide attempt and threats, the jail would have had the option of refusing her at the door and sending her

13 directly to the h ospital for detoxification, suicide assessment, and lik ely transferred to a me ntal health

14 hospital for furt her suicide assessment and treatment. Finally, the jail could have kept Clustka on ci vil

15 protective custody – addresse d her suicide is sues then and there – and, on releasing her at the end of

16 detoxification, sent her to the hospital on a L egal 2000. As a result of Robertson and Ashton’s deliberate

17 decision to keep mum, Clustka was deprived of these several avenues of protection.

18

The officers’ failure to report Clustka’s paddy wagon suicide attempt had natural and foreseeable

19 consequences. Had defendants not f ailed to r eport Clustka’s suicide attempt to ja il staff, according to

20 Singletary and Lt. Perry, Clustka would have either been rejected at th e door and sent to the hospital for

21 suicide assessment ant treatment or she would have been immediately placed on suicide watch, with the

22 result that on release f rom CPC, she would have been sent to the hospital on a Legal 200 0 if deemed by

23 jail medical professionals to remain at risk of killing herself. Clustk a would have been red-flagged as a

24 potential suicide risk. Her mental health history would have been flagged and carefully scrutinized, which

25 would have further aler ted jail staff to her histor y of suicide attempts and the need to protect her f rom

26 killing herself. Jail personnel would have seen how she had been prev iously placed on suicide watch due

27 to suicidal ideation. Jail staff would have made inquiries and discovered that only a day before, she was

28 on a suicide hold at the local hospital. Even without the benefit of further research – simply given notice

23

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1 of Clustka’s suicide attempt on the way to jail – jail staff would have known to monitor her and to address

2 her suicide issues before releasing her.

3

Robertson and Ashton set in m otion the constitutional deprivation when they failed to report

4 Clustka’s known vulner ability to suicide. They were responsible for t he fact that the jail did not

5 implement suicide precautions or send her to the ho spital on a Legal 2000. T heir conduct led to the

6 constitutional deprivation that resulted in Clustka’s death. But for their failure to report Clustka’s suicide

7 attempt, jail authorities would have set in motion standard procedures to protect her from killing herself.

8 Accordingly, Robertson and Ashton’s failure to repo rt the suicide attempt was at least one of the actual 9 causes of Clustka’s ultimate injury. See White v. Roper, 901 F.2d 1 501, 1505 (9th Cir. 1990) (citing W. 10 Prosser and W. Keeton, The Law of Torts § 41, at 266 (5th ed. 1984)).

11

B. Nor Does the Sho rt Time of R elease Constitute a Supercedin g Intervening Cause

That Would Relieve Officers Robertson and Ashton from Liability 12

13

“Once it is es tablished that the defendant’s conduct has in fa ct been one of the caus es of th e

14 plaintiff’s injury, there remains the question whether the defendant should be legally responsible for the

15 injury.” Id. (quoting Prosser & Keeton, § 42, at 2 72-73). This question is generally ref erred to as one of

16 proximate cause. The evidence is that Robertson and Ashton transported Clustka to jail on April 26, 2005,

17 she remained there until that night, when she was released w ith no place to go. The next m orning, April

18 27, 2006, she returned to her mother’s home in another misguided attempt to retrieve her belongings and

19 again was arrested. The jail did not know on April 26, 2006, to refuse Clustka at the door and send

20 her to th e hospital on a Legal 2000 or even to pla ce her on suicide watch because Robertson and

21 Ashton had failed to notify anyone the day earlier of her suicide attempt and threats. Lacking that critical

22 information – the jail me dical staff cert ainly did not know to place her on suicide w atch the next day

23 when she was arrested again.

24

The question for the Court to determine is what was “reasonably foreseeable” to the officers at the

25 time they delivered Clustka to jail without informing jail personnel of her suicide attempt. “The courts are

26 quite generally agreed th at [foreseeable] intervening causes. . .will not s upersede the de fendant’s

27 responsibility.” Id. (quoting Prosser & Keeton, § 44, at 303-04). Courts look to the or iginal foreseeable

28 risk that the defendants created. Id. (citations omitted).

24

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1

In White, a § 1983 case allegi ng deliberate indifference to the plai ntiff’s safety, t he plaintiff

2 inmate alleged that the defendant sergeant caused him to be injured by assigning him to share a cell with a

3 known violent cellmate. Rather than enter the cell, the plaintif f ran and was beaten by ja il guards. The

4 court found that the plaintiff’s running constituted an intervening cause of his injury at the hands of third

5 parties, but that his running was a foreseeable consequence of the sergeant’s assigning him to room with a

6 known dangerous cellmate. The inmate had two alternatives: either enter the cell and risk being injured by

7 the cellmate or run away and risk being injured by the jail guards. Since his running was a foreseeable

8 consequence of the order that he enter the cell with a known violent cellmate, the intervening act of his

9 running did not break the change of causation. Overturning summary judgment on the plaintiff’s claim of

10 deliberate indifference against the sergeant, the court concluded that there was a genuine issue of fact over

11 actual and proximate cause.

12

Similarly in the in stant case, Robertson and Ashton set in m otion a seri es of ev ents that

13 foreseeably ended in Clustka’s successful jail suicide. Clustka’s suicide was a foreseeable consequence of

14 failing to inf orm jail authorities of Clustka’s suicid e attempt. Her d eath was cau sed by jail authorities

15 failing to take suicide pr ecautions that they would have otherwise taken. Th e fact th at Clustka was

16 released and rearrested within a matter of hours does nothing to change the calculus. It was reasonably

17 foreseeable that Clustka would be released without the jail’s doing anything to protect her from self-harm.

18 It was likewise reasonably foreseeable that – in the absence of professional in tervention to address her

19 suicidal ideation – sh e would find herself back in jail, given th e TPO, given C lustka’s unmet need to

20 retrieve her belongings from her mother’s home, and given her extremely distraught condition.

21

The release and near immediate rearrest cannot be viewed as an intervening cause of Clustka’s jail

22 suicide because Clustka would likely not have been released into the streets had the jail been put on notice

23 of her suicide attempt. She would have been kept under suicide watch at jail, or they would have sent her

24 to the hospital on a Legal 2000.

25

The fact that, when Clustka was rearrested, no protections were in place to protect her from killing

26 herself is what enabled her to succeed in killing herself. No protections were in place because Robinson

27 and Ashton did not alert jail authorities to h er recent suicide attempt. In other words, the chain of

28 causation leads back to R obertson and Ashton. The intervening event of Clustka’s short release from jail

played no superceding role in the events that unfolded as a result of their misconduct.
25

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1

A “defendant will not be relieved of liabilit y by an in tervening cause that was reasonably

2 foreseeable, even if the in tervening force m ay have ‘dir ectly’ caused t he harm. An ‘unforeseen and

3 abnormal’ intervention on th e other hand, ‘breaks the chain of causality,’ thus sh ielding the defendant 4 from liability.” Gutierrez-Rodriguez v. Soto, 882 F.2d 553, 561 (1 st Cir. 1989). Th ere was nothing

5 “unforeseen” or “abnormal” in the fact that Clustka was released from jail and rearrested within a day. It

6 was as foreseeable as the fact that she would later kill herself in ja il if not protected from self-harm. For

7 these reasons, plaintiff’s allegations are well sufficient to support causation, both actual and proximate.

8 V. QUALIFIED IMMUNITY IS N OT AVAILABLE TO DEFENDANTS ROBERTSON

AND ASHTON 9

10

Qualified immunity shields an officer from suit when the officer makes a decision that, even if

11 constitutionally deficient, reasonably misapprehends the law governing the circumstances he confronted.

12 Brosseau v. Haugen, 543 U.S. 194, 599 (2005) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). The

13 focus is on whether the o fficer had fair notice his conduct was unlawful. Acco rdingly, reasonableness is

14 judged against the backdrop of the law at the time of the conduct. Id. “The contours of the right must be

15 sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Id.

16 (quoting Saucier, 533 U.S. at 201-02). Courts take a two-step approach to resolving this question. First

17 the court must determine whether Robertson and Ashton viol ated the plaintiffs’ constitutional rights.

18 Saucier, 533 U.S. at 201-02. If the answer is in the affirmative, the an alysis proceeds to d etermine

19 whether that right was clearly established at the time.

A. Robertson and Ashton Viol ated Clustka’s Right to Be Free of Deliberate

20

Indifference to a Demonstrated Risk of Suicide

21

For all the reasons previously addressed, Reno defendants Robertson and Ashton violated Brenda

22 Clustka’s right to be free of deliberate indifference to her known risk of harm.

23

B. The Law Protecting Pretrial Detainees from Deliberate Indifference to Suicide Risk

24

Is Well-Established

25

The second prong of the tw o-step qualified immunity inquiry asks whethe r it would have been

26 clear to a reaso nable officer that his alleged co nduct was unlawful. See Saucier, 533 U.S. at 202. T he

27 conduct of Robertson and Ashton at the tim e they observed Brenda Clustka attempt to choke herself in

28 the paddy wagon and heard her threaten suicide and took no steps to protect her is what is at issue in this

case. Accordingly, the law at that time is the guide. Id.
26

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1

The law of deliberate indifference in the context of jail suicides is well-established. Several courts,

2 including the Ninth Circuit, have made clear that at the time of the incidents alleged, Clustka had a clearly

3 established constitutional right to be free from an officer’s deliberate indifference to her potential suicide.

4 Cavalieri, 321 F.3d at 623; Cabrales, 864 F.2d 1454 (jail suicide case de cided in 1988). “A particular

5 vulnerability to suicide represents a serious medical need.” Colburn v. Upper Darby Township, 946 F.3d 6 1017, 1023 (3rd Cir. 1991).

7 VI. 8

CITY OF RENO MAY BE H ELD LIABLE FOR THE WRON GS DONE TO CLUSTKA BASED ON FAILURE TO TRAIN, CUSTOM AND POLICY

9

Municipalities are “persons” under 42 U.S.C. § 1983 and thus th ey may be liable for causing a

10 constitutional deprivation. Monell v. Department of Social Services, 436 U.S. 658, 690 (1978). A

11 municipality may be sued when exec ution of a governm ental policy or custom inflicts the injury. Id. A

12 policy is “a deliberate choice to follow a course of action. . .made from among various alternatives by the

13 official or officials responsible for establishing final policy with respect to the subject matter in question.” Fairley v. L uman, 281 F.3d 913, 918 (9 th Cir. 2002) (per curi am). “A policy can be one of action or
14 inaction.” Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). To impose liability against
15

16 a municipality for its failure to act, a plaintiff must show: (1) that a city employee violated the plaintiff’s

17 constitutional rights; (2) that the city has customs or policies that am ount to deliberate indifference; and

18 (3) that these customs or policies were the moving force behind the employee’s violation of constitutional rights. Id. (citing Gibson v. County of Washoe, 290 F.3d 1175, 1193-94 (9th Cir. 2002).
19

20

For all th e reasons addressed in the preceding portion s of this brief, Robertson and Ashton

21 violated Brenda Clustka’s right to be free of deliberate indifference to a demonstrated risk of suicide.

A. Failing to Train 22

23

“A municipality’s failure to train an employee who has caused a constitutional violation can be

24 the basis for § 1983 liability where the failure to train amounts to deli berate indifference to the rights of

25 persons with whom the employee comes into contact.” Long, 442 F.3d at 1186. A plaintiff might succeed

26 in proving a failure to train claim where “a violation of federal ri ghts may be a highly predictable

27 consequence of a f ailure to equ ip law enforcement officers with specific tools to handle recurring

28 situations.” Id.

27

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1

It is a w ell-known, well-documented fact that su icide is the number one cause of death in U.S.

2 jails. All the witnesses who testified acknowledged the importance of an officers ’ obligation to protect

3 persons at risk of suicide. Nonetheless, RPD fails to offer any suicide prevention training to its off icers.

4 None of the witnesses who testified could recall any specific policies at RPD on suicide prevention or any

5 training on how to r ecognize when a per son is custody is suicidal and what action to take to protect that

6 person. Robertson testifie d that, in his 17-y ear career with RPD he r eceived maybe 15 to 20 m inutes

7 training on mental illness.

8

B. Failing to Implement Policies

9

The Ninth Circuit “consistently has found that a [m unicipality]’s lack of affi rmative policies or

10 procedures to guide em ployees can amount to deliberate indifference, even when the [ municipality] has

11 other general policies in place.” Long, 442 F.3d at 1189. The Ninth Circuit explained:

12

In Gibson, a mentally ill detainee died while in the custod y of the count y jail. T he

decedent’s wife sued the county, alleging that it had acted with deli berate indifference to

13

her husband’s mental illness. The district court granted summary judgment in favor of the

14

county. On appeal, this court reversed and remanded, finding that the county’s policy –

which precluded a m edical evaluation for an incom ing detainee who was uncooperative,

15

combative, or intoxicated – failed adequately to instruct the nurse on duty how to act

upon medical information, including information from prescription medications, which

16

she obtained from the detainee. The court held that a jury could find that the omission was

17

sufficiently likely to result in the violation of the detainee’s right to medical care that the county was deliberately indifferent to those needs. Id. (citing Gibson, 290 F.3d at 1195).

18

19

Similarly, state law on Legal 2000 is extremely protective of persons at risk of suicide and City of

20 Reno witnesses all testified their strong duty to p rotect persons to m ake suicide attempts and threats.

21 However, as all RPD witnesses te stified RPD has no policies addre ssing suicide prevention and has not

22 trained its officers on their duty how to act when handling potentially suicidal persons.

23

C. Charging the Known Deficient Robertson with Responsibility to Protect the Public

24

Another way to establish municipal liability is to show how City was aware of similar misconduct

25 in the past, but failed to take reasonable precautions against future violations, and that this failure, at least 26 in part, led to the injury. Bielevicz v. Bubinon, 915 F.2d 845, 851 (3 rd Cir. 1990). City knew well Officer

27 Robertson’s deficiencies in judg ment, knowledge of law s, policy and procedure, reporting, and other

28 violations referenced in docum ents filed under seal herewith. City h ad an obligation to take remedial

measures to correct his bl atant errors in ju dgment. Instead of m eeting its obligation, City did nothing.
28

Case 3:05-cv-00595-HDM-RAM Document 53 Filed 09/25/06 Page 29 of 29

1 Robinson was never suspended, never had his pay docked, and was never required to attend additional

2 training. “Tolerance of unconstitutional conduct is tantam ount to encouragement of such conduct and is

3 there fore a basis for municipal liability.” Skiby v. City of New York, 109 F.R.D. 58, 65 (E.D.N.Y. 1985).

4 City knowingly let Robinson “slip through the cracks” over his seventeen-year career and placed him in a

5 position involving high interaction with the public and exercise of discretion transporting people to the jail

6 while mentoring a new officer. RP D’s knowing f ailure to rein in this deficient officer created

7 constitutional time bomb and Clustka, at high risk of suicide, was its predictable victim.

8

D. Failing to Discipline Robertson and Ashton for Violations of Policy

9

The Ninth Circuit has held that post-event eviden ce is admissible for pr oving the existence of a

10 municipal defendant’s policy or custom and may be highly probative of that inquiry. Henry v. County of 11 Shasta, 132 F.3d 512, 520 (9th Cir. 1997). It is undisp uted that both Robertson and Ashton were found to

12 have violated RPD policies and procedures in their failure to report Clustka’s suicide attempt and threats.

13 It is similarly undisputed that neither officer received any discipline for this extraordinary violation. City’s

14 worse than inadequate response to these officers known violations gives a strong message: So far as City

15 is concerned, that what happened to Clustka as a result of the officers’ indifference just didn’t matter.

16 VII. CONCLUSION

17

For reasons stated, plaintiffs ask this Court to deny defendants’ motion for summary judgment.

18

Dated this 25th day of September 2006.

19

/s/ Diane K. Vaillancourt

20

TERRI KEYSER-COOPER DIANE K. VAILLANCOURT

21

22

23

24

25

26

27

28

29

 </s> Case 3:05-cv-00595-HDM-RAM Document 58 Filed 10/13/06 Page 1 of 9

1 PATRICIA A. LYNCH Reno City Attorney
2 JACK D. CAMPBELL Nevada State Bar No. 4938
3 Post Office Box 1900 4 Reno, Nevada 89505
Telephone: (775) 334-2050 5 Facsimile: (775) 334-2420
Attorneys for Defendants 6 City of Reno, Robertson & Ashton

7

8

UNITED STATES DISTRICT COURT

9

DISTRICT OF NEVADA

10
11 CHARLA CONN, administrator of the ESTATE OF BRENDA JEAN CLUSTKA,
12 CHARLA CONN, and DUSTIN CONN

Case No. CV-N-05-0595-HDM-VPC

13

Plaintiffs,

14 vs.
15 CITY OF RENO, RPD OFFICER RYAN
16 ASHTON, RPD OFFICER DAVID 17 ROBERTSON,

18

Defendants.

___________________________________/

19

20

REPLY TO PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

21
22
23 A:
24

I
DISCUSSION
There is no evidence that Clustka’s actions in the prisoner transport were suicide threats or attempts.

25

1. It is undisputed that Clustka was intoxicated with a blood alcohol level of 0.10%.

26 It is further undisputed that Clustka admitted to also taking Xanax, which is a benziodiazipine

27 type medication that acts as a central nervous system depressant, just like alcohol. Plaintiffs’

28

Reno City Attorney P.O. Box 1900 Reno, NV 89505
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Case 3:05-cv-00595-HDM-RAM Document 58 Filed 10/13/06 Page 2 of 9

1 own expert and Clustka’s treating psychiatrist, Dr. Jeffrey Caplan, testified that Xanax

2 intoxication mirrors alcohol intoxication with slurred speech, impaired motor function, and the

3 appearance of a “drunken state.” Attached as EXHIBIT “A” and incorporated herein by

4 reference are relevant portions of Dr. Caplan’s August 7, 2006 deposition transcript. Please see

5 pages 37 – 40.

6

Alcohol and Xanax intoxication can also cause an impairment of cognitive function, a

7 decrease of inhibitions, and judgment impairment. A person experiencing alcohol and Xanax

8 intoxication can say things that they really don’t mean to say and threaten to do things that they

9 have no intention of doing. EXHIBIT “A”, pgs. 83-85.

10

Dr. Caplan testified that when a person under the influence of alcohol and Xanax makes a

11 threat of killing themselves, such statement must be analyzed by looking at all of the

circumstances surrounding the comment to see if it is just the alcohol talking. EXHIBIT “A”, 12

pg. 83. Dr. Caplan also stated that the effects of the drugs and alcohol have such a profound 13

effect, the only way to determine if the person is sincerely suicidal is to get the person off the 14

effects of the drugs and alcohol so that a proper mental assessment can be done. EXHIBIT “A”, 15
pg. 83, 85. 16
2. Officers Robertson and Ashton are the only two witnesses who saw and 17
experience Clustka’s actions before, during, and after the alleged threats. Both Officer 18
Robertson and Ashton described Clustka’s action as those of a belligerent, angry, intoxicated 19
person, and not sincere threats or attempts to harm herself. Officer Ashton described the incident 20
as Clustka just trying to get the officers’ attention. She had been walking around in the transport 21
vehicle, screaming at the officers, and knocking on the video surveillance camera during the 22
entire trip to the jail. His observations and experiences lead him to believe that because Clustka
23 was not successful in causing the officers to stop the transport, she wrapped the seatbelt around
24 her neck in a further attempt to get their attention. Relevant excerpts of Officer Ashton’s May 8,
25 2006 deposition transcript are attached as EXHIBIT “B” and incorporated herein by reference.

26 Please see pgs. 19-20, 31, 33.

27

28

Reno City Attorney P.O. Box 1900 Reno, NV 89505
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Case 3:05-cv-00595-HDM-RAM Document 58 Filed 10/13/06 Page 3 of 9

1

Officer Robertson also stated that his observations lead him to believe that she was not

2 trying to harm herself. He also saw Clustka walking around in the back of the transport vehicle

3 to approach the front of the transport and place her fingers back and forth over the camera

4 monitor. Officer Robertson then responded to Officer Ashton’s warning that she looked like she

5 had wrapped the seat belt around her neck. When he entered the back of the transport, Clustka

6 only had the belt “lapped” around her neck. Consequently, Officer Robertson did not believe

7 that Clustka was trying to harm herself. His belief was that Clustka was merely acting out in

8 anger and trying to manipulate the situation because she was not getting her way. Relevant

9 excerpts of Officer Robertson’s May 8, 2006 deposition transcript are attached as EXHIBIT “C”

10 and incorporated herein by reference. Please see pgs. 42, 44-45, 49-50.

11

3. There is no evidence that Clustka actually tried to harm herself. The officers’

descriptions indicate that Clustka was screaming at them as soon as they entered the back of the 12

transport. EXHIBIT “C”, pg. 45. This evidence proves that Clustka had not choked herself with 13

the seatbelt. If she had, she would not have had the breath to scream at the officers. 14

Furthermore, there is no evidence that she wrapped the belt around her throat tight enough to 15
restrict her airway. No officer or jail staff noted that Clustka was gagging, coughing, or 16
complaining of a sore throat. And, no marks, abrasions, or bruises were noted by any officer, 17
jail deputy, or jail medical staff. 18
4. It is undisputed that Clustka made no attempt to harm herself while she was being 19
held on the Civil Protective Custody. In addition, it is undisputed that she did not try to harm 20
herself after she was released from the protective custody approximately 6 hours later. Since she 21
was unsupervised following her release, if she truly had wanted to harm herself, she had ample 22
opportunity to do so. The fact that she made no attempts to harm herself indicates that Officers
23 Robertson’s and Ashton’s interpretation of the events were accurate.
24 B. Clustka did not objectively appear suicidal.
25 The first prong of a deliberate indifference claim is to determine whether Clustka

26 demonstrated “an objectively serious medical need or a deprivation of that need” which “must be

27 either obvious to a layperson or supported by medical evidence, like a physician’s diagnosis.”

28

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Case 3:05-cv-00595-HDM-RAM Document 58 Filed 10/13/06 Page 4 of 9

1 Aswegan v. Henry, 49 F.3d 461, 464 (8th Cir. 1995).

2

Here, Clustka had been interviewed, examined, and/or treated by at least 6 different

3 medical professionals, including psychiatrists, doctors, nurses, and social workers during the 72

4 hours prior to her suicide. None of these medical professionals identified Clustka a being

5 suicidal or at a high risk of self harm. If they had, each is qualified to have placed Clustka on an

6 Emergency Admission or “Legal 2000” in accordance with NRS 433A, 150, et seq. None did

7 so.

8

1. A copy of Northern Nevada Adult Mental Health Institute (“NNAMHI”) records

9 for Clustka’s April 25, 2005 admission are attached as EXHIBIT “D” and incorporated herein by

10 reference. At approximately 4:00 p.m. on April 25, 2005, Clustka was admitted into NNAMHI

11 for evaluation of a suicide threat made to her family during a domestic dispute early that same

morning. She was observed by the Institute’s medical staff during the night, and at 12

approximately 9:30 a.m. on April 26, 2005, Clustka was found to be a low risk of harm and 13

discharged. EXHIBIT “D”, p. 6 (COR-00948). Clustka was released from the hospital a mere 5 14

hours prior to her encounter with Officers Robertson and Ashton. 15
2. Prior to Officers Robertson’s and Ashton’s arrival on scene, REMSA had 16
responded to an emergency call for “man down” report. A copy of REMSA’S records for the 17
April 26, 2006 call are attached as EXHIBIT “E” and incorporated herein by reference. The 18
ambulance records indicate that REMSA was dispatched to “report of a psychiatric problem.” 19
Clustka was examined by ambulance personnel who noted that Clustka admitted to having 2 20
drinks. REMSA personnel then “CPC’d” the patient “per CPC Decision Tree”. The ambulance 21
personnel then called emergency dispatch to request that RPD respond for a Civil Protective 22
Custody (“CPC”) transport. EXHIBIT “E”, p.2. REMSA’S referral of Clustka for CPC was the
23 call that precipitated Officers Robertson and Ashton encountering Clustka.
24 3. Following Robertson’s and Ashton’s transport of Clustka for CPC, she was
25 interviewed and examined by the jail medical staff. A person on CPC is given a standard

26 medical screening, which includes questions about suicide, at the time of the detainee’s

27 acceptance into the jail facility. The detainee is then monitored during the CPC, and when the

28

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Case 3:05-cv-00595-HDM-RAM Document 58 Filed 10/13/06 Page 5 of 9

1 detainee has sufficiently detoxified, the jail medical staff interviews the detainee prior to

2 releasing them. It is undisputed that Clustka was not identified to be a risk of suicide or self

3 harm during these three medical interviews. A copy of the Civil Protective Custody Initial

4 Assessment is attached as EXHIBIT “F” and incorporated herein by reference.

5

4. Clustka was released from her CPC at approximately 8:00 p.m. on April 26, 2005.

6 Shortly before midnight, Clustka’s mother called RPD back to her house because Clustka had

7 returned to the residence, was grossly intoxicated, and causing another disturbance. RPD

8 officers placed Clustka on another CPC and transported her back to the jail. It is undisputed that

9 Clustka was interviewed and examined by the jail medical staff and refused for CPC because her

10 BA was not over the legal limit.

11

5. Because Clustka appeared grossly intoxicated, the RPD officers did not release

Clustka, choosing instead to take her to the Washoe Medical Center Emergency Department for 12

examination. It is undisputed that Clustka was admitted to the Emergency Department and 13

examined by a doctor. It is also undisputed that she denied all suicidal thoughts or actions and 14

was discharged at approximately 3:00 a.m. on April 27, 2005. A copy of WMC Emergency 15
Room Report is attached as EXHIBIT “G” and incorporated herein by reference. 16
6. Following her discharge from Washoe Medical Center, Clustka returned to her 17
mother’s house and caused another disturbance. Shortly before noon, Clustka’s mother called 18
RPD to report that Clustka had returned to the residence in violation of the Temporary Protective 19
Order. Clustka was arrested and transported to the jail where she was given a thorough initial 20
medical screening, including mental health questionnaire, by a trained nurse. During this 21
screening, Clustka repeatedly denied being suicidal or having suicidal thoughts. A copy of 22
Prison Health Services intake records for April 27, 2006, is attached as EXHIBIT “H”, and
23 incorporated herein by reference.
24 None of these trained medical professionals identified that Clustka was suicidal. Most of
25 the examinations and interviews with the medical professionals occurred after Clustka’s

26 encounter with Officers Robertson and Ashton. There is no evidence that Clustka was exhibiting

27 objective signs or symptoms that she was suicidal either before or after her encounter with

28

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Case 3:05-cv-00595-HDM-RAM Document 58 Filed 10/13/06 Page 6 of 9

1 Officers Robertson and Ashton. Therefore, if Clustka’s medical need was not obvious to trained

2 medical professionals, this evidence clearly does not support a finding that those needs should

3 have been objectively obvious to Officers Robertson and Ashton, as laypersons. Id.

4 C. 5

It is undisputed that neither Officer Robertson or Officer Ashton drew the necessary “inference” that Clustka had medical or safety needs that were not being protected.

6

It is undisputed that both Officers Robertson and Ashton acknowledged that they were

7 required to report any suicide threats or attempts. Furthermore, it is undisputed that neither

8 officer believed that Clustka was sincere when she asked Robertson to kill her or when she

9 threatened to kill herself. It is undisputed that both officers felt that Clustka was just intoxicated

10 and acting out because she did not get her way. Therefore, if Clustka truly had medical or safety

11 needs when she was in Officer Robertson’s and Ashton’s custody, neither officer recognized it.

12 Otherwise, they would have reported it in accordance with their admitted duty. Without this

13 subjective knowledge or the “drawing of the inference”, there can be no deliberate indifference.

14 Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994).

15 D. Officers Robertson’s and Ashton’s treatment of Clustka properly addressed her medical and safety needs.
16 Dr. Caplan testified that at the time of her discharge from Northern Nevada Adult Mental
17 Health Hospital, Clustka was diagnosed with alcohol and benzodiazepine dependence. Dr.
18 Caplan testified that Clustka’s medical and safety needs were to be kept away from the drugs and
19 alcohol that she was abusing. EXHIBIT “A”, p.106, 108-109. He also testified that since
20 Clustka had a BA of 0.10% when Officers Robertson and Ashton took her into CPC, Clustka
21 could not be returned to the mental health hospital until she was detoxified below the legal limit.
22 EXHIBIT “A”, p.150, 155. Dr. Caplan also testified that detoxing Clustka at the CPC facility at
23 the jail would be a proper way to address this need. EXHIBIT “A”, p.150, 152, 156-157.
24 Consequently, when Robertson and Ashton took Clustka to jail, she was separated from her
25 drugs and alcohol, and she was being detoxified. In accordance with Dr. Caplan’s testimony, not
26 only did Officers Robertson and Ashton properly recognize her medical needs, they provided
27 Clustka with the care and treatment she needed.
28

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Case 3:05-cv-00595-HDM-RAM Document 58 Filed 10/13/06 Page 7 of 9

1

II

2

CONCLUSION

3

The first element that must be proven by Plaintiffs is that Clustka’s constitutional rights

4 were violated by the defendants. Without this proof, all of Plaintiffs’ claims and allegations

5 must be dismissed. Here, because Clustka was a pre-trial detainee, Plaintiffs’ must show that

6 Clustka had objectively obvious medical needs that Defendants failed to take reasonable

7 measures to guarantee her safety. Farmer v. Brennan, 511 U.S. 825 (1994).

8

The undisputed evidence in this case leads directly to the conclusion that at the time

9 Clustka was in the Defendants’ custody, her medical and safety needs were recognized and

10 properly protected. Clustka’s medical condition necessitated being separated from the drugs and

11 alcohol she was abusing. When Defendants placed Clustka on CPC, they were putting her into

the custody that would accomplish this goal. Clustka could not ingest anymore drugs or alcohol 12

while she was in the jail’s custody. In addition, it is undisputed that while on CPC, Clustka 13

would be under the supervision and care of the Prison Health Services nurses. Consequently, if 14

Clustka had any acute medical needs, Defendants reasonably believed those would be addressed 15
by the jail’s medical staff. 16
The standard of care at issue is not negligence. Id. at 835. Consequently, even if the 17
detoxification that Clustka received from the jail staff was not appropriate, if the Defendants 18
acted reasonably in obtaining this treatment, liability cannot lie in this deliberate indifference 19
claim. Id. at 837. But, since Clustka’s own doctor, Dr. Caplan, testified that supervised 20
detoxification at the jail would be appropriate to treat Clustka on April 26, 2005, Defendants are 21
due summary judgment as a matter of law to all claims because they did not violate Clustka’s 22
constitutional rights. Not only did Defendants recognize Clustka’s medical needs and take
23 reasonable steps to provide for her safety, Defendants’ actions provided Clustka with the
24 supervised detoxification Clustka’s own doctor deemed appropriate.
25 Therefore, Defendants CITY OF RENO, OFFICER RYAN ASHTON AND OFFICER

26 DAVID ROBERTSON, respectfully move this Court for an order granting summary judgment in

27 ///

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Reno City Attorney P.O. Box 1900 Reno, NV 89505
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Case 3:05-cv-00595-HDM-RAM Document 58 Filed 10/13/06 Page 8 of 9

1 favor of the Defendants to all claims.

2

RESPECTFULLY SUBMITTED.

3

Dated this 13th day of October, 2006.

4

PATRICIA A. LYNCH

Reno City Attorney 5

6

By:

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/s/ Jack D. Campbell JACK D. CAMPBELL DEPUTY CITY ATTORNEY P.O. Box 1900 Reno, NV 89505 (775) 334-2050 Attorney for Defendants

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Reno City Attorney P.O. Box 1900 Reno, NV 89505
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Case 3:05-cv-00595-HDM-RAM Document 58 Filed 10/13/06 Page 9 of 9

1

CERTIFICATE OF SERVICE

2

Pursuant to *NRCP 5(b), I certify that I am an em ployee of the RENO CITY

3 ATTORNEY'S OFFICE, and that on this date, I am serving the foregoing document(s) on

4 the party(s) set forth below by:

5

Placing an origin al or true copy th ereof in a sealed env elope placed for

6

collection and mailing in the United States Mail, at Reno, Nevada, postage

7

prepaid, following ordinary business practices.

8

Personal delivery.

9 X.

CM/ECF electronic service

10

Facsimile (FAX).

11 Federal Express or other overnight delivery.
12 Reno/Carson Messenger Service.
13

14 addressed as follows:

15 Terri Keyser-Cooper

Law Office of Terri Keyser-Cooper

16

100 N. Arlington Avenue, #10F

17

Reno, Nevada 89501

Diane K. Vaillancourt Law Office of Diane K. Vaillancourt 849 Almar Avenue, Suite C403 Santa Cruz, California 95060

18

19

DATED this 13th day of October, 2006.

20

21
22 An
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/s/ Tamme Sutton Tamme Sutton
Employee of the Reno City Attorney

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Reno City Attorney P.O. Box 1900 Reno, NV 89505
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 </s> Case 3:05-cv-00595-HDM-RAM Document 62 Filed 03/08/07 Page 1 of 19

1

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9

UNITED STATES DISTRICT COURT

10

DISTRICT OF NEVADA

11

12 CHARLA CONN, et al.,

)

3:05-cv-00595-HDM-RAM

)

13

Plaintiffs,

)

)

ORDER

14 vs.

)

)

15 CITY OF RENO, et al.,

)

)

16

Defendants.

)

_________________________________ )

17

Before the court is the defendants’ motion for summary

18

judgment (#49). Plaintiffs have opposed (#53), and defendants have

19

replied (#58).

20

Plaintiffs Charla and Dustin Conn bring this action against

21

the City of Reno and its officers Ryan Ashton and David Robertson

22

pursuant to 42 U.S.C. § 1983 for the alleged violation of the

23

constitutional rights of their mother, Brenda Clustka.1

24

25

1 Charla Conn appears both individually and on behalf of

26 Clustka’s estate.

1

Case 3:05-cv-00595-HDM-RAM Document 62 Filed 03/08/07 Page 2 of 19

Plaintiffs’ claims stem from Clustka’s April 28, 2005, suicide

while a pretrial detainee in Washoe County Jail (“WCJ”) and are

1 based on the individual defendants’ interaction with Clustka on

2 April 26, 2005.

3

On March 19, 2005, Reno Police Department (“RPD”) officers,

4 among them defendant Ashton, arrested Clustka for misdemeanor

5 domestic battery after a dispute she had with her mother at their

6 shared residence. Clustka was booked into WCJ. The next day she

7 was placed on suicide watch for about 4 hours after making comments

8 about “not being able to make it in jail.” (Pl. Mot.,2 Exs. 4-6;

9 Def. Mot. at 3). Clustka remained at WCJ for more than a month,

10 during which time her mother applied for and received a temporary

11 protective order (“TPO”) that required Clustka to stay away from

12 her house and be accompanied by RPD when retrieving her belongings.

13 (Def. Mot. at 3). Clustka was released from WCJ on April 22.

14 (Id.)

15

On April 25, Clustka and her mother had a verbal altercation

16 when she told her mother she would overdose on her anxiety

17 medication. Her mother called 911 at 8 a.m. and reported that

18 Clustka had threatened to kill herself. (Def. Mot. at 3). RPD

19 officers responded and took Clustka to Washoe Medical Center

20 (“WMC”) to be evaluated for an involuntary commitment to a mental

21 health facility. She was admitted to the emergency department of

22 the hospital at about 9:30 a.m. She was examined by WMC staff, and

23

24

2 Pl. Mot. refers to plaintiff’s motion for partial summary

25 judgment, submitted on November 3, 2005, which is not before the

26 court.

2

Case 3:05-cv-00595-HDM-RAM Document 62 Filed 03/08/07 Page 3 of 19

she denied to the staff that she had ever made any suicide threats

or attempts. Clustka was then transferred to Northern Nevada

1 Mental Health Institute (“NNMHI”) on a Legal 2000 commitment.3

2 (Id. Ex. B). She arrived at NNMHI at around 4:30 p.m. NNMHI staff

3 held her overnight and released her around 9:30 a.m. on April 26

4 after determining she was a “low risk of harm.” (Id. Ex. C). Upon

5 her release, Clustka was given back the anxiety medication on which

6 she had threatened to overdose the day before. (Id.)

7

At around 2 p.m. that same day, Regional Emergency Medical

8 Services Authority (“REMSA”) responded to a 911 call from a

9 motorist reporting that a woman (Clustka) was passed out on a

10 sidewalk. Finding Clustka intoxicated, REMSA called RPD to take

11 her into Civil Protective Custody4 (“CPC”). (Def. Mot. at 4; Pl.

12 Opp’n Ex. 6). Defendants Ashton and Robertson responded. (Pl.

13 Opp’n Ex. 6). They found Clustka intoxicated, and described her as

14 having red, watery eyes, slurred speech, and difficulty walking.

15 (Pl. Opp’n Ex. 8 (Ashton Dep. at 10:21-11:2; 22:5-8)). A

16 preliminary breath test registered her blood alcohol level at .10%.

17

18

3 Legal 2000 is an emergency admission procedure whereby mentally

19 ill people deemed to be a danger to themselves or others may be

20 involuntarily committed to a mental health facility for up to 72

21 hours. See Nev. Rev. Stat. §§ 433A.115, 433A.150 et seq.

22

4 Under Nev. Rev. Stat. § 458.270, a person found in a public

23 place intoxicated and unable to care for herself must be taken to

24 either an alcohol abuse facility or a city or county jail for shelter

25 and supervision until she is no longer under the influence of alcohol.

26

3

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(Id. Ex. 6). When the officers told Clustka they were taking her

in for a CPC, she became belligerent, refused to get in the police

1 vehicle, and, apparently aware of the outstanding TPO, demanded

2 that she be taken to her mother’s house to retrieve her belongings.

3 (Id. Ex. 8 (Ashton Dep. at 21:19-22:11); id. Ex. 9 (Robertson Dep.

4 at 38:17-19; 38:20-23)). Although the officers intended to take

5 Clustka to WCJ, Robertson, in an attempt to diffuse the situation,

6 told her they would take her home. (Id. Ex. 9 (Robertson Dep. at

7 39:4-17)). Clustka then calmed down; the officers helped her into

8 the vehicle and fastened her seat belt, but they did not handcuff

9 her. (Id. Ex. 5 (Ashton Int. at 4:12-13)). As they were preparing

10 to leave for WCJ, the wants and warrants report received by Ashton

11 revealed that Clustka had a history of violence, substance abuse,

12 and mental illness. It also reflected the outstanding TPO, but the

13 officers declined to serve it on Clustka because of her level of

14 intoxication. (Id. Ex. 6 at 2).

15

On the way to WCJ, Clustka unfastened her seat belt and began

16 walking around the vehicle and knocking on the surveillance camera.

17 (Pl. Opp’n Ex. 5 (Ashton Int. at 4:15-19)). Ashton asked whether

18 they should stop to put the seat belt back on, but Robertson said

19 they were almost to the jail. (Id. Ex. 6 at 2). When they stopped

20 at the railroad crossing near the jail, Clustka, who had been

21 looking out the window, sat down and lapped a seat belt around her

22 neck. Ashton believed Clustka engaged in this conduct once she

23 realized she was going to jail and not to her mother’s house. (Id.

24 Ex. 5 (Ashton Int. at 5:14-17); Pl. Opp’n at 8:11-14). Ashton

25 observed Clustka’s action through the surveillance camera and told

26 Robertson it appeared she was trying to “choke herself.” The

4

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officers got out of the vehicle and went to the back, where they

removed the seat belt from Clustka’s neck, placed flexible

1 handcuffs on her, and refastened her seat belt. (Pl. Opp’n Ex. 5

2 (Ashton Int. at 5:18-6:9); id. Ex. 6 at 2-3). As they were doing

3 so, Clustka screamed, “You lied to me. Just kill me. I’ll just

4 kill myself then.” (Id. Ex. 5 (Ashton Int. at 6:5-6); see also id.

5 Ex. 9 (Robertson Dep. at 45:11-21) (describing Clustka’s words as

6 “You lied to me, I want to die, kill me, you lied to me.”)).

7

After Clustka was secured, they continued on to WCJ, arriving

8 around 3 p.m. When the defendants opened the back of the police

9 vehicle, Clustka screamed again that she “wanted to die.” (Id.

10 (Robertson Dep. at 46:25-47:4). Unidentified WCJ deputies other

11 than the defendants removed Clustka from the vehicle, and while she

12 was in the intake area, Clustka screamed that the officers had beat

13 her. (Id. Ex. 5 (Ashton Int. at 6:15-16)). The officers told WCJ

14 deputies that Clustka was disoriented. They did not advise anyone

15 of the incident in the back of the police vehicle, nor did they

16 report it to their supervisor or write an incident report that day.

17 (Id. Ex. 5 (Ashton Int. at 7:10-8:8); id. Ex. 9 (Robertson Dep. at

18 46:11-24-48:4)). At WCJ, a Prison Health Services (“PHS”) nurse

19 gave Clustka a standard CPC evaluation, which meant checking

20 Clustka’s vital signs and general appearance. (See id. Ex. 7

21 (Singletary Dep. at 44:2-12)). The nurse did not note that Clustka

22 appeared to be a suicide risk. (Def. Reply Ex. F). Clustka was

23 held in CPC until about 8:30 p.m., at which time she was released

24 from the jail. Before she left the facility, she was served with

25 the TPO. (Def. Mot. at 7).

26

Despite the TPO, Clustka returned to her mother’s house. At

5

Case 3:05-cv-00595-HDM-RAM Document 62 Filed 03/08/07 Page 6 of 19

11:30 p.m., her mother called 911 to report that Clustka was

causing a disturbance. The RPD officers, not the defendants, who

1 responded noted that Clustka appeared grossly intoxicated, so they

2 took her back to WCJ for another CPC. As her blood alcohol was

3 below .08%, she was refused for CPC, but the officers then took her

4 to WMC, where she was readmitted for observation. (Def. Mot. at

5 7). WMC released Clustka around 3 a.m. on April 27 without sending

6 her on to NNMHI for a Legal 2000. The medical staff’s observations

7 noted that Clustka was alert and oriented, and that she was being

8 discharged because she didn’t want any treatment. (Def. Reply at

9 5; id. Ex. G).

10

At 2:30 p.m. on the same day, Clustka showed up grossly

11 intoxicated at her mother’s house in violation of the TPO. After

12 her mother called 911, Clustka was arrested by officers of the RPD,

13 not the defendants, and taken to WCJ. There, a nurse examined

14 Clustka, and although she denied being suicidal, Clustka did admit

15 she was taking anxiety medication. The nurse put her in a red

16 jumpsuit to indicate a high-risk inmate and placed her in the

17 mental health unit of the jail. (Def. Mot. at 8; Def. Reply Ex. H).

18

At 8 a.m. on April 28, Clustka was taken out of her cell for a

19 video arraignment on the TPO violation. As Clustka returned to her

20 cell at around 8:35 a.m. following the arraignment, she appeared

21 distraught and was crying. (Pl. Mot. Exs. 13-15). At about 9:17

22 a.m., WCJ officials found her hanging from her bed sheet,

23 unresponsive. (Id. Ex. 14). Deputies cut her down from the sheet

24 and administered life-saving measures without success. (Id. Ex.

25 15). She was pronounced dead at 9:55 a.m. (Id.)

26

Summary judgment “shall be rendered forthwith if the

6

Case 3:05-cv-00595-HDM-RAM Document 62 Filed 03/08/07 Page 7 of 19

pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any, show that there is

1 no genuine issue as to any material fact and that the moving party

2 is entitled to judgment as a matter of law.” Fed. R. Civ. P.

3 56(c). The burden of demonstrating the absence of a genuine issue

4 of material fact lies with the moving party, and for this purpose,

5 the material lodged by the moving party must be viewed in the light

6 most favorable to the nonmoving party. Adickes v. S.H. Kress &

7 Co., 398 U.S. 144, 157 (1970); Martinez v. City of Los Angeles, 141

8 F.3d 1373, 1378 (9th Cir. 1998). A material issue of fact is one

9 that affects the outcome of the litigation and requires a trial to

10 resolve the differing versions of the truth. Lynn v. Sheet Metal

11 Workers Int’l Ass’n, 804 F.2d 1472, 1483 (9th Cir. 1986).

12

Once the moving party presents evidence that would call for

13 judgment as a matter of law at trial if left uncontroverted, the

14 respondent must show by specific facts the existence of a genuine

15 issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

16 250 (1986). “[T]here is no issue for trial unless there is

17 sufficient evidence favoring the nonmoving party for a jury to

18 return a verdict for that party. If the evidence is merely

19 colorable, or is not significantly probative, summary judgment may

20 be granted.” Id. at 249-50 (citations omitted). “A mere scintilla

21 of evidence will not do, for a jury is permitted to draw only those

22 inferences of which the evidence is reasonably susceptible; it may

23 not resort to speculation.” British Airways Bd. v. Boeing Co., 585

24 F.2d 946, 952 (9th Cir. 1978); see also Daubert v. Merrell Dow

25 Pharmaceuticals, Inc., 509 U.S. 579, 596 (1993) (“[I]n the event

26 the trial court concludes that the scintilla of evidence presented

7

Case 3:05-cv-00595-HDM-RAM Document 62 Filed 03/08/07 Page 8 of 19

supporting a position is insufficient to allow a reasonable juror

to conclude that the position more likely than not is true, the

1 court remains free . . . to grant summary judgment.”). Conclusory

2 allegations that are unsupported by factual data cannot defeat a

3 motion for summary judgment. Taylor v. List, 880 F.2d 1040, 1045

4 (9th Cir. 1989).

5 A. Liability of Individual Defendants

6

To prove a violation under § 1983, a plaintiff must establish

7 that the defendants (1) acting under color of law (2) deprived

8 plaintiff of the rights, privileges, or immunities secured by the

9 Constitution or the laws of the United States. Gibson v. U.S., 781

10 F.2d 1334, 1338 (9th Cir. 1986). There is no dispute here that

11 defendants were acting under the color of law.

12

Plaintiffs allege that defendants Ashton and Robertson were

13 deliberately indifferent to Clustka’s serious medical need –

14 specifically, a particular vulnerability to suicide. See Payne v.

15 Churchich, 161 F.3d 1030, 1041 (7th Cir. 1998); Est. of Abdollahi

16 v. County of Sacramento, 405 F. Supp. 2d 1194, 1203-04 (E.D. Cal.

17 2005). Plaintiffs maintain that Ashton and Robertson had a

18 constitutional obligation to protect Clustka once they realized she

19 was vulnerable, either by telling WCJ officials that Clustka had

20 wrapped the seat belt around her neck while in the police vehicle

21 or by taking her to the hospital for care on April 26.

22

Under the 8th Amendment, prison officials must take reasonable

23 measures to guarantee inmate safety, which includes addressing

24 serious physical and mental health needs. See Farmer v. Brennan,

25 511 U.S. 825, 833 (1994); Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th

26 Cir. 1982). Because Clustka was a pre-trial detainee, plaintiffs’

8

Case 3:05-cv-00595-HDM-RAM Document 62 Filed 03/08/07 Page 9 of 19

claims arise under the 14th Amendment Due Process Clause. See Bell

v. Wolfish, 441 U.S. 520, 535 n.16 (1979). However, because the

1 rights under both the 8th and the 14th Amendments are comparable,

2 the Ninth Circuit applies the same standards to both claims. Frost

3 v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998).

4

To state a claim under the 8th and 14th Amendments, plaintiffs

5 must show (1) an objectively, sufficiently serious deprivation; (2)

6 that the individual defendants were “deliberately indifferent” to

7 Clustka’s health and safety – that is, they must have had a

8 “sufficiently culpable state of mind,” see Farmer, 511 U.S. at 834;

9 Est. of Ford v. Ramirez-Palmer, 301 F.3d 1043, 1049 (9th Cir.

10 2002); and (3) harm caused by the indifference. See Jett v.

11 Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).

12

Plaintiffs argue that Clustka objectively required protection

13 because she was in fact at risk of suicide; for years, she had

14 struggled with depression and suicidal tendencies. (Pl. Opp’n Exs.

15 1-3). The issue before the court is whether Clustka posed an

16 objective risk of suicide.

17

Defendants argue that when they interacted with Clustka on

18 April 26, she was not objectively suicidal. In the days before her

19 suicide, Clustka was examined or evaluated by a number of different

20 medical and law enforcement personnel, and all of them either did

21 not determine she was a suicide risk or ultimately released her

22 after finding she was no longer at risk. First, Clustka was

23 admitted to NNMHI on April 25, 2005, and on admission was found to

24 be a high risk of harm. Upon release, however, she was rated a low

25 risk of harm, and the medications she had threatened to overdose on

26 were returned to her. Second, on April 26 the intake nurse who

9

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examined Clustka for the CPC initiated by Ashton and Robertson made

no determination that Clustka was a suicide risk. Further, Clustka

1 did not attempt to harm herself and made no suicide threats during

2 this custody. Third, WMC emergency staff who evaluated Clustka in

3 the early morning hours of April 27, after she was released from

4 CPC, did not note that she was a suicide risk, and they did not

5 send her to NNMHI for a Legal 2000. Finally, the intake nurses at

6 WCJ did not find that Clustka was a suicide risk and did not place

7 her on a Legal 2000 when she was arrested for violating the TPO on

8 April 27.

9

None of the medical personnel who examined or treated Clustka

10 at the time of her release from NNMHI on April 26, during her two

11 visits to WCJ on April 26, on her admission to WMC early April 27,

12 and then at WCJ on April 27 concluded that Clustka posed a risk of

13 suicide. While this evidence, that on the relevant dates the

14 health officials concluded that Clustka was not suicidal, suggests

15 that Clustka’s medical needs on April 28 were not objectively

16 serious enough to find a 14th Amendment violation, the court does

17 not need to decide the issue because the evidence is insufficient

18 to establish as a matter of law that the defendants were

19 deliberately indifferent to Clustka’s serious medical needs when

20 they failed to report the seat belt incident or that such failure

21 to report caused harm to Clustka.

22

A prison official is deliberately indifferent to a person’s

23 serious medical needs where he or she “knows of and disregards an

24 excessive risk to inmate safety.” Farmer, 511 U.S. at 837. The

25 defendants must both (1) be aware of facts from which the inference

26 could be drawn that a substantial risk of serious harm exists, and

10

Case 3:05-cv-00595-HDM-RAM Document 62 Filed 03/08/07 Page 11 of 19

(2) they must also draw the inference. Id.; Toguchi v. Chung, 391

F.3d 1051, 1057 (9th Cir. 2004). The plaintiff “need not show that

1 a prison official acted or failed to act believing that harm

2 actually would befall an inmate; it is enough that the official

3 acted or failed to act despite his knowledge of a substantial risk

4 of serious harm.” Farmer, 511 U.S. at 842.

5

It is no violation if the person should have been aware of the

6 risk, but was not. Toguchi, 391 F.3d at 1057; Jeffers v. Gomez,

7 267 F.3d 895, 914 (9th Cir. 2001). Because the defendant’s state

8 of mind is a question of fact, it can be demonstrated “in the usual

9 ways, including inference from circumstantial evidence.” Farmer,

10 511 U.S. at 842. Knowledge may be inferred if a risk was obvious.

11 Farmer, 511 U.S. at 842; McCoy v. Terhune, 2006 WL 2374753 at *3

12 (E.D. Cal. 2006); see also Gibson v. County of Washoe, Nevada, 290

13 F.3d 1175, 1197 (9th Cir. 2002) (noting that a plaintiff could show

14 that officers “must have known” of a risk of harm by showing the

15 obvious and extreme nature of a detainee’s abnormal behavior). An

16 obvious risk is one that a reasonable person would realize.

17 Farmer, 511 U.S. at 842. However, “obviousness per se will not

18 impart knowledge as a matter of law.” McCoy, 2006 WL 2374753 at

19 *3.

20

Defendants were aware of the following facts relevant to this

21 inquiry. First, Ashton knew that Clustka had a history of

22 violence, substance abuse, and mental problems – both from the

23 wants and warrants report and from his personal interaction with

24 her a month before. Second, both defendants noted that Clustka was

25 disoriented and intoxicated. Finally, defendants observed Clustka

26 wrap the seat belt around her neck and heard her state, “You lied

11

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to me. Just kill me. I’ll just kill myself then,” or words to

that effect.

1

Although the defendants’ state of mind is a question of fact,

2 the plaintiffs must present sufficient evidence to allow a trier of

3 fact to conclude that officers Ashton and Robertson believed that

4 Clustka was suicidal.5 Both officers testified that they believed

5 that Clustka was not trying to hurt herself in the police vehicle

6 when they transported her April 26. They reached this conclusion

7 because: (1) based on Clustka’s behavior, they believed that her

8 actions with the seat belt arose from anger and intoxication, and

9 that she was attempting to manipulate them and get their attention;

10 (2) they believed she could not have actually hurt herself because

11 the seat belt would have slackened once she tried, and she knew the

12 officers were watching her through the surveillance camera; and (3)

13 when they went to the back of the police vehicle, Clustka had

14 enough breath to scream at them, and there were no visible bruises

15 or marks on her neck where the seat belt had been held.6

16

17

5 Plaintiffs allege that the risk was obvious to the defendants

18 because they saw Clustka wrap the seat belt around her neck and heard

19 her scream that she wanted to die. But these facts alone do not

20 constitute an obvious risk, as reasonable people could come to

21 differing conclusions as to what Clustka intended by that conduct.

22

6 Robertson, in fact, says he would handle the situation exactly

23 the same if it were to happen again. (Pl. Opp’n Ex. 9 (Robertson Dep.

24 at 130:6-8; 133:20-25)). Ashton says that he still does not feel that

25 a Legal 2000 was appropriate for Clustka; however, if the same

26 situation were to recur today he would report it to his supervisor,

12

Case 3:05-cv-00595-HDM-RAM Document 62 Filed 03/08/07 Page 13 of 19

While the evidence suggests that the defendants’ failure to

report the seat belt incident was a violation of department policy,

1 such a violation of policy in this case does not create a

2 constitutional violation. See Case v. Kitsap County Sheriff’s

3 Dep’t, 249 F.3d 921, 929-30 (9th Cir. 2001) (citing cases from

4 several circuits finding that violations of internal policies do

5 not necessarily give rise to § 1983 liability). While the actions

6 of Officers Ashton and Robertson in failing to report the seat belt

7 incident may have been negligent conduct, such conduct does not

8 create a triable issue of fact sufficient to support a finding of

9 deliberate indifference.

10

Defendants also persuasively argue that there is no causal

11 connection between their actions on April 26 and Clustka’s injury –

12 her suicide two days later. Plaintiffs contend that had defendants

13 told WCJ staff about the seat belt incident, written a report, or

14 taken Clustka to the hospital for treatment, “a whole safety net of

15 precautions” would have prevented her suicide.

16

“When plaintiffs . . . seek to hold an individual defendant

17 personally liable for damages, the causation inquiry . . . . must

18 focus on whether the individual defendant was in a position to take

19 steps to avert [the injury] but failed to do so intentionally or

20 with deliberate indifference.” Leer v. Murphy, 844 F.2d 628, 633

21 (9th Cir. 1988). Even assuming that plaintiffs could show

22 deliberate indifference, they still must prove that the

23

24 but only because he now knows that his supervisor wants such incidents

25 reported, not because he believes that Clustka was trying to hurt

26 herself. (Id. Ex. 8 (Ashton Dep. 33:2-35:7; 83:20-85:9)).

13

Case 3:05-cv-00595-HDM-RAM Document 62 Filed 03/08/07 Page 14 of 19

indifference was the “actual and proximate cause” of the

deprivation of Clustka’s rights. See id. at 634. It is sufficient

1 for causation if the defendants set in motion a series of acts by

2 others that they knew or reasonably should have known would cause

3 others to inflict the constitutional injury. Kwai Fun Wong v.

4 U.S., 373 F.3d 952, 966 (9th Cir. 2004).

5

Clustka’s claim is premised on the fact that defendants

6 deprived her of “avenues of protection” to prevent her suicide. As

7 Clustka was released from the custody imposed by the defendants

8 after less than six hours without any medical incidents and was

9 free to seek (and indeed did receive) medical attention on her own,

10 the claim is most properly cast as delayed medical treatment.

11

When the 8th Amendment deprivation is a failure to treat a

12 serious medical need, deliberate indifference requires showing (a)

13 a purposeful act or failure to respond to a prisoner’s pain or

14 possible medical need; and (b) harm caused by the indifference. See

15 Jett, 439 F.3d at 1096. Although the Ninth Circuit does not

16 require a de minimis physical injury to sustain an 8th Amendment

17 claim, Oliver v. Keller, 289 F.3d 623, 628 (9th Cir. 2002), a delay

18 in medical treatment is a sustainable claim only if a resulting

19 harm is shown. See Berry v. Bunnell, 39 F.3d 1056, 1057 (9th Cir.

20 1994).

21

The harm presented by the facts of this case is Clustka’s

22 suicide. The failure to provide Clustka medical attention for

23 about six hours while she was in CPC resulted in no harm; Clustka

24 did not injure or attempt to injure herself while in CPC, nor did

25 she try to harm herself upon release. Moreover, after her release

26 but before her subsequent arrest she was evaluated on two separate

14

Case 3:05-cv-00595-HDM-RAM Document 62 Filed 03/08/07 Page 15 of 19

occasions – once by a CPC intake nurse and the other by WMC

professionals.

1

The amount of intervening medical attention that Clustka

2 received is substantial in this case. Clustka was evaluated by a

3 number of different medical professionals after her release from

4 the CPC that was initiated by the defendants: (1) she was seen by

5 the CPC intake nurse who refused her because her blood alcohol

6 level was too low; (2) she was seen by WMC emergency department

7 staff, who released her almost immediately; and (3) she was seen by

8 the last CPC nurse upon her arrest on April 27. These intervening

9 events, along with Clustka’s independent decision to return to her

10 mother’s house and violate the TPO, defeat any claim that there was

11 a causal link between the defendants’ failure to report the seat

12 belt incident and Clustka’s suicide.

13

Further, the plaintiffs have failed to present admissible

14 evidence that had the defendants advised the intake personnel of

15 the seat belt incident the course of events would have been any

16 different. Plaintiffs’ argument in this regard relies entirely on

17 speculation. Plaintiffs suggest that defendants had three options,

18 all of which would have averted Clustka’s suicide. First, the

19 defendants could have taken Clustka to the hospital, where she

20 would have been carefully watched, thoroughly assessed, and

21 transferred to a mental health institute where she would have been

22 kept as long as needed. Second, the defendants could have told

23 jail authorities, and the authorities could have refused Clustka

24 for CPC and sent her to the hospital for detoxification and suicide

25 assessment, thereafter to be transferred to a mental institute.

26 Finally, the defendants could have told jail authorities, and the

15

Case 3:05-cv-00595-HDM-RAM Document 62 Filed 03/08/07 Page 16 of 19

authorities could have kept her, observed her for any suicidal

actions, and then put her on a Legal 2000 when they released her

1 from CPC.

2

The evidence does not support these conclusions. PHS Nurse

3 Gail Singletary testified that suicide threats and attempts are

4 just one factor used in determining how to handle a patient. (Pl.

5 Opp’n Ex. 7 (Singletary Dep. at 41:11-16; 49:8-16)). Had the jail

6 staff been told of Clustka’s actions, they could have refused her

7 for admittance. Equally as likely, they could have kept her and

8 watched her for suicidal acts, and then released her after

9 detoxification without instituting a Legal 2000. Had Clustka been

10 taken to the hospital, she would have been evaluated, but it is as

11 likely as not that the hospital staff would have released her, or

12 if she had been sent to the mental health facility, she could have

13 been released just as she was on April 26. (Pl. Opp’n Ex. 14

14 (Gansert Dep. At 10:1-6)).

15

In addition, if defendants had told jail staff of Clustka’s

16 actions with the seat belt in the police vehicle, and jail staff

17 decided to watch Clustka for suicidal tendencies and then release

18 her (as they actually did) after she was detoxified, the course of

19 events would not have been any different. In such a case, even

20 though Clustka would have been in the jail the day before

21 threatening suicide, this information would not have been available

22 to the PHS nurses who did her intake April 27 after she was

23 arrested. This is because the paper trail on CPCs is minimal, and

24 incoming inmates, as Clustka was the night of April 27, are not

25 screened for any past CPCs. (See Pl. Opp’n Ex. 7 (Singletary Dep.

26 at 54:7-55:16)). Thus, even if the officers had reported the

16

Case 3:05-cv-00595-HDM-RAM Document 62 Filed 03/08/07 Page 17 of 19

incident and it had been noted in the CPC file, no one would have

known about it when Clustka was checked in April 27, unless the

1 same intake nurse handled her both times. (Id.) The parties do

2 not dispute that the nurses who handled Clustka on April 26 and

3 April 27 were different.

4

Plaintiffs have failed to establish sufficient facts to

5 support a conclusion by the trier of fact that the conduct of the

6 defendants in failing to report the seat belt incident constituted

7 deliberate indifference to Clustka’s rights, or that the conduct of

8 the defendants was the actual cause of Clustka’s harm sufficient to

9 constitute a 14th Amendment violation and impose § 1983 liability.

10 B. Municipal Liability

11

Plaintiffs also allege a § 1983 violation by the City of Reno.

12 They do so on four bases: (1) failure to train, (2) failure to

13 implement policies,(3) failure to discipline, and (4) charging a

14 known deficient officer with the responsibility of protecting the

15 public. They allege that because the City of Reno had no written

16 policy on the reporting of suicide threats, no suicide prevention

17 policy, and no training on how to distinguish genuine suicide

18 threats, that Ashton and Robertson did not properly handle Clustka

19 on April 26.

20

A municipality may be held liable only where it inflicts an

21 injury; it may not be held liable under a respondeat superior

22 theory. Monell v. Dep’t of Social Servs. of City of N.Y., 436 U.S.

23 658, 691 (1978); Gibson v. County of Washoe, 290 F.3d at 1185.

24 Liability may be established by what the municipality does or by

25 what it fails to do; that is, there may be direct liability or

26 liability by omission. Gibson v. County of Washoe, 290 F.3d at

17

Case 3:05-cv-00595-HDM-RAM Document 62 Filed 03/08/07 Page 18 of 19

1186; see also Est. of Abdollahi, 405 F. Supp. 2d at 1204.

Direct liability may be established by showing either that the

1 city violated Clustka’s rights or that it directed an employee to

2 do so. Gibson v. County of Washoe, 290 F.3d at 1185. The city is

3 liable for injuries inflicted pursuant to its own policies,

4 regulations, customs, or usage. Chew v. Gates, 27 F.3d 1432, 1444

5 (9th Cir. 1994). Plaintiffs do not allege any direct violation of

6 Clustka’s constitutional rights by the city. Rather, their

7 argument focuses on what the city failed to do.

8

A city may be liable where its omission amounts to deliberate

9 indifference to the rights of persons with whom the police come

10 into contact, and the deficiencies are closely related to the

11 plaintiff’s ultimate injury. City of Canton v. Harris, 489 U.S.

12 378, 388-91 (1989). To establish liability by omission, plaintiffs

13 must show that a (1) city employee violated Clustka’s rights; (2)

14 the city has customs or policies that amount to deliberate

15 indifference; and (3) these policies were the “moving force” behind

16 the employee’s violation of Clustka’s constitutional rights.

17 Gibson v. County of Washoe, 290 F.3d at 1193-94.

18

For the reasons set forth above, plaintiffs have failed to

19 establish that Clustka’s constitutional rights were violated by the

20 individual defendants. Therefore, under the facts of this case the

21 plaintiffs cannot establish a § 1983 claim against the City of

22 Reno.

23

24

25

26

18

Case 3:05-cv-00595-HDM-RAM Document 62 Filed 03/08/07 Page 19 of 19

Accordingly, defendant’s motion for summary judgment is

GRANTED. The clerk of the court is directed to enter judgment in

1 favor of the defendants and against the plaintiffs.

2

IT IS SO ORDERED.

3

DATED: This 8th day of March, 2007.

4

5

____________________________

UNITED STATES DISTRICT JUDGE

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 </s> i

C5.ase 3i:05-cv-00595-HDM-WGC Document 144 Filed 03/14/12 Page 1 of 3

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IN THE UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8 CHARLA CONN and DUSTIN CONN,

9

Plaintiffs,

3 ;05-cv-00595-HDM -WGc

10

vs .

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11 OFFICERS RYAN ASHTON and DAVID

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12

Defendants .

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We, the jury, in the above-entitled action, find the

following special verdict :

16 OUESTION .'NO . J :

17

Have the Plaintiffs Charla Conn and Dustin Conn proved by a

18 preponderance of the evidence that their motber Brenda Clustka

'

had a serious medical need , that is ,an actual h eightened risk of

'

19 suicide, on April 26, 2005?

20

YES

NO

21

(If yoD answeped ''Yes'' in Question No. 1, go to Questâon No .

2 . If you ansvered b,No'' ip Question No . ;, p lease date and sign

22 this forn .)

23 OUESTION NO . .2 ;

24

Have the Plaintiffs Charla Conn and Dustin Conn proved by a

25 preponderance of the evidence that the Defendants violated their

mother Brenda Clustka's Eighth and Fourtèenth Amendment rights by

26 proving the Defendants were subjectively aware of Brenda

JCase 3:05-cv-00595-HDM-WGC Document 144 Filed 03/14/12 Page 2 of 3

F

l Clustka's serious medical need and failed to respond to that

serious medical need on Aprià 26, 2005?

'

2 Defendant Ryan Ashton

YES

NO

a Defendant David Robertson

YES

.

NO

4

(If you answered ''Yes''for either defendant ïzl Questâo.n No . 2,

5 go to Questâon No. 3. If you answered ''No'' for botà defendants J.n '

Question No. 2, please date and sign this form .)

6

7 QUESTION NO . 3 ;

8

Have tbe Plaintiffs Charla Conn and Dustin Conn proved by a

p reponderance of the evidence that the Defendants' violation of

9 their mother Brenda C1ustka'è constitutional rights wiklf the actual cause of Brenda Clustka 's suicide on April 28, 2005:7

10 Defendant Ryan Ashton

YES

NO '

11 Defendant David Robertson

YE S

NO '

12

(If you answered nFes'' for either defendant ân Quéstion No . 3,

13 go to Questâon No. 4. If you answered %%No'' for botA defendan ts in

Question No. 3, please date and sign this form .)

11

15 QUESTION NO . .4 ;

16

Have the Plaintiffs Charla Conn #nd Du stin Conn proved by a

preponderance of the evidence that the Defendants' violation of

17 their mother Brenda Clust ka's constitutional rights was the

proxim ate cause of Brenda Clustka 's suicide on April 28 , 2005?

18 Defendant Ryan Ashton

YES

19

Defendant David Robertson

YES

N0 .
N0

20

(If you answered nyes''for either defendant én Ouestâon No . 4,

21 qo to Queszion No. 5. If you ansvered ''No'' Toz 10th defendants in

Qoestion No. 4, please date and sign this form .)

;'

22

23 OUEETION NO . 5 :

24

Have the defendants Ryan Ashton and David Robertson prov ed by k

a preponderance of the evidence that they are entitled to qualified

25 good faith imm unity?

26

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CCa' se 3:t05-cv-00595-HDM-WGC Document 144 Filed 03/14/12 Page 3 of 3

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Defendant Ryan Ashton

YES '

NO

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Defendant David Robertson

Y DS

NO

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''No'' for either derendant in Qoestion No . 5, !

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4 go to Question No. 6. If you ans-ered Yes

in Question No. 5, please date and sign this form .)

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6 OUESTION NO . 6 :

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7 If you have found in favor of 50th defendants on plaintiffs' j
claim , you are not to answer this question but in stead date and '
8 sign this special verdict. You may award damages against only I
those defendants whom you have found are liable to the plaint iffs Ii

9 under the law and facts of this case . If you have so found , you I

shbuld then answer the following :

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10
We the jury find in favor of Plaintiff Charla' Conn and '

11 against the following defendant ls):

12 Defendant Ryan Ashton

Q

13 Defendant David Robertson Q

11 and assess damages in the amount of $

.

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15

We the jury find in favor of Plaintiff Dustin Conn and !

against the following defendant ts):

16

17 Defendant Ryan Ashton

Q'

18 Defendant David Robertson Q

19 and assess damages in the am ount of $

.

20 Please date and sign this form .

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 </s> FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

CHARLA CONN; DUSTIN CONN,

⎫

Plaintiffs-Appellants,

No. 07-15572

v. CITY OF RENO; RYAN ASHTON;

⎬ D.C. No. Cv-05-00595-HDM

DAVID ROBERTSON,

OPINION

⎭ Defendants-Appellees.

Appeal from the United States District Court for the District of Nevada
Howard D. McKibben, District Judge, Presiding
Argued and Submitted October 20, 2008—San Francisco, California
Filed July 24, 2009

Before: Mary M. Schroeder, Dorothy W. Nelson and Stephen Reinhardt, Circuit Judges.
Opinion by Judge Reinhardt

9581

CONN v. CITY OF RENO

9585

COUNSEL
Terri Keyser-Cooper, Reno, Nevada, and Diane K. Vaillancourt, Santa Cruz, California, for the plaintiffs-appellants.
John J. Kadlic, Reno City Attorney, Donald L. Christensen, Deputy City Attorney, Reno, Nevada, for the defendantsappellees.

9586

CONN v. CITY OF RENO OPINION

REINHARDT, Circuit Judge:

This story has no happy ending, and it was unhappy long before the events in question transpired. For years before she ultimately committed suicide in the Washoe County Jail, Brenda Clustka (“Clustka”) struggled with alcohol abuse and serious mental health problems, including suicidal ideation. The longevity of her struggle and the persistence of her problems, however, do not absolve the defendants if they were deliberately indifferent to her serious medical need and as a result played a causal role in her death.

While transporting Clustka to civil protective custody, two Reno police officers witnessed her wrap a seatbelt around her neck in an apparent attempt to choke herself and then scream that they should kill her or else she would kill herself. The officers failed to report the incident to jail personnel or take her to a hospital. Clustka was released from protective custody a few hours later. The next day, she was again detained on a misdemeanor charge. During this second detention, less than 48 hours after the suicide threats, Clustka hanged herself in her cell.

When an individual is taken into custody and thereby deprived of her liberty, the officials who hold her against her will are constitutionally obligated to respond if a serious medical need should arise. If, with deliberate indifference, these officials fail to respond appropriately and instead act in a manner that will foreseeably result in harm, they violate her due process rights. The same is true when a municipality, with deliberate indifference, fails to train its law enforcement officers or fails to adopt and implement policies when it is highly predictable that such inaction will result in constitutional violations.

We hold that, on the facts presented, a reasonable jury could find that the defendant police officers are liable under

CONN v. CITY OF RENO

9587

42 U.S.C. § 1983 for their deliberate indifference to Clustka’s serious medical need, and that their actions were a cause in fact and a proximate cause of her suicide. Likewise, a jury could find the City of Reno liable for its failure to train its law enforcement officers or to implement policies on suicide prevention and reporting. For these reasons, and as explained further below, we reverse the district court’s grant of summary judgment in favor of the defendants and allow Clustka’s surviving children to bring their claims before a jury.

I. BACKGROUND

A.

Petitioners Charla and Dustin Conn (“the Conns”) are the surviving children of Brenda Clustka, who committed suicide on April 28, 2005 while in custody and awaiting trial at the Washoe County Jail.

Clustka had long struggled with mental health problems and suicidal ideation. She also had a history of repeated encounters with the law: she had multiple misdemeanor convictions, including for domestic violence, larceny, and driving under the influence. Between 2001 and 2004, Clustka was involuntarily committed to the Nevada Mental Health Institute (“NMHI”) on three separate occasions under a Legal 20001 for threatening or attempting suicide. Her mental health further deteriorated in 2005.

On March 19, 2005, Clustka was arrested for domestic battery of her mother. Officer Ashton (“Ashton”), one of the defendants in this case, was present during the arrest. Once in custody, Clustka stated that she “[wouldn’t] make it in jail”

1A Legal 2000 is a procedure under Nevada law whereby people suffering from mental illness or who may be a danger to themselves or others may be involuntarily committed to a mental health facility for up to 72 hours.

9588

CONN v. CITY OF RENO

and was placed on prison suicide watch. She was detained for just over one month and released on April 21, 2005.

A few days later, on April 25, 2005, Clustka relapsed into suicidal ideation. She was taken to Washoe Medical Center where she threatened to commit suicide in the emergency room by overdosing on her medication. Clustka was evaluated as suffering from “acute suicidal ideation” and transferred to NMHI on a Legal 2000. Her NMHI intake assessment states that she was at “serious risk of harm.” At 9:06 a.m. the next morning, however, Clustka was medically evaluated and released. According to the evaluating doctor, Clustka denied that she had any suicidal thoughts; she said she was “feeling ‘tired’ but otherwise well” and was assessed to be only at a “low risk of harm” at the time of discharge.

Several hours later on April 26, 2005, at 2:43 p.m., Ashton and his co-defendant, Officer Robertson (“Robertson”), were dispatched in response to a 911 call, which reported that someone, who turned out to be Clustka, was passed out on the sidewalk. The officers found Clustka in a “grossly intoxicated” state; she “had a difficult time walking without assistance.” Ashton, who had been one of the arresting officers handling the domestic battery call a month earlier, recognized Clustka on sight. The officers decided to take Clustka to Washoe County Jail on Civil Protective Custody (“CPC”) for her own safety until she sobered up. They ran a “wants and warrants check” and were cautioned of Clustka’s “violent tendencies, [that she was] known to abuse drugs, [was an] alcoholic [and had] other mental health problems.” Ashton admitted that he was aware of Clustka’s violent tendencies and mental health problems; nevertheless, the defendants chose not to handcuff her because she was being detained for her own protection, not on a criminal charge.

Clustka did not want to be taken to jail; she became agitated and uncooperative when told where she was going. Robertson then told Clustka, falsely, that they would take her,

CONN v. CITY OF RENO

9589

instead, to her residence. Robertson testified that he lied because Clustka was belligerent, and because he wanted to cajole her into the paddy wagon cooperatively, which he succeeded in doing.

En route to the jail, with her hands free, Clustka removed her seatbelt. She began walking around the back of the paddy wagon and tapping on the video surveillance camera to get the officers’ attention. According to Ashton, he asked Robertson if they should pull over to secure Clustka in her seat, but Robertson decided against it, as they were near the jail and he wanted to avoid any further confrontation. Both officers believed that there was a Reno Police Department policy and a state law requiring the wearing of seatbelts.

As they neared the jail, Clustka realized where she was being taken and became angry, belligerent, and uncooperative. As Ashton observed her through the surveillance camera, Clustka returned to her seat and wrapped the seatbelt around her neck, in an apparent attempt to choke herself. The officers pulled over, unwrapped the seatbelt from her neck, and handcuffed her. Clustka was screaming as they did so. She yelled something to the effect of, “You lied to me. Just kill me. I’ll kill myself then.”

Both Ashton and Robertson testified that they interpreted Clustka’s words and actions as a mere attempt to get their attention and “to manipulate the situation,” and that they did not believe Clustka’s threats to be serious. However, Ashton admitted that he did not believe that wrapping the seatbelt around her neck was a “joke.” Ashton, who had been on the police force for only seven months, remembered asking Robertson, a nearly eighteen-year veteran, whether he should write up a report on the incident, but that Robertson said no. Robertson testified that he “told [Ashton] if he wanted to report it, he could report it.” Ashton testified that he was unaware of any written policy mandating the reporting of such incidents.

9590

CONN v. CITY OF RENO

When they arrived with Clustka at the jail, neither defendant notified jail personnel that Clustka had tried to choke herself or that she had threatened to commit suicide. Instead, Ashton told jail personnel that Clustka was disoriented. The defendants did not write a report nor inform their supervising sergeant about the incident that day. Both asserted that it did not occur to them to report it.

Upon arrival at the jail, Clustka underwent a brief intake assessment, was held in CPC at the Washoe County Jail for nearly four hours, and was released without further inquiry around 8:00 p.m. Upon her release, she was served with a Temporary Protective Order (“TPO”), which her mother had earlier sought and obtained on account of domestic battery. The TPO ordered Clustka to stay away from her mother’s residence, where she had been living, and to retrieve her personal belongings only in the company of police officers. There is no indication whether any other place was available where Clustka would be able to sleep.

That evening, notwithstanding the TPO, Clustka returned to her mother’s house, and her mother called 911 to report that Clustka was causing a disturbance. Clustka, again grossly intoxicated, was taken to the emergency room, readmitted for observation, and released around 3:00 a.m.

The next day, on April 27, 2005, Clustka again returned to her mother’s residence to collect her belongings and was arrested by two officers (not defendants) for violating the restraining order. She was returned to Washoe County Jail.

After Clustka was booked, she was medically screened by the nurse on duty and recommended for assignment to the general inmate population. Because Clustka had been on suicide watch during her previous detention in March, she was placed in the mental health unit in a red jumper to alert staff that she was a high risk detainee. She was not, however,

CONN v. CITY OF RENO

9591

placed on suicide watch at this time. As a result there was a bed sheet available in her cell.

The following morning, on April 28, 2005, Clustka was escorted to and from her video arraignment. On the way back from the arraignment, at 8:35 a.m., she became upset and started crying because she wanted to make a phone call. At 9:17 a.m., she did not respond to the roll call. A deputy went to check on her and immediately called a Code 50.2 Clustka had committed suicide by hanging herself with the bed sheet.

The morning of Clustka’s suicide, Ashton happened to be present at the Washoe County Jail on an unrelated matter. He recognized Clustka’s photograph and told a prison deputy that “she tried to choke herself out in the back of the wagon on Tuesday.” Ashton explained to another deputy that a few days earlier, he had transported Clustka to CPC — without handcuffs — and that “she tried to hang herself in the wagon.” He stated that his more senior partner had declined to document the incident. Ashton said that he would now write up a report and predicted that his “sergeant will be pissed.”

B.

From January 2004 through August 2005, six detainees in Washoe County Jail committed suicide. Clustka’s suicide followed less than 30 days after that of another detainee.

On May 11, 2005, less than one month after Clustka’s suicide, the Reno Police Department, apparently for the first time, presented a class on “handling the mentally ill” to better explain the Legal 2000 procedures. In May 2005, a new suicide prevention policy was implemented. At intake, the arresting officer must now answer a series of questions concerning the detainee’s mental health, including questions about sui-

2Code 50 is a jail response when an inmate attempts suicide. Officers and medical personnel rush to the scene.

9592

CONN v. CITY OF RENO

cide risk. This policy was not adopted until after Clustka’s death.

C.

After Clustka committed suicide, her surviving children, the Conns, filed suit in the District of Nevada under 42 U.S.C. § 1983. They sued Officers Robertson and Ashton for deliberate indifference to Clustka’s serious medical need — her suicide risk — which, they alleged, resulted in her death. They also sued the City of Reno under § 1983 for, inter alia, its failure to train its law enforcement officers and to implement policies on suicide prevention and reporting. The district court found that the Conns had presented insufficient evidence to raise a genuine issue of material fact as to whether the officers were deliberately indifferent to a serious medical need by failing to report the choking incident and suicide threat and whether such failure to report was the proximate cause of Clustka’s death. Consequently, the district court concluded that there was no basis on which a jury could find either individual liability or municipal liability and granted the defendants’ motion for summary judgment. The Conns appeal, and we reverse.

II. STANDARD OF REVIEW

We review a grant of summary judgment by the district court de novo. McDonald v. Sun Oil Co., 548 F.3d 774, 778 (9th Cir. 2008). We examine all evidence in the light most favorable to the non-moving party, id.; Fed. R. Civ. P. 56, and “do[ ] not weigh the evidence or determine the truth of the matter, but only determine [ ] whether there is a genuine issue for trial,” Balint v. Carson City, 180 F.3d 1047, 1054 (9th Cir. 1999) (en banc). “A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party.” Long v. County of Los Angeles, 442 F.3d 1178, 1185 (citing Anderson v. Liberty

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Lobby, Inc., 477 U.S. 242, 248 (1986)). If such is the case, “summary judgment will not lie.” Anderson, 477 U.S. at 248.

III. DISCUSSION

A. Individual Liability

[1] The Eighth Amendment protects inmates from cruel and unusual punishment, which includes the denial of medical care. Estelle v. Gamble, 429 U.S. 97, 102-03 (1976). Pretrial detainees, by contrast, are protected under the Due Process Clause of the Fourteenth Amendment. Or. Advocacy Ctr v. Mink, 322 F.3d 1101, 1120 (9th Cir. 2003). Although courts have borrowed from Eighth Amendment jurisprudence in giving shape to pretrial detainees’ substantive due process rights, see Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998), that amendment establishes only “a minimum standard of care,” Mink, 322 F.3d at 1120 (emphasis in original).3

[2] The Eighth and Fourteenth Amendments both guarantee that inmates and detainees receive constitutionally adequate medical and mental health care. Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir 1994). An official’s deliberate indifference to a substantial risk of serious harm to an inmate — including the deprivation of a serious medical need — violates the Eighth Amendment, and a fortiori, the Fourteenth Amendment. Farmer v. Brennan, 511 U.S. 825, 828 (1994); Frost, 152 F.3d at 1128. To set forth a constitutional claim under the Eighth Amendment predicated upon the failure to provide medical treatment,

3Because here, the Conns prevail under the Eighth Amendment deliberate indifference standard, we need not further explicate in this case the more lenient but more amorphous test under the Fourteenth Amendment that has been suggested by our case law. See, e.g., City of Revere v. Mass. Gen. Hospital, 463 U.S. 239, 244 (1983); Youngberg v. Romeo, 457 U.S. 307, 321-22 (1982); Gibson v. County of Washoe, 290 F.3d 1175, 1188 n.9 (9th Cir. 2002); Mink, 322 F.3d at 1120, 1121 n.11; Jones v. Blanas, 393 F.3d 918, 934 (9th Cir. 2004).

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[f]irst, the plaintiff must show a “serious medical need” by demonstrating that “failure to treat a prisoner’s condition could result in further significant injury or the ‘unnecessary and wanton infliction of pain.’ ” Second, the plaintiff must show the defendant’s response to the need was deliberately indifferent.

Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir 2006) (internal citations omitted). The second prong requires both “(a) a purposeful act or failure to respond to a prisoner’s pain or possible medical need and (b) harm caused by the indifference.” Id. Deliberate indifference thus requires an objective risk of harm and a subjective awareness of that harm. Farmer, 511 U.S. at 837. We address these requirements — serious medical need, indifference to that need, and harm caused by that indifference — each in turn.

1. “Serious medical need”

[3] We recognize that a prisoner has a “serious” medical need if the failure to treat the condition could result in further significant injury or the “unnecessary and wanton infliction of pain.” Doty, 37 F.3d at 546 (citing McGuckin, 974 F.2d at 1059). A heightened suicide risk or an attempted suicide is a serious medical need. See id. (citing Torraco v. Maloney, 923 F.2d 231, 235 & n.4 (1st Cir. 1991)); see also Colburn v. Upper Darby Twp., 946 F.2d 1017, 1023 (3d Cir. 1991) (“A ‘particular vulnerability to suicide’ represents a ‘serious medical need.’ ”).

The district court did not decide whether summary judgment would be appropriate on the issue of serious medical need, although it commented that the evidence suggested that “Clustka’s medical needs . . . were not objectively serious enough to find a 14th Amendment violation.” We disagree. The Conns presented sufficient evidence of their mother’s

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objective, serious medical need for a reasonable jury to find in their favor.

[4] First, the significance of Clustka’s medical evaluations around the time of the choking incident and suicide threat is disputed and presents a question for the jury. It is true that Clustka underwent several medical evaluations in the days before and after she tried to choke herself in the paddy wagon, and that only one of these evaluations found her to be at serious risk of harm. The defendants argue that, for this reason, the evaluations establish that Clustka did not present a serious health risk. Their interpretation, however, is not conclusive; rather, the conflict in the evaluations in itself raises a genuine issue of fact for the jury to resolve. Moreover, due to the police officers’ failure to report the choking incident and suicide threat, Clustka’s evaluators were unaware of those events when they assessed Clustka’s mental health, and their conclusions were drawn in the absence of significant information that would have supported the Conns’ position.

[5] Second, Clustka’s long and undisputed history of mental health problems, alcohol and substance abuse, and suicide threats and attempts — including suicidal ideation the day before the incident in the paddy wagon — supports the conclusion that the threat to Clustka’s health was objectively serious, and that if untreated, she was likely to suffer further significant injury.

[6] Third, the choking incident, accompanied by Clustka’s threat to kill herself, constituted adequate objective evidence of a serious medical need. Although Ashton conceded that Clustka was not joking when she wrapped the seatbelt around her neck, the defendants attempt to minimize the seriousness of Clustka’s situation by characterizing her threats as “manipulative” — as an attempt to catch the officers’ attention and to avoid going to jail. The members of the jury, however, are entrusted with the responsibility to weigh the officers’ interpretation of the events against other reasonable inferences

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more favorable to the plaintiffs. The events may appear differently to the jury than they purportedly did, in hindsight, to Ashton and Robertson. To the jury, that Clustka attempted to choke herself with a seatbelt and screamed at the defendants that they should kill her or she would kill herself may, by itself, be sufficient to establish her serious medical need. This is particularly so since the Conns presented evidence that suicide threats by detainees must always be taken seriously.

The defendants contend that, even if Clustka truly intended to harm herself, there was no genuine possibility that she would have succeeded in killing herself in the paddy wagon. The defendants argue, rather callously, that the seatbelt would have slackened if and when she passed out, and that Clustka was therefore at no real risk of dying. This, of course, is beside the point. Whether Clustka’s life was in danger en route to the jail does not affect the more important question whether Clustka was at a heightened risk of killing herself in the near future, as she ultimately did — a heightened risk that itself presents a serious medical need. It is not necessary, moreover, that a serious medical need imminently result in death — an attempted suicide is sufficient. See Doty, 37 F.3d at 546 (citing Torraco, 923 F.2d at 235 & n.4).

[7] An objective juror could certainly conclude that in light of all the circumstances Clustka’s actions evidenced a serious medical need. The defendants’ attempts to cast doubt on the gravity of Clustka’s words and actions merely create a fact question for the jury to resolve. We conclude, therefore, that the Conns have raised a genuine issue of material fact as to the question of serious medical need.

2. “[D]efendant’s response to the need was deliberately indifferent”

To demonstrate the second prong — deliberate indifference — plaintiffs must show that the officers were (a) subjectively

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aware of the serious medical need and (b) failed to adequately respond. Farmer, 511 U.S. at 828.

a. Subjective awareness

[8] To be liable under the Eighth Amendment for denial of medical treatment to a detainee, an official must “know[ ] of and disregard[ ] an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 834, 837. In other words, the official must demonstrate a subjective awareness of the risk of harm.

Ashton and Robertson do not dispute that they witnessed Clustka wrapping a seatbelt around her neck and yelling that she wanted to die. Rather, they assert that they did not believe Clustka’s actions to be a “serious” threat or attempt of suicide. Put in Farmer’s terms, they contend that they did not “draw the inference,” id., that Clustka was genuinely at risk despite being “aware of facts from which the inference could be drawn,” id. According to the officers, Clustka’s actions seemed to them an attempt at manipulation. Once she realized that she was being transported to jail, Clustka tapped repeatedly on the surveillance camera to get the officers’ attention but received no response. By wrapping the seatbelt around her neck, they explain, she was merely resorting to more dramatic measures to get the officers’ attention, stop the paddy wagon, and avoid going to jail. The officers, moreover, recall discounting the seriousness of her actions on account of her state of intoxication. They also argue that Clustka could not have succeeded in killing herself because the seatbelt would have slackened around her neck once she passed out, thus her threat of suicide could not have been serious.

[9] We may not affirm the district court’s grant of the defendants’ motion for summary judgment, however, simply on the basis of the defendants’ assertions as to their own state

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of mind. Proof of “subjective awareness” is not limited to the purported recollections of the individuals involved. “Whether [an] official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence.” Farmer, 511 U.S. at 842. Indeed, in certain circumstances, “a factfinder may conclude that [an] official knew of a substantial risk from the very fact that the risk was obvious.” Id. (internal quotations omitted). Here, there is sufficient circumstantial evidence to create a genuine issue of fact regarding defendants’ subjective awareness of Clustka’s serious medical need.

[10] First, the Conns have presented evidence from which the jury could conclude that Clustka’s medical need was so obvious that Ashton and Robertson must have been subjectively aware of it, despite their later denial of that awareness. Clustka attempted to choke herself with a seat belt and screamed something to the effect of “kill me or I’ll kill myself”; these are warning signs that are difficult for any observer to miss. The officers, moreover, admittedly knew that Clustka was mentally unstable and that she was undergoing a particularly stressful time. Clustka’s detail report — which the officers requested and reviewed — cautioned: “violent tendencies, known to abuse substances, alcoholic, and other mental health problems.” The report also indicated that Clustka’s mother had obtained a restraining order against her. A reasonable jury could conclude that the officers’ knowledge of Clustka’s mental and emotional instability, coupled with their observation of her dangerous behavior, in fact produced a subjective awareness that Clustka was at acute risk of harm and suffered a serious medical need.

[11] Second, the Conns offer circumstantial evidence to explain why the officers might have failed to report the incident even if they were subjectively aware of Clustka’s medical need. Both officers believed that failing to handcuff Clustka while transporting her, and failing to fasten her into

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her seat belt once she unbuckled it, were violations of policy.4 Had they reported the incident, they would have had to report their own misconduct. A jury could reasonably conclude that the officers had a motive for remaining silent.

[12] Finally, Ashton’s comments both during and after the incident in the paddy wagon establish a genuine question of fact regarding his subjective awareness of the seriousness of Clustka’s condition — as well as his discomfort with the way in which he and Robertson handled the situation. Ashton recalls telling Robertson at the time of the incident that Clustka “was trying to choke herself.” The next day — the day before Clustka committed suicide — Ashton approached a senior officer expressing his discomfort with what had transpired. Later, when Ashton found out about Clustka’s suicide, he told one deputy that Clustka had “attempted to choke herself” in the paddy wagon. A second deputy reported the following conversation:

[Ashton] stated that “she looked out the back window and once she realized she was coming to Parr [the prison] she tried to hang herself in the wagon.” He stated that he was “new” and therefore asked his (unidentified) partner and senior officer if they needed to write a report regarding the suicide attempt. He stated that his partner declined the idea of documenting this occurrence, therefore he did not.

(emphasis supplied). Ashton went on to say that he would write a report and that his “sergeant will be pissed.” These statements — both contemporaneous and after-the-fact — could support a reasonable jury’s conclusion that Ashton, at least, was subjectively aware of Clustka’s serious medical

4It appears that this belief was not well-founded, and that the defendants may not have violated policy after all. That, however, is irrelevant; what matters is that the officers believed their actions violated policy and that they may have feared that the policy violation would be discovered.

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need. That he brought his concerns to Robertson’s attention is a factor to consider with respect to whether Robertson was also subjectively aware of the problem.

[13] We hold that, cumulatively, the above evidence is sufficient to create a material issue of fact on the question of the subjective awareness of both officers. This is particularly so because “questions involving a person’s state of mind are generally factual issues inappropriate for resolution by summary judgment.” Mendocino Envtl. Ctr. v. Mendocino County, 192 F.3d 1283, 1302 (9th Cir. 1999) (quotation and internal alterations omitted). We, of course, “may not make credibility determinations or weigh conflicting evidence.” Bator v. Hawaii, 39 F.3d 1021, 1026 (9th Cir. 1994). We must leave the question of subjective awareness to the jury.

b. “Failure to respond”

[14] The officers did not take Clustka to the Medical Center, nor did they report her behavior to jail personnel or to their supervising sergeant; they did not even write an incident report on the day that Clustka tried to choke herself. The defendants do not argue that, if we find that the officers were subjectively aware of Clustka’s serious medical need, they nonetheless responded appropriately. The defendants are not, therefore, entitled to summary judgment on the ground that the officers responded adequately to the situation presented.

3. “[H]arm caused by the indifference”

The question of causation is closer. We are satisfied, nonetheless, that the Conns presented sufficient evidence of actual and proximate causation to defeat summary judgment and give rise to a jury question whether the officers’ omissions caused Clustka’s eventual suicide.

a. Cause in fact

[15] The officers’ failure to report the choking incident and suicide threat “is the actual cause of [the] injury only if the

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injury would not have occurred ‘but for’ that conduct.” White v. Roper, 901 F.2d 1501, 1505 (9th Cir. 1990) (citing W. Prosser & W. Keeton, The Law of Torts [hereinafter “Prosser & Keeton”] § 41, at 266 (5th ed. 1984)). “The requisite causal connection can be established not only by some kind of direct personal participation in the deprivation, but also by setting in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury.” Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978). The Conns contend that had the officers responded appropriately to her attempted choking and suicide threat, Clustka would not have committed suicide at the time she did and that the officers’ failure to respond set in motion a sequence of events in which Clustka did not receive the medical treatment she urgently needed. We agree that the Conns have presented sufficient material evidence on cause in fact such that a jury could reasonably find in their favor.

The Conns argue that, had the officers properly responded to the choking incident and threat of suicide in either of two ways, they would have prevented her suicide less than 48 hours later. In support of this assertion, they presented expert testimony to establish the appropriate procedures for handling detainees who threaten suicide — procedures that were not followed here. Based on this testimony, the Conns assert that first, the officers could have properly taken Clustka directly to the hospital under a Legal 2000 procedure and reported the incident to hospital staff. Second, the officers could have continued on to the jail and reported the incident to jail personnel upon their arrival. At that point, jail personnel would have either (1) rejected Clustka at the door and sent her to the hospital, since the jail cannot provide medical treatment during civil protective custody; or (2) admitted her and placed her under suicide watch until she was detoxified, then evaluated her and sent her to the hospital under a Legal 2000. According to the plaintiffs, under either of these procedures Clustka would have received timely suicide intervention services by trained medical personnel who had full information about her

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most recent suicide attempt. At this point, she would have been kept in the hospital for up to 72 hours or would have, in some other way, received appropriate services in response to her acute risk of suicide.

Defendants counter that the outcome of either of these procedures “amount[s] to mere speculation.” They point to the fact that on two occasions, including on April 26, Clustka was evaluated at the emergency room and released soon thereafter without being transferred to a psychiatric facility. On three occasions between 2001 and 2005 when Clustka was transferred to NMHI, she did not stay there longer than a day. Defendants note that each time a patient is seen at the emergency room, the medical evaluation is based solely on the patient’s psychological state at that moment. Because Clustka did not physically harm herself while in CPC on April 26, there is reason to think that she was no longer suicidal at the moment she was released. Consequently, had she been evaluated by medical staff at the prison or hospital at that time, even had the medical staff been fully informed of the choking incident and suicide threat, she may well have been released from the jail or from the emergency room without further intervention. Finally, defendants argue that even if the officers had notified jail or hospital personnel of Clustka’s actions and she had been flagged as a suicide risk, if she had been released on April 26 (from either CPC or the emergency room), the information about the choking incident and suicide threat would not have been passed along to the jail intake personnel when Clustka was detained the next day on the misdemeanor charge; therefore, she would not have been put on suicide watch or treated any differently than she was.5 The jail keeps minimal documentation regarding CPC detainees —

5The jail already was aware that a month earlier, Clustka had been put on suicide watch at the prison and that she had a history of mental health problems. For that reason she was placed in the mental health unit. Nonetheless, without the information about her most recent suicide attempt/threat, she was not placed on suicide watch on April 27, 2005.

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apparently for privacy reasons — since these detainees have not been charged with a crime and are merely in custody for their own protection. As a result, there is an information gap between CPC and the criminal detention facilities at the jail, and mental health information about CPC detainees will generally be inaccessible if those individuals are later detained on a criminal charge. When, after being released on April 26, Clustka was picked up the next day on a misdemeanor charge, unless the same intake nurse was on duty as on the day before, it is likely that no one at the jail would have known that she had been flagged as a suicide risk in CPC the previous day, and her treatment would have been no different.

When presented to the jury, the defendants’ argument may well succeed. It is not, however, sufficient to warrant judicial determination of causation as a matter of law. The defendants’ argument rests on the questionable assumption that knowledge of Clustka’s second suicide threat in two days, if reported upon her arrival at the jail or at a hospital, would not have raised an alarm for medical personnel such that Clustka would have received more precautionary treatment than she otherwise did. It presupposes, moreover, that any such treatment would have been ineffective and that, regardless, the subsequent events would have occurred when they did. It makes little sense, however, to argue that the failure to provide access to suicide prevention services has no causal effect on a suicide that transpires less than 48 hours later. If suicide intervention is expected to have no impact on whether someone attempts suicide, why would the City ever bother with the Legal 2000 procedure? Suicide prevention services are designed to assess the patient and release her only after a determination that she is no longer at risk. In Clustka’s case, this determination was never made by someone who had all the requisite information about her psychological instability at the time. A jury could reasonably find that the defendants’ failure to report critical information rendered the subsequent medical evaluations ineffectual. Clustka’s suicide might well have been prevented by effective medical intervention —

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such as holding her on a Legal 2000 for up to 72 hours — but that intervention would likely have occurred only if the crucial information about the choking incident and suicide threat were known by the persons making the necessary determinations.

[16] We cannot affirm the grant of a motion for summary judgment where, as here, each side has garnered substantial evidence in support of its position, and important facts, including the proper intake procedures for an intoxicated, suicidal detainee, remain in dispute. The Conns have presented evidence that knowledge of Clustka’s suicide attempt and threat of future suicide would have made a difference in her medical evaluation, treatment and supervision. We construe that evidence in the light most favorable to the Conns. McDonald, 548 F.3d at 778. There need only be “evidence in the record to support the inference that if medical staff had evaluated [Clustka], prevented [her] from entering the jail, and directed [her] to a mental hospital [Clustka] almost certainly would have received the care [s]he needed, rather than face conditions that worsened [her] outlook.” Gibson, 290 F.3d at 1190. As the Conns have met their burden, we will leave the jury to its proper function of assessing the weight and credibility of that evidence as well as that presented by the defendants. See Bator, 39 F.3d at 1026.

b. Proximate cause

[17] “Once it is established that the defendant’s conduct has in fact been one of the causes of the plaintiff ’s injury, there remains the question whether the defendant should be legally responsible for the injury.” White, 901 F.2d at 1506 (citing Prosser & Keaton, § 42 at 272-73). The officers’ conduct “is not the proximate cause of [Clustka’s] alleged injuries if another cause intervenes and supersedes [their] liability for the subsequent events.” Id. (quoting Restatement (Second) of Torts §§ 440-53 (1965)). However, “foreseeable intervening causes . . . will not supersede the defendant’s responsibili-

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ty.” Id. (citing Prosser & Keeton, § 44 at 303-04) (emphasis added). If “reasonable persons could differ” over the question of foreseeability, “summary judgment is inappropriate and the question should be left to the jury.” Id.

Where defendant’s actions are a “moving force” behind a series of events that ultimately lead to a foreseeable harm, defendant is not relieved of liability on account of the intervening acts. See id; see also Duffy, 588 F.2d at 743; Cabrales v. County of Los Angeles, 864 F.2d 1454 (9th Cir. 1988), vacated, 490 U.S. 1087 (1989), reinstated, 886 F.2d 235 (9th Cir. 1989). In White, defendant prison guards tried to force the plaintiff into a violent inmate’s cell; the plaintiff resisted, attempted to run, and subsequently suffered injury from the guards. 901 F.2d at 1503. We held that the defendants’ actions were a “moving force” behind the plaintiff ’s attempt to run and that, because it was foreseeable that the plaintiff would resist entering the cell, his attempt to run was not an intervening cause. Id. at 1505-06. In Cabrales, which involves municipal rather than individual liability, an inmate made a suicidal gesture while in isolation, after which prison officials released him to the general jail population. Cabrales, 864 F.2d at 1457. Subsequently, he got into a fight and was subjected to ten days in isolation, during which time he committed suicide. Id. We held that the County’s inadequate provision of psychiatric care was a “moving force” behind the suicide. Id. at 1461. Similarly, a jury could reasonably find that the officers’ failure to respond to Clustka’s suicidal actions was a “moving force” behind her suicide.

[18] Defendants argue that two principal intervening causes of Clustka’s suicide supersede whatever responsibility they might otherwise have had for causing her death. First, they argue that because Clustka was medically evaluated three times after the choking incident and suicide threat and each time determined not to be at risk of suicide, her suicide could not have been caused by the officers’ failure to report it. We disagree. At none of the three examinations, two of which

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were cursory jail admission screenings, was potential suicide a cause for or the subject of the review. When medical examiners have insufficient information about the patient they are diagnosing, they are likely to give an inaccurate diagnosis. By failing to report Clustka’s choking and threat of suicide, the officers rendered these reviews of little value. More important, by doing so, they foreseeably undermined her access to effective medical evaluations and adequate mental health care. A jury could reasonably conclude that notwithstanding the subsequent uninformed medical reviews, the failure to take action following the incident in the paddy wagon was a moving force and proximate cause of Clustka’s suicide.

[19] Second, defendants argue that Clustka’s subsequent arrest and detention on a misdemeanor charge was an intervening stressor that directly caused the suicide, breaking the chain of causation. Again, however, plaintiffs have presented sufficient material evidence to raise a jury question on the issue of foreseeability. Even if she had not been detained again, it was clear from the officers’ direct observations of Clustka and from her detail report that she was mentally unstable, that she suffered from alcohol and substance abuse, and that she was having family troubles that exacerbated these problems. In these circumstances, an incident that would further destabilize her — whether detention or some other similar intervening force — was entirely foreseeable.

[20] Construing all the evidence in the light most favorable to the Conns, McDonald, 548 F.3d at 778, we conclude that they have presented sufficient evidence of foreseeability that the question of proximate cause must be decided by a jury.

B. Qualified immunity

[21] We next assess whether summary judgment is warranted because the defendants are entitled to qualified immunity. We apply a two-part inquiry: First, did the defendants’ actions violate the Constitution? Second, if so, was the right

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violated clearly established? Saucier v. Katz, 533 U.S. 194, 201 (2001); Pearson v. Callahan, 129 S. Ct. 808, 818 (2009) (holding the “sequence set forth [in Saucier] is often appropriate” but not mandatory). Having determined that there is a question for the jury on the first prong, we consider whether we should nonetheless affirm the grant of summary judgment at this stage because the constitutional rights at issue have not been clearly established. This second inquiry “must be undertaken in light of the specific context of the case, not as a broad general proposition . . . .” Saucier, 533 U.S. at 201. “The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Id. at 202. Officers are entitled to qualified immunity if they reasonably misapprehend how the law would govern in their particular situation. Id at 205.

[22] Qualified immunity is not warranted here. It is clearly established that the Eighth Amendment protects against deliberate indifference to a detainee’s serious risk of suicide. See Cabrales, 864 F.2d 1454; Cavalieri v. Shepard, 321 F.3d 616, 621 (7th Cir. 2003); Colburn, 946 F.2d at 1023. When a detainee attempts or threatens suicide en route to jail, it is obvious that the transporting officers must report the incident to those who will next be responsible for her custody and safety. Thus, the constitutional right at issue here has been clearly established. Nevertheless, for the same reason that we cannot determine at summary judgment whether a constitutional violation occurred, a grant of summary judgment to either party with regard to qualified immunity would be inappropriate.

C. Municipal liability

Under Monell, a municipality is a legal “person” subject to liability under § 1983 for injuries it inflicts through deliberate indifference. Monell v. Dep’t of Social Servs. of City of N.Y., 436 U.S. 658, 690-91 (1978). Municipal liability may be

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established on account of the city’s deliberate acts or omissions; liability under the theory of respondeat superior, however, is insufficient to support a § 1983 violation. Id. at 691; Gibson, 290 F.3d at 1185-86. Municipal liability for a failure to act requires a showing “(1) that a [municipal] employee violated the plaintiff ’s constitutional rights; (2) that the [municipality] has customs or policies that amount to deliberate indifference; and (3) that these customs or policies were the moving force behind the employee’s violation of constitutional rights.” Long v. County of L.A., 442 F.3d 1178, 1186 (9th Cir. 2006) (citing Gibson, 290 F.3d at 1193-94). Because we have denied the defendants’ motion for summary judgment on the constitutional claims against Robertson and Ashton, the first prong has been met for the purposes of summary judgment here as well.

The Conns seek to establish municipal liability on account of four separate omissions: (1) failure to train; (2) failure to adopt and implement policies; (3) failure to address Officer Robertson’s deficient performance; and (4) failure to discipline. We consider each of these claims in turn.

1. Failure to Train

[23] “Only where a failure to train reflects a ‘deliberate’ or ‘conscious’ choice by a municipality . . . can a city be liable for such a failure under § 1983.” City of Canton v. Harris, 489 U.S. 378, 389 (1989). Deliberate indifference by the municipality may be established where “a violation of federal rights may be a highly predictable consequence of a failure to equip law enforcement officers with specific tools to handle recurring situations.” Long, 442 F.3d at 1186 (quoting Bd. of County Comm’rs v. Brown, 520 U.S. 397, 409 (1997)).

Under this standard, the Conns have established a genuine issue of fact for the jury on the question of the City of Reno’s failure to train. First, they have provided substantial evidence in the form of deposition testimony that before Clustka’s sui-

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cide the City did, in fact, fail to train its officers in suicide prevention and the identification of suicide risks. The City of Reno has not provided any evidence to the contrary.

Second, plaintiffs have provided evidence that officers predictably face situations where they must assess and react to suicide risks in order to prevent grave harm to people under their protection. Suicide is a leading cause of death in American prisons, Shevon L. Scarafile, “Deliberate Indifference” or Not, 51 Vill. L. Rev. 1133, 1133-34 & n.4 (2006), and Clustka’s suicide was one of six in less than two years at the Washoe County Jail. While police officers are not prison guards, they are the first law enforcement officials to deal with detainees — and they do so in highly stressful situations. Robertson testified that over the course of his career, he has encountered between 500 and 1,000 people threatening to kill themselves. Police officers frequently take mentally ill detainees to the hospital on Legal 2000s. The failure to train officers on how to identify and when to report suicide risks produces a “highly predictable consequence”: that police officers will fail to respond to serious risks of suicide and that constitutional violations will ensue.

Finally, plaintiffs have made an adequate showing that, had the City trained its officers, the violation of Clustka’s constitutional rights could have been avoided. For a policy to be a moving force behind the violation of a constitutional right, the failure of the policy or omission must be “closely related to the ultimate injury.” Gibson, 290 F.3d at 1196 (quoting Canton, 489 U.S. at 391). Here, Robertson and Ashton believed that they had the discretion not to report the choking incident and suicide threat in the paddy wagon. Had they been trained in suicide prevention, there is a reasonable probability that they would have responded differently and reported to the jail that Clustka was at risk of suicide, or taken her directly to the hospital.

[24] For these reasons, plaintiffs have presented sufficient evidence to establish a genuine issue of fact with respect to

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municipal liability for failure to train. Because the City failed to train its police officers in suicide prevention, a reasonable jury could find that the City’s “customs or policies . . . amount to deliberate indifference;” and because Ashton and Robertson, who never received such training, failed to respond appropriately by reporting the incident in the paddy wagon, there is sufficient evidence for a reasonable jury to find “that these customs or policies were the moving force behind the employee[s’] violation of constitutional rights.” Long, 442 F.3d at 1186. “[W]hether a local government has displayed a policy of deliberate indifference to the constitutional rights of its citizens is generally a jury question.” Gibson, 290 F.3d at 1194-95. We are compelled to deny the motion for summary judgment on municipal liability for failure to train.

2. Failure to Adopt and Implement Policies

Plaintiffs also challenge the lack of an official, written policy on suicide prevention. “This Court consistently has found that a county’s lack of affirmative policies or procedures to guide employees can amount to deliberate indifference, even when the county had other general policies in place.” Long 442 F.3d at 1189.

The Conns assert — and appear to be correct — that there was no written policy on reporting suicide threats at the time of Clustka’s suicide,6 although there were written policies regarding the Legal 2000 procedure. The absence of any written policy is supported by the fact that neither Robertson nor Ashton was disciplined for failing to report Clustka’s suicide threat, although each received negative comments about the incident in their annual evaluation. Post-event evidence, such as this, is admissible to prove the absence of a municipal

6Deputy Chief Johns was “not sure” if there was a written policy requiring officers to report suicide threats.

CONN v. CITY OF RENO

9611

defendant’s policy or practice. Henry v. County of Shasta, 132 F.3d 512, 520 (9th Cir. 1997).

Shortly after Clustka’s suicide, moreover, the City implemented a new suicide prevention policy. At intake in the jail, the arresting officer must now fill out a form answering a series of questions concerning the detainee’s mental health, including questions about suicide risk. No such policy had been adopted and implemented as of April 26, 2005.

[25] As the Conns have presented sufficient evidence of a failure to adopt and implement suicide-prevention policies so as to give rise to a jury question, the rest of our analysis mirrors that which we described above regarding the failure to train. Given the predictability of suicide risk among detainees, and the likelihood of constitutional violations if suicide threats go unreported, the plaintiffs have presented a genuine issue for the jury on whether the failure to adopt and implement policies on suicide prevention was deliberately indifferent, and whether that deliberate indifference was a “moving force” behind the violation of Clustka’s constitutional rights.

3. Failure to address the deficient performance of Officer Robertson

[26] Whatever Robertson’s on-the-job weaknesses may have been, there is no evidence in the record that the municipality should have known — or did know — that Robertson would be likely to show deliberate indifference in circumstances such as these. Moreover, the causal link between the City’s failure to address his deficient performance in other aspects of his job and his failure to respond appropriately here is tenuous at best. Accordingly, we affirm the grant of summary judgment on this issue.

4. Failure to discipline

Robertson and Ashton were not disciplined in any way for their misconduct in failing to report the choking incident and

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suicide threat. They each received some negative comments about their handling of the situation in their annual reports, written by their supervising sergeant.

[27] A failure to discipline is not a separate ground for establishing municipal liability. Rather, it is evidence that tends to establish the absence of or failure to enforce a policy on suicide prevention. We will therefore affirm the district court’s grant of summary judgment on this issue as well, without commenting on the admissibility of the particular evidence regarding the two officers for the purpose described above.

IV. CONCLUSION

Clustka’s surviving children have presented sufficient evidence to survive summary judgment on the large majority of the claims brought under § 1983. On the basis of the evidence presented by the Conns, the jury could reasonably find that Clustka demonstrated a serious medical need when she attempted to choke herself with a seatbelt in the paddy wagon and threatened to kill herself; that Ashton and Robertson were deliberately indifferent to that medical need; and that their indifference was a factual and proximate cause of Clustka’s death. On the basis of the Conns’ evidence, a jury could also reasonably determine that the City of Reno’s failure to train its law enforcement officials and implement written policies on suicide prevention constituted deliberate indifference and were, independently, a moving force behind Ashton and Robertson’s violation of Clustka’s constitutional rights.

We therefore reverse the district court’s grant of the defendants’ motion for summary judgment with respect to individual and municipal liability, with the exception that we affirm the grant of summary judgment with respect to the City’s failure to address Robertson’s deficient performance and its failure to discipline the individual officers. The case is remanded

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to the district court for further proceedings consistent with this opinion.

REVERSED and REMANDED.

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CM/ECF - nvd - District Version 6.1
United States District Court District of Nevada (Reno)
CIVIL DOCKET FOR CASE #: 3:05-cv-00595-HDM-WGC

CLOSED

Charla Conn et al., VS City of Reno, et al., Assigned to: Judge Howard D. McKibben Referred to: Magistrate Judge William G. Cobb Case in other court: USSC, 07-15572 Cause: No cause code entered Plaintiff Charla Conn
Plaintiff Dustin Conn
https://ecf.nvd.uscourts.gov/cgi-bin/DktRpt.pl?770600533399594-L_1_1-1

Date Filed: 11/03/2005 Date Terminated: 03/14/2012 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Diane K. Vaillancourt Law Ofﬁce of Diane K. Vaillancourt 849 Almar Avenue Suite C403 Santa Cruz, CA 95060 (831) 458-3440 Fax: (831) 458-3653 Email: vaillancourt@cruzio.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Terri Keyser-Cooper Law Ofﬁce of Terri Keyser-Cooper 3590 Barrymore Drive Reno, NV 89512 775-337-0323 Fax: 775-337-0471 Email: keysercooper@lawyer.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter C Wetherall Wetherall Group, Ltd. 9345 W. Sunset Road Suite 100 Las Vegas, NV 89148 702-838-8500 Fax: 702-837-5081 Email: pwetherall@wetherallgroup.com ATTORNEY TO BE NOTICED
represented by Diane K. Vaillancourt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Terri Keyser-Cooper
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V. Defendant Ryan Ashton
Defendant City of Reno TERMINATED: 09/08/2011
Defendant David Robertson

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(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter C Wetherall (See above for address) ATTORNEY TO BE NOTICED
represented by Jack D Campbell Reno City Attorney's Ofﬁce PO Box 1900 Reno, NV 89505 775-334-2050 Fax: 775-334-2420 Email: campbellj@reno.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patricia A. Lynch Reno City Attorney PO Box 1900 Reno, NV 89505 775-334-2050 Fax: 775-334-2420 Email: fedcourt@ci.reno.nv.us ATTORNEY TO BE NOTICED
represented by Jack D Campbell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patricia A. Lynch (See above for address) ATTORNEY TO BE NOTICED
represented by Jack D Campbell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patricia A. Lynch (See above for address) ATTORNEY TO BE NOTICED

Date Filed

# Docket Text

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11/03/2005 11/03/2005 11/03/2005 11/03/2005 11/03/2005 11/03/2005 11/03/2005 11/16/2005 11/16/2005 11/16/2005 11/21/2005 11/21/2005
11/30/2005
11/30/2005
12/12/2005 12/12/2005 12/22/2005 12/23/2005
02/21/2006

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1 MISCELLANEOUS DOCUMENT civil cover sheet (Entered: 11/04/2005)
2 COMPLAINT and jury demand (Entered: 11/04/2005)
3 MOTION TO DISMISS mtn for partial S/J against Ds-Ashton and Robertson (Entered: 11/04/2005)
4 CERTIFICATE OF SERVICE obo P. (Entered: 11/04/2005)
5 SUMMONS ISSUED as to D-City of Reno (Entered: 11/04/2005)
6 SUMMONS ISSUED as to D-David Robertson (Entered: 11/04/2005)
7 SUMMONS ISSUED as to D-Ryan Ashton (Entered: 11/04/2005)
12 SUMMONS Returned Executed by Plaintiff Charla Conn, Defendant City of Reno. City of Reno served on 11/18/2005. (WJ, ) (Entered: 12/05/2005)
13 SUMMONS Returned Executed by Plaintiff Charla Conn, Defendant David Robertson. David Robertson served on 11/9/2005. (WJ, ) (Entered: 12/05/2005)
14 SUMMONS Returned Executed by Plaintiff Charla Conn, Defendant Ryan Ashton. Ryan Ashton served on 11/9/2005. (WJ, ) (Entered: 12/05/2005)
8 STIPULATION - DPSO by Defendants Ryan Ashton, City of Reno, David Robertson. (JAR, ) (Entered: 11/22/2005)
9 STIPULATION - to ext time for Ds to ﬁle answr or responsive pldg and to oppose S/J by Defendants Ryan Ashton, City of Reno, David Robertson, Plaintiff Charla Conn. (JAR, ) (Entered: 11/22/2005)
10 SCHEDULING ORDER pursuant to Stipulated Discovery Plan and Sscheduling Order; Discovery Cut-Off: May 20, 2006; Dispositive Motions: June 19, 2006; Joint Pretrial Order: July 19, 2006.Signed by Judge Robert A. McQuaid Jr. on 11/30/05. (HJ, ) (Entered: 11/30/2005)
11 ORDER ON STIPULATION re 9 Stipulation to Extend Time for Defendants to File Answer or Responsive Pleading and to Oppose Summary Judgment Motion; Defendants have to and including December 12, 2005, in which to ﬁle an Answer or responsive pleading; Defendants have to and including March 24, 2006, in which to ﬁle their Opposition to Plaintiffs' Motion for Partial Summary Judgment. Signed by Judge Robert A. McQuaid Jr. on 11/30/2005. (HJ, ) (Entered: 11/30/2005)
15 MOTION to Dismiss by Defendants Ryan Ashton, City of Reno, David Robertson. Responses due by 12/30/2005. (JMA) (Entered: 12/12/2005)
16 1ST AMENDED COMPLAINT against Ryan Ashton, City of Reno, David Robertson, ﬁled by Charla Conn.(WJ, ) (Entered: 12/15/2005)
17 Submission of PROPOSED stipulation ofr P to resopnd to D's motion to dism (1st req) ﬁled by Plaintiff Charla Conn. (WJ, ) (Entered: 12/22/2005)
18 MINUTE ORDER IN CHAMBERS of the Honorable Howard D. McKibben, U.S. District Judge on 12/23/2005. By Deputy Clerk: Michael Large. The Stipulation for extension of time 17 is GRANTED. Plaintiff shall have until 2/20/06 to ﬁle an opposition to 15 Defendants' Motion to Dismiss. Responses due by 2/20/2006. (AF, ) (Entered: 12/23/2005)
19 RESPONSE to 15 MOTION to Dismiss; ﬁled by Plaintiff Charla Conn. Replies due by 3/7/2006. (Keyser-Cooper, Terri) (Entered: 02/21/2006)

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20 NOTICE by Defendants Ryan Ashton, City of Reno, David Robertson of Change of Responsible Attorney (Skau, Creighton) (Entered: 03/02/2006)

03/03/2006

21 REPLY to Response to 15 MOTION to Dismiss; ﬁled by Defendants Ryan Ashton, City of Reno, David Robertson. (Skau, Creighton) (Entered: 03/03/2006)

03/20/2006

22 PROPOSED Discovery Plan/Scheduling Order ﬁled by Plaintiff Charla Conn First Amended Proposal; Withdrawal of Plaintiffs' Motion for Partial Summary Judgment; Proposed Order. (Vaillancourt, Diane) (Entered: 03/20/2006)

03/20/2006

23 AMENDED SCHEDULING ORDER re 22 First Amended Stipulated Discovery Plan & Scheduling Order; Withdrawal of Plaintiffs' Motion for Partial Summary Judgment. Discovery due by 7/31/2006. Motions due by 8/30/2006. Signed by Judge Robert A. McQuaid Jr. (HJ, ) (Entered: 03/20/2006)

03/28/2006

24 NOTICE of Trial Setting:Jury Trial set for 2/6/2007 at 9:00 AM (two-week stacked calendar) in Reno Courtroom 4 before Judge Howard D. McKibben. The deadline to schedule a settlement conference is 8/30/2006. The magistrate judge shall conduct the settlement conference at a convenient time prior to trial (no image attached)(BS, ) (Entered: 03/28/2006)

03/28/2006

25 ORDER denying 15 Motion to Dismiss, see ord for spec. Signed by Judge Howard D. McKibben on 3/28/06. (JAR, ) (Entered: 03/29/2006)

03/30/2006

26 MINUTE ORDER IN CHAMBERS of the Honorable Howard D. McKibben, U.S. District Judge on 3/30/2006. By Deputy Clerk: Bette Stewart. Pursuant to the approved stipulation of the parties 23 withdrawing plaintiff's motion for partial summary judgment 3 , the brieﬁng schedule for the motion for partial summary judgment set forth in the order 25 is vacated. (no image attached) (BS, ) (Entered: 03/30/2006)

03/30/2006

27 NOTICE of Trial Setting: Upon agreement of the parties, the Jury Trial set for 2/6/2007 is continued to 3/20/2007 at 09:00 AM in Reno Courtroom 4 before Judge Howard D. McKibben. (no image attached)(BS, ) (Entered: 03/30/2006)

04/17/2006

28 First ANSWER to 16 Amended Complaint by Defendants Ryan Ashton, City of Reno, David Robertson.(Campbell, Jack) (Entered: 04/17/2006)

04/25/2006

29 EX PARTE DOCUMENT Application for Order Declaring Charla Conn the "Next of Kin" for the Purpose of Obtaining Mental Health Records for her Deceased Mother Brenda Clustka; Order ﬁled by Plaintiff Charla Conn. (Keyser-Cooper, Terri) (Entered: 04/25/2006)

04/25/2006

30 ORDER re 29 Ex Parte Application for Order Declaring Charla Conn the "Next of Kin" for the Purpose of Obtaining Mental Health Records for Her Deceased Mother Brenda Clustka ﬁled by Charla Conn. Signed by Judge Robert A. McQuaid Jr. on 4/25/2006. (HJ, ) (Entered: 04/25/2006)

05/11/2006

31 STIPULATION Second Amended Stipulated Discovery Plan; Proposed Order by Plaintiff Charla Conn. (Keyser-Cooper, Terri) (Entered: 05/11/2006)

05/11/2006

32 AMENDED SCHEDULING ORDER re 31 Second Amended Stipulated Discovery Plan and Scheduling Order. Discovery due by 7/31/2006. Motions due by 8/30/2006. Proposed Joint Pretrial Order due by 9/29/2006. See order for further details. Signed by Judge Robert A. McQuaid Jr. on 5/11/2006. (HJ, ) (Entered: 05/11/2006)

06/07/2006

33 MINUTE ORDER IN CHAMBERS of the Honorable Robert A. McQuaid Jr., U.S. Magistrate Judge on 6/7/2006. By Deputy Clerk: GMM. A Discovery hearing is set on the Court's calendar for Tuesday, June 13, 2006 at 10:00 a.m.(no image attached) (GMM, ) (Entered: 06/07/2006)

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06/08/2006 06/13/2006
06/15/2006 06/19/2006 06/21/2006 06/27/2006
06/29/2006 07/06/2006 07/24/2006 07/27/2006

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34 SUPPLEMENT re 33 Minute Order, ; Matters ToBe Addressed At Discovery Hearing by Plaintiff Charla Conn. (Keyser-Cooper, Terri) (Entered: 06/08/2006)
35 MINUTES OF PROCEEDINGS - Discovery Hearing held on 6/13/2006 before Judge Robert A. McQuaid Jr.. Crtrm Administrator: GMM; Pla Counsel: Terri Keyser-Cooper; Def Counsel: Jack Campbell; Court Reporter/FTR #: FTR; Time of Hearing: 9:53 a.m. to 10:31:23 a.m.. The Court addresses the parties and advises them that he has reviewed Ms. Keyser-Cooper's ﬁling regarding this hearing and ensures that Mr. Campbell has seen the ﬁling. The parties present their respective arguments to the Court. The Court ﬁnds that while the probable cause form is discoverable, that form not being a form in Defendants' control, Plaintiff will need to obtain it elsewhere. The Court orders that a protective order regarding the IA reports will be submitted for review and approval and thereafter, those requested reports will be provided to Plaintiff's counsel. The Court further orders that, in light of Mr. Campbell's assurances that the forty (40) named witnesses are not going to be called upon to testify, Plaintiff's request for the evidence is Denied as moot. There being nothing further, the Court adjourns.(no image attached) (GMM, ) (Entered: 06/14/2006)
36 STIPULATION re Protective Order; Proposed Order by Plaintiffs Charla Conn, Dustin Conn. (Vaillancourt, Diane) (Entered: 06/15/2006)
37 ORDER ON STIPULATION re 36 Stipulated Protective Order. Signed by Judge Robert A. McQuaid Jr. on 6/19/2006. (HJ, ) (Entered: 06/19/2006)
38 MOTION to Compel MOTION TO COMPEL TESTIMONY AND REQUEST FOR SANCTIONS, EXPEDITED HEARING REQUESTED; EXHIBITS 1 AND 2 by Plaintiff Charla Conn. Responses due by 7/9/2006. (Keyser-Cooper, Terri) (Entered: 06/21/2006)
39 MINUTE ORDER IN CHAMBERS of the Honorable Robert A. McQuaid Jr., U.S. Magistrate Judge on 6/27/2006. RE: 38 MOTION to Compel MOTION TO COMPEL TESTIMONY AND REQUEST FOR SANCTIONS, EXPEDITED HEARING REQUESTED; EXHIBITS 1 AND 2 ﬁled by Charla Conn, Motion Hearing set for 7/27/2006 09:00 AM in Reno Courtroom 2 before Magistrate Judge Robert A. McQuaid Jr. The parties have been telephonically notiﬁed.(no image attached) (GMM, ) (Entered: 06/27/2006)
40 RESPONSE to 38 MOTION to Compel MOTION TO COMPEL TESTIMONY AND REQUEST FOR SANCTIONS, EXPEDITED HEARING REQUESTED; EXHIBITS 1 AND 2; ﬁled by Defendants Ryan Ashton, City of Reno, David Robertson. Opposition to Motion to Compell Testimony and Requests for Sanctions Replies due by 7/13/2006. (Attachments: # 1)(Campbell, Jack) (Entered: 06/29/2006)
41 REPLY to Response to 38 MOTION to Compel MOTION TO COMPEL TESTIMONY AND REQUEST FOR SANCTIONS, EXPEDITED HEARING REQUESTED; EXHIBITS 1 AND 2; ﬁled by Plaintiff Charla Conn. (Keyser-Cooper, Terri) (Entered: 07/06/2006)
42 STATEMENT of Plaintiffs re Further Matters to Address at Hearing of July 27, 2006, before The Honorable Robert A. McQuaid, Jr. re 39 Minute Order Setting Hearing on Motion, ; by Plaintiffs Charla Conn, Dustin Conn. (Vaillancourt, Diane) (Entered: 07/24/2006)
43 MINUTES OF PROCEEDINGS - Motion Hearing held on 7/27/2006 before Magistrate Judge Robert A. McQuaid Jr. Crtrm Administrator: Rosemary Damron; Pla Counsel: Diane Vaillancourt, via phone; Def Counsel: Jack Campbell; Court Reporter/FTR: FTR 8:55 a.m. - 9:36 a.m.; Time of Hearing: 8:55 a.m.. RE: 38 MOTION to Compel MOTION TO COMPEL TESTIMONY AND REQUEST FOR SANCTIONS, EXPEDITED HEARING REQUESTED; EXHIBITS 1 AND 2 ﬁled by Charla Conn, is granted in part and denied in part. See attached minutes. (RD) (Entered: 07/27/2006)

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44 Submission of PROPOSED ORDER on 43 Motion Hearing,, ; ﬁled by Plaintiffs Charla Conn, Dustin Conn. (Attachments: # 1 Proposed Order Revised Protective Order Pursuant to the Court's Instructions)(Vaillancourt, Diane) (Entered: 08/01/2006)

08/01/2006

45 PROTECTIVE ORDER TO PROTECT CONFIDENTIALITY OF CERTAIN MATERIALS re 44 . Signed by Judge Robert A. McQuaid Jr. on 8/1/2006. (HJ, ) (Entered: 08/01/2006)

08/01/2006

46 MINUTE ORDER IN CHAMBERS of the Honorable Robert A. McQuaid Jr., U.S. Magistrate Judge on 8/1/2006. By Deputy Clerk: GMM. A Discovery Hearing is set on the Court's calendar for Tuesday, August 1, 2006 at 1:30 p.m. The parties have been telephonically notiﬁed. (no image attached) (GMM, ) (Entered: 08/01/2006)

08/01/2006

47 EX PARTE DOCUMENT to 43 Motion Hearing,, ; Renewed Motion to Compel Production of Evidence Underlying Arrests Pursuant Filed Pursuant to Court's Invitation, Exhibits 1-3 ﬁled by Plaintiffs Charla Conn, Dustin Conn. (Vaillancourt, Diane) (Entered: 08/01/2006)

08/01/2006

48 MINUTES OF PROCEEDINGS - Discovery Hearing held on 8/1/2006 before Judge Robert A. McQuaid Jr.. Crtrm Administrator: GMM; Pla Counsel: Diane Vaillancourt; Def Counsel: Jack Campbell; Court Reporter/FTR #: FTR #1:30 p.m. to 1:43 p.m.; Time of Hearing: 1:30 p.m.. The Court addresses the parties and explains the purpose of this hearing is at Ms. Vaillancourt's request and it is about her concern of not having the appropriate documents necessary to complete the doctors' depositions scheduled for Monday, August 7, 2006. The parties present their respective arguments to the Court. The Court advises counsel that one of the inherent problems of attending depositions by telephone is not being able to view documents that are presented for the ﬁrst time at the deposition and that decision should not prejudice the attending parties by making them wait for the document(s) in question to be faxed and reviewed. The Court will not order that counsel for Defendants comply with this request. The Court advises the parties that Plaintiffs' counsel has just this day ﬁled a Renewed Motion to Compel Production of Evidence Supporting Plaintiff?s Arrest of March 19, 2005 47 and, although Defendants have not yet had a chance to review the Motion, the Court GRANTS it. Defendants' counsel advises the Court that he and Ms. Vaillancourt had just discussed this issue, that he was unaware that a motion had been ﬁled and that he has already contacted the appropriate person to ascertain if the photographs exist and, if so, will provide same to Plaintiffs. The Court further orders that if there are no photographs, an afﬁdavit of the custodian of such evidence stating there are no photographs will be ﬁled. Ms. Vaillancourt again asks for Dr. Chappell's report that at the last hearing Mr. Campbell had agreed to provide. Mr. Campbell advises the Court that although he was given two weeks within which to comply with that request, he will provide the information as soon as it is prepared. Ms. Vaillancourt inquires as to the Court's availability on Monday, August 7, 2006 in case problems arise at the depositions. The Court advises the parties that he will be available. There being nothing further, the Court adjourns.(no image attached) (GMM, ) (Entered: 08/01/2006)

08/29/2006

49 MOTION for Summary Judgment by Defendants Ryan Ashton, City of Reno, David Robertson. Responses due by 9/16/2006. (Attachments: # 1 Exhibit # 2 Exhibit # 3 Exhibit # 4 Exhibit # 5 Exhibit)(Campbell, Jack) (Entered: 08/29/2006)

09/13/2006

50 ORDER Scheduling Settlement Conference: Settlement Conference set for 10/23/2006 09:00 AM in Reno Courtroom 2 before Magistrate Judge Robert A. McQuaid Jr.. The settlement conference statements shall be received in RAM chambers, Room 405, not later than 4:00 pm on 10/19/06. Signed by Judge Robert A. McQuaid Jr. on 9/13/06. (WJ, ) (Entered: 09/15/2006)

09/22/2006 52 ORDER STRIKING FILED DOCUMENT(S); P has ﬁled an oppo brief exceeding the

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page limit; Pleading 51 is stricken; P shl hv 15 dys frm the dt of this ord to ﬁle a pleading complying with the rule; in addition P has ﬁled the oppo pldg and nearly 400 pgs as exhibits under seal w/o obtaining leave of crt. Parties shl hv 15 dys to show cause why those docs should not be unsealed, see ord for spec. Signed by Judge Howard D. McKibben on 9/22/06. (JAR, ) (Entered: 09/22/2006)
53 RESPONSE to 49 MOTION for Summary Judgment; ﬁled by Plaintiffs Charla Conn, Dustin Conn. Replies due by 10/9/2006. (Attachments: # 1 Certiﬁcate of Service # 2 Index of Exhibits# 3 Exhibit 1-4# 4 Exhibit 5-8# 5 Exhibit 9-11# 6 Exhibit 12-14# 7 Exhibit 15-17# 8 Exhibit 18-21# 9 Exhibit 24-26)(Vaillancourt, Diane) (Entered: 09/25/2006)
55 MOTION to Extend Time regarding dispositive matter Request for Extension of Time to Reply by Defendants Ryan Ashton, City of Reno, David Robertson. (Campbell, Jack) (Entered: 09/25/2006)
56 ORDER: D's mtn for extn 55 is granted. Ds shall have until 10/20/06, to ﬁle a reply to P's opposition. Signed by Judge Howard D. McKibben on 9/26/06. (WJ, ) (Entered: 09/27/2006)
57 NOTICE of Hearing: A Telephonic Status Conference is scheduled for Thursday, 10/19/2006 at 11:00 a.m. in Reno Courtroom 2 before Magistrate Judge Robert A. McQuaid, Jr. The courtroom deputy, Gina Mugnaini, shall initiate the conference call. At least two days in advance of the hearing, counsel shall notify Ms. Mugnaini of the numbers where they may be reached for the conference call. IT IS SO ORDERED.(no image attached)(RD) (Entered: 10/10/2006)
58 REPLY to Response to 49 MOTION for Summary Judgment; ﬁled by Defendants Ryan Ashton, City of Reno, David Robertson. (Attachments: # 1 Exhibit # 2 Exhibit # 3 Exhibit # 4 Exhibit)(Campbell, Jack) (Entered: 10/13/2006)
59 MINUTES OF PROCEEDINGS - Status Conference held on 10/19/2006 before Judge Robert A. McQuaid Jr.. Crtrm Administrator: GMM; Pla Counsel: Terri Keyser-Cooper; Def Counsel: Jack Campbell; Court Reporter/FTR #: FTR # 11:00 a.m. to 11:04 am; Time of Hearing: 11:00 a.m.. The Court addresses the parties and explains the purpose of this hearing is to determine whether or not there is any real interest in having the scheduled settlement conference. Mr. Campbell advises the Court that defendants wish to proceed to trial in this matter and that any settlement offer would be minimal. In light of this information, the Court orders that the Settlement Conference set for Monday, October 23, 2006 at 9:00 a.m is therefore VACATED. There being nothing further, the Court adjourns. (no image attached) (GMM, ) (Entered: 10/19/2006)
60 NOTICE of Change of Address by Terri Keyser-Cooper. (Keyser-Cooper, Terri) (Entered: 01/02/2007)
61 NOTICE: The jury trial set for March 20, 2007 is vacated and shall be reset at an appropriate time following decision on the pending dispositive motion(s). (no image attached)(BS, ) (Entered: 01/25/2007)
62 ORDER granting 49 Motion for Summary Judgment. Clerk is directed to enter judgment in favor of the defendants and against the plaintiffs. See order for spec. Signed by Judge Howard D. McKibben on 3/8/07. (JW ) (Entered: 03/08/2007)
63 JUDGMENT in favor of Defendants against Plaintiffs. Signed by Clerk Lance S Wilson on 3/8/07. (JW ) (Entered: 03/08/2007)
64 BILL OF COSTS by Defendants Ryan Ashton, City of Reno, David Robertson. Tax or object to Bill of Costs by 3/27/2007. (Attachments: # 1 Exhibit # 2 Exhibit # 3 Exhibit)

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(Campbell, Jack) (Entered: 03/12/2007)
65 OBJECTION to 64 Bill of Costs; and Request for Diminished Award; Exh 1 & 2 ﬁled by Plaintiffs Charla Conn, Dustin Conn. (Vaillancourt, Diane) (Entered: 03/25/2007)
66 NOTICE OF APPEAL as to 62 Order on Motion for Summary Judgment, 63 Judgment by Plaintiffs Charla Conn, Dustin Conn. Filing fee $ 455, receipt number 528095. (Attachments: # 1 Ninth Circuit Docketing Statement# 2 Statement of Representation# 3 Order Appealed From# 4 Judgment Appealed From)(Vaillancourt, Diane) (Entered: 04/03/2007)
67 TRANSMITTAL of Notice of Appeal and Docket Sheet to US Court of Appeals re 66 Notice of Appeal,. (DRM, ) (Entered: 04/04/2007)
68 TRANSMITTAL RETURN of Notice of Appeal from USCA re 66 Notice of Appeal. USCA Case Number 07-15572. (JW ) (Entered: 04/12/2007)
69 USCA ORDER for Time Schedule as to 66 Notice of Appeal (JW ) (Entered: 04/12/2007)
70 CLERK'S MEMORANDUM REGARDING TAXATION OF COSTS re 64 Bill of Costs. Total Amount Allowed: $5,178.65. (JW ) (Entered: 05/02/2007)
71 COSTS TAXED in amount of $ $5,178.65 against Charla Conn, et al.. (JW ) (Entered: 05/02/2007)
72 ORDER of USCA as to 66 Notice of Appeal: SETTING ASSESMENT CONFERENCE, telephonic June 11, 2007 at 10:00 am Paciﬁc time.(DRM, ) (Entered: 05/11/2007)
73 MOTION for Re-Taxation of Costs (70] [71) by Plaintiffs Charla Conn, Dustin Conn. Responses due by 6/1/2007. (Vaillancourt, Diane) Modiﬁed on 5/15/2007 to correct link. (BLG). (Entered: 05/14/2007)
74 VACATED PER # 152 ORDER : ORDER : ORDERED the 73 MOTION for ReTaxation of Costs is administratively closed and may be reopened upon the ﬁling of any notice of remititur in this action. Signed by Judge Howard D. McKibben on 6/7/2007. See ord for spec. (DRM, ) Modiﬁed on 9/19/2012 to denote VACATED (DRM). (Entered: 06/07/2007)
75 ORDER of USCA as to 66 Notice of Appeal, scheduling time to ﬁle answering brief. (DRM) (Entered: 09/05/2007)
76 OPINION of USCA dtd 7/24/2009 as to 66 Notice of Appeal. USDC REVERSED AND REMANDED. USCA Case #07-15572. (PM) (Entered: 07/27/2009)
77 ORDER of USCA as to 66 Notice of Appeal, ﬁled by Charla Conn, Dustin Conn. USCA Case Number 07-15572. Plaintiffs-Appellants shall ﬁle a response to DefendantsAppellees' petition for rehearing en banc. (KO) (Entered: 08/14/2009)
78 ORDER of USCA dtd 1/14/2010 as to 66 Notice of Appeal. Appellee's motion for extension of time to ﬁle a motion to stay mandate, until 1/22/2010, is GRANTED. USCA case #07-15572 . (DRM) (Entered: 01/14/2010)
79 ORDER of USCA dtd 1/27/2010 as to 66 Notice of Appeal (USCA Case Number 0715572). Appellee's motion for a 90-day stay of the issuance of the mandate pending application for writ of certiorari is granted. If such a petition is ﬁled, the stay shall continue until ﬁnal disposition by the Supreme Court. (PM) (Entered: 01/27/2010)
80 ORDER of USCA dtd 3/17/2010 as to 66 Notice of Appeal. The mandate is stayed until May 8, 2010 pending the Appellees ﬁling of a petition for writ of certiorari in the

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Supreme Court. If such a petition is ﬁled, the stay shall continue until ﬁnal disposition by the Supreme Court. USCA case #07-15572 .(DRM) (Entered: 03/17/2010)

03/26/2010

81 NOTICE - Letter from USSC Clerk to USCA Clerk dtd 3/22/2010 extending time within which petition for cert may be ﬁled to May 7, 2010. USSC Application No. 09A882. USCA case #07-15572 . (DRM) (Entered: 03/26/2010)

04/05/2011

82 NOTICE - Letter from USSC Clerk to USCA Clerk dated 04/04/2011. The petition for a writ of certiorari is GRANTED. The judgment is vacated, and the case is REMANDED to the USCA, Ninth Circuit, for further consideration in light of Connick v. Thompson, 563 U.S. ____ (2011). The judgment or mandate of the USSC will not issue for at least twenty-ﬁve days pursuant to Rule 45. Should a petition for rehearing be ﬁled timely, the judgment or mandate will be further stayed pending this Court's action on the petition for rehearing. USCA Case No. 07-15572. re 66 Notice of Appeal. (MLC) (Entered: 04/05/2011)

04/22/2011

83 ORDER of USCA, Ninth Circuit, dtd 4/22/2011 as to 66 Notice of Appeal. Supplemental brieﬁng set. USCA case 07-15572 . (DRM) (Entered: 04/25/2011)

04/29/2011

84 ORDER of USCA, Ninth Circuit as to 66 Notice of Appeal. USCA Case Number 0715572. Appellants' unopposed motion for an extension of time until 5/20/2011 to ﬁle a supplemental brief is GRANTED. Supplemental briefs from both parties will now be due on 5/20/2011. (MLC) (Entered: 04/29/2011)

05/09/2011

85 ORDER of USSC dtd 5/6/2011 granting petition of writ of certiorari; vacating judgment; and remanding to 9th Circuit for further consideration in the light of Connick v. Thompson, 563 U.S. ___ (2011) re USCA Case 07-15572. USSC Case No. 09-1361. (DRM) (Main Document 85 replaced on 5/9/2011) (DRM). Modiﬁed on 5/9/2011 to correct USCA case no. and to bold case no. text(DRM). (Entered: 05/09/2011)

09/08/2011

86 ORDER of USCA, Ninth Circuit dtd 9/6/2011, as to 66 Notice of Appeal (USCA Case No. 07-15572). USCA orders that the USDC's decision is AFFIRMED in part, REVERSED in part, and REMANDED. (PM) (Entered: 09/08/2011)

09/12/2011

87 USCA ORDER dtd 9/12/0211. Costs taxed in amount of $ 574.30 against Appellees Ashton and Robertson only. USCA case 07-15572 . (DRM) (Entered: 09/12/2011)

10/13/2011

88 ORDER of USCA, Ninth Circuit, as to 66 Notice of Appeal (USCA Case No. 07-15572). Appellants' unopposed motion to transfer consideration of attorneys' fees to the district court is hereby GRANTED. (KO) (Entered: 10/13/2011)

10/14/2011

89 ORDER of USCA, Ninth Circuit, as to 66 Notice of Appeal. USCA Case Number 0715572. The petition for rehearing en banc is DENIED. (MLC) (Entered: 10/14/2011)

10/24/2011

90 MANDATE of USCA, Ninth Circuit, dtd 10/24/2011 as to 86 USCA Order Afﬁrming in part and Reversing in part re USCA Case 07-15572. Costs awarded to the appellant in the amount of $574.30. (DRM) (Entered: 10/25/2011)

10/25/2011

91 ORDER on 90 USCA Mandate. Signed by Judge Howard D. McKibben on 10/25/2011. (DRM) (Entered: 10/25/2011)

10/25/2011

92 MINUTE ORDER IN CHAMBERS of The Honorable Judge Howard D. McKibben on 10/25/2011. By Deputy Clerk: Paris Rich. IT IS ORDERED, a Status Conference is set for Wednesday, 11/2/2011 at 10:00 AM in Reno Courtroom 4 before Judge Howard D. McKibben. IT IS SO ORDERED. (no image attached) (Copies have been distributed pursuant to the NEF - PR) (Entered: 10/25/2011)

10/26/2011

93 MINUTE ORDER IN CHAMBERS of the Honorable Chief Judge Robert C. Jones, on 10/26/2011. IT IS ORDERED that this case is reassigned to Magistrate Judge William G.

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Cobb for all further pretrial proceedings within his jurisdiction. Magistrate Judge Robert A McQuaid, Jr. no longer assigned to case. All further documents must bear the correct case number 3:05-cv-595-HDM-WGC. (no image attached) (Copies have been distributed pursuant to the NEF - BLG) (Entered: 10/26/2011)
94 MINUTES OF PROCEEDINGS - Status Conference held on 11/2/2011 before Judge Howard D. McKibben. Crtrm Administrator: Paris Rich; Pla Counsel: Terry KeyserCooper and Diane Vaillancourt (telephonically); Def Counsel: Jack Campbell; Court Reporter: Kathryn French; Time of Hearing: 9:55 AM to 10:03 AM; Courtroom: 4; Counsel are present as indicated. The Court and counsel confer regarding a Trial setting in this matter. IT IS ORDERED, Jury Trial is set for Monday, 3/5/2012 at 9:00 AM in Reno Courtroom 4 before Judge Howard D. McKibben. Calendar Call is set for Wednesday, 2/22/2012 at 9:30 AM in Reno Courtroom 4 before Judge Howard D. McKibben. Proposed Jury Instructions and Proposed Voir Dire shall be due by Monday, 2/27/2012. At the request of the parties, IT IS FURTHER ORDERED, this matter is referred to U.S. Magistrate Judge William Cobb for purposes of a Settlement Conference to be set at a date and time convenient to the Court and counsel. IT IS SO ORDERED. (no image attached) (Copies have been distributed pursuant to the NEF - PR) Modiﬁed on 11/2/2011 (PR). (Entered: 11/02/2011)
95 NOTICE of Association of Counsel by Diane K. Vaillancourt on behalf of Plaintiffs Charla Conn, Dustin Conn. Notice of Association of Peter C. Wetherall, Esq. (Vaillancourt, Diane) (Entered: 11/07/2011)
96 STIPULATION to Vacate Settlement Conference: Order by Defendants Ryan Ashton, David Robertson. (Campbell, Jack) (Entered: 11/08/2011)
97 ORDER APPROVING 96 STIPULATION TO VACATE SETTLEMENT CONFERENCE. The parties jointly request that the order for settlement conference be VACATED. IT IS SO ORDERED. Signed by Judge Howard D. McKibben on 11/8/2011. (Copies have been distributed pursuant to the NEF - PM) (Entered: 11/08/2011)
98 MOTION/REQUEST for order re conﬂicting costs awards and plaintiffs experts testify at trial via video conferencing NOTICE by Plaintiff Charla Conn COMBINED: (1) REQUEST FOR ORDER RE CONFLICTING COSTS AWARDS; AND (2) REQUEST TO HAVE PLAINTIFFS EXPERTS TESTIFY AT TRIAL VIA VIDEO CONFERENCING (Attachments: # 1 Exhibit Exhibits 1-6)(Keyser-Cooper, Terri) Modiﬁed on 12/15/2011 to activate motion. (BLG). (Entered: 12/14/2011)
NOTICE of Docket Correction to 98 Notice event changed to reﬂect MOTION rather than notice 98 NOTICE by Plaintiff Charla Conn COMBINED: (1) REQUEST FOR ORDER RE CONFLICTING COSTS AWARDS; AND (2) REQUEST TO HAVE PLAINTIFFS EXPERTS TESTIFY AT TRIAL VIA VIDEO CONFERENCING (Attachments: # 1 Exhibit Exhibits 1-6)(Keyser-Cooper, Terri). If you have any questions please contact Quality Control at 775-686-5707. (no image attached)(BLG) (Entered: 12/15/2011)
99 First MOTION to Expedite EMERGENCY REQUEST FOR EXPEDITED HEARING RE: COMBINED (1) REQUEST FOR ORDER RE CONFLICTING COSTS AWARDS; AND (2) REQUEST TO HAVE PLAINTIFFS EXPERTS TESTIFY AT TRIAL VIA VIDEO CONFERENCING by Plaintiff Charla Conn. Motion ripe 12/16/2011. (Keyser-Cooper, Terri) (Entered: 12/16/2011)
100 MINUTE ORDER IN CHAMBERS of The Honorable Judge Howard D. McKibben on 12/16/2011. By Deputy Clerk: Paris Rich. IT IS ORDERED, Motion Hearing Re: 99 Emergency Request for Expedited Hearing is set for Tuesday, 12/20/2011 at 10:00

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AM in Reno Courtroom 4 before Judge Howard D. McKibben. IT IS SO ORDERED. (no image attached) (Copies have been distributed pursuant to the NEF PR) (Entered: 12/16/2011)
101 MOTION for Leave to File Amended Expert Disclosure by Defendants Ryan Ashton, David Robertson. Motion ripe 12/19/2011. (Attachments: # 1 Exhibit)(Campbell, Jack) (Entered: 12/19/2011)
102 MINUTES OF PROCEEDINGS - Motion Hearing held on 12/20/2011 before Judge Howard D. McKibben. Crtrm Administrator: Paris Rich; Pla Counsel: Terry KeyserCooper and Diane Vaillancourt (telephonically); Def Counsel: Jack Campbell; Court Reporter: Donna Davidson; Time of Hearing: 9:54 AM to 10:09 AM; Courtroom: 4; At 9:54 AM, the Court convenes. Counsel are present as indicated. The Court addresses Plaintiffs' 98 Motion Re: (1) Request for Order Re: Conﬂicting Costs Awards and (2) Request to Have Plaintiffs' Experts Testify at Trial Via Video Conferencing. The Court and counsel confer. IT IS ORDERED, as to Plaintiffs' request for Order Re: Costs, 98 Motion is RESERVED. The Court defers consideration on any matters involving fees and costs at this time. IT IS SO ORDERED.
The Court and counsel further confer regarding the Plaintiffs' remaining expert request in 98 Motion and Defendants' 101 Motion for Leave to Amend Expert Disclosure. IT IS ORDERED, the request of both parties to substitute expert witnesses is GRANTED IN PART and RESERVED IN PART. Speciﬁcally, the Court reserves as to the qualiﬁcations of the parties' proposed experts. IT IS SO ORDERED. The Court further states that as a result of the parties' late requests, there may be a possibility of Trial delay. The parties conﬁrm their understanding. The Court and counsel continue to confer. IT IS FURTHER ORDERED, all designations and Rule 26 disclosures shall be completed no later than 1/16/2012. Thereafter, all depositions shall be completed no later than 2/1/2012. IT IS SO ORDERED.
Pursuant to Ms. Keyser-Cooper's statements, the Court inquires regarding the availability of Deputy Chief Evans and James Johns (Retired). Mr. Campbell conﬁrms that Mr. Evans will be available. Mr. Campbell further states he has received authority to accept a subpoena on behalf of James Johns. Lastly, Ms. Vaillancourt inquires as to Kelly Fox. Mr. Campbell conﬁrms Ms. Fox remains employed with the Reno Police Department, and a subpoena for her appearance may be delivered to the Internal Affairs Department. The Court recites closing comments. At 10:09 AM, the Court adjourns. (Copies have been distributed pursuant to the NEF - PR) (Entered: 12/29/2011)
103 NOTICE of Change of Address by Terri Keyser-Cooper. NOTICE OF CHANGE OF ADDRESS FOR COUNSEL TERRI KEYSER-COOPER (Keyser-Cooper, Terri) (Entered: 12/30/2011)
104 NOTICE: Attorney Action Required to 103 Notice of Change of Address. Attorney Terri Keyser-Cooper advised to comply with special order 109 and update her user account information in CMECF. The new address in document 103 is different then the address on the docket sheet. Please comply with your notice and special order 109 and update your account. (no image attached)(WJ) (Entered: 12/30/2011)
105 ORDER REGARDING TRIAL. Jury Trial is set for Monday, 3/5/2012 at 9:00 AM in Reno Courtroom 4 before Judge Howard D. McKibben. Calendar Call currently set for 2/22/2012 at 9:30 a.m. is ADVANCED and RESET for Wednesday, 2/15/2012 at 10:30 AM in Reno Courtroom 4 before Judge Howard D. McKibben. Proposed Joint Pretrial Order is due by Wednesday, 2/8/2012. Motions In Limine are due pursuant to Local Rule. Proposed Voir Dire and Proposed Jury Instructions are due by

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Monday, 2/27/2012. IT IS SO ORDERED. Signed by Judge Howard D. McKibben on 1/4/2012. (Copies have been distributed pursuant to the NEF - PR) (Entered: 01/04/2012)
106 ORDER FOR PREPARATION OF JURY INSTRUCTIONS. IT IS ORDERED that all proposed jury instructions are required to be ﬁled and served by Monday, February 27, 2012. Jury instructions are to be submitted in the format instructed herein this order. Signed by Judge Howard D. McKibben on 1/4/2012. (Copies have been distributed pursuant to the NEF - KO) (Entered: 01/04/2012)
107 MOTION in Limine by Plaintiffs Charla Conn, Dustin Conn. Responses due by 2/3/2012. (Attachments: # 1 Exhibit Exhibits 1-5)(Vaillancourt, Diane) (Entered: 01/17/2012)
108 MOTION to Extend Time regarding discovery/nondispositive matter (First Request) Motion to Extend Time to File an Opposition to Plaintiffs' Motions in Limine by Defendants Ryan Ashton, David Robertson. Motion ripe 1/31/2012. (Campbell, Jack) (Entered: 01/31/2012)
109 RESPONSE to 108 MOTION to Extend Time regarding discovery/nondispositive matter (First Request) Motion to Extend Time to File an Opposition to Plaintiffs' Motions in Limine MOTION to Extend Time regarding discovery/nondispositive matter (First Request) Motion to Extend Time to File an Opposition to Plaintiffs' Motions in Limine, ﬁled by Plaintiffs Charla Conn, Dustin Conn. OBJECTION TO EXTENSION Replies due by 2/10/2012. (Vaillancourt, Diane) (Entered: 01/31/2012)
110 ORDER. IT IS HEREBY ORDERED that the 108 motion for an extension of time is GRANTED. Defendants shall have up to and including February 15, 2012, in which to ﬁle a response to the plaintiff's 107 motions in limine. Signed by Judge Howard D. McKibben on 1/31/2012. (Copies have been distributed pursuant to the NEF - KO) (Entered: 02/01/2012)
111 AMENDED ORDER REGARDING TRIAL. Jury Trial is set for Monday, 3/5/2012 at 9:00 AM in Reno Courtroom 4 before Judge Howard D. McKibben. Calendar Call is set for Wednesday, 2/15/2012 at 10:30 AM in Reno Courtroom 4 before Judge Howard D. McKibben. Proposed Voir and Proposed Jury Instructions due by 2/27/2012. IT IS SO ORDERED. Signed by Judge Howard D. McKibben on 2/3/2012. (Copies have been distributed pursuant to the NEF - PR) (Entered: 02/03/2012)
112 MOTION To Extend Voir Dire by Plaintiffs Charla Conn, Dustin Conn. Responses due by 2/24/2012. (Attachments: # 1 Appendix Attachment 1: Plaintiffs' Proposed Voir Dire) (Vaillancourt, Diane) (Entered: 02/07/2012)
113 PROPOSED Pretrial Order JOINT by Plaintiffs Charla Conn, Dustin Conn. (Vaillancourt, Diane) (Entered: 02/08/2012)
114 JOINT PRETRIAL ORDER - GRANTING 113 Proposed Joint Pretrial Order: Jury Trial set for 3/5/2012 09:00 AM in Reno Courtroom 4 before Judge Howard D. McKibben. Calendar Call set for 2/15/2012 10:30 AM in Reno Courtroom 4 before Judge Howard D. McKibben. Proposed Jury Instructions due by 2/27/2012. Proposed Voir Dire due by 2/27/2012. Signed by Judge Howard D. McKibben on 2/9/2012. (Copies have been distributed pursuant to the NEF - MLC) Modiﬁed on 2/9/2012 to clarify date. (MLC). (Entered: 02/09/2012)
115 RESPONSE to 107 MOTION in Limine, ﬁled by Defendants Ryan Ashton, David Robertson. (Campbell, Jack) (Entered: 02/15/2012)
116 MINUTES OF PROCEEDINGS - Calendar Call held on 2/15/2012 before Judge Howard D. McKibben. Crtrm Administrator: Paris Rich; Pla Counsel: Terri Keyser-Cooper, Diane Vaillancourt (telephonically) and Peter Wetherall (telephonically); Def Counsel: Jack

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Campbell; Court Reporter: Kathryn French; Time of Hearing: 10:50 AM to 11:06 AM; Courtroom: 4; Counsel are present as indicated. The Court inquires as to Trial readiness of this matter. Mr. Campbell and Ms. Keyser-Cooper conﬁrm the parties are ready for Trial. The Court addresses pending 107 Plaintiffs' Motions in Limine and 112 Plaintiffs' Motion to Extend Voir Dire. IT IS ORDERED, 112 Motion is DENIED. The Court conﬁrms the parties may ﬁle proposed voir dire no later than 2/27/2012. The Court addresses proposed Jury Instructions to be submitted in accordance with 106 Order Regarding Jury Instructions. Ms. Keyser-Cooper addresses the time line for the Court's rulings on 107 Motions in Limine. The Court recites statements and reserves on ruling of 107 Motions at this time. Mr. Campbell presents statements regarding Ofﬁcers Johns, Evans and Fox. Ms. Keyser-Cooper conﬁrms Plaintiffs will not be calling Ofﬁcer Fox for Trial. Ms. Keyser-Cooper further states Sergeant Evans and Deputy Chief Johns are relevant as witnesses for Trial. IT IS ORDERED, Sergeant Evans and Deputy Chief Johns are under subpoena and will remain under subpoena. The Court advises if this matter resolves, the parties shall contact the Court. The Court and counsel further confer as to the anticipated time line for Trial. IT IS ORDERED, Jury Trial (6 day estimate) remains on the Court's calendar to commence on Wednesday, 3/7/2012 at 9:00 AM. The parties will be contacted by the Courtroom Clerk forthwith if the Trial is advanced to Monday, 3/5/2012 at 9:00 AM. IT IS SO ORDERED. (no image attached) (Copies have been distributed pursuant to the NEF - PR) (Entered: 02/21/2012)

02/27/2012

117 PROPOSED Voir Dire by Plaintiffs Charla Conn, Dustin Conn.(Vaillancourt, Diane) (Entered: 02/27/2012)

02/27/2012

118 PROPOSED Jury Instructions by Plaintiffs Charla Conn, Dustin Conn ; Proposed Special Verdict.(Vaillancourt, Diane) (Entered: 02/27/2012)

02/27/2012

119 PROPOSED Jury Instructions by Plaintiffs Charla Conn, Dustin Conn JOINT INSTRUCTIONS.(Vaillancourt, Diane) (Entered: 02/27/2012)

02/27/2012

120 Emergency MOTION to Continue District Judge Hearing Emergency Motion to Continue Trial by Defendants Ryan Ashton, David Robertson. Motion ripe 2/27/2012. (Campbell, Jack) (Entered: 02/27/2012)

02/27/2012

121 RESPONSE to 120 Emergency MOTION to Continue District Judge Hearing Emergency Motion to Continue Trial, ﬁled by Plaintiffs Charla Conn, Dustin Conn. with Exhibits 1, 2 & 3 Replies due by 3/8/2012. (Vaillancourt, Diane) (Entered: 02/27/2012)

02/28/2012

122 MINUTE ORDER IN CHAMBERS of The Honorable Judge Howard D. McKibben on 2/28/2012. By Deputy Clerk: Paris Rich. IT IS ORDERED, a Telephonic Status Conference is set for Wednesday, 2/29/2012 at 9:00 AM in Reno Courtroom 4 before Judge Howard D. McKibben. Participants shall call AT&T no later than 5 minutes prior to the hearing at 1 (877) 336-1839 and provide Access Code 3246567 and Security Code 0110. IT IS SO ORDERED.(no image attached) (Copies have been distributed pursuant to the NEF - PR) (Entered: 02/28/2012)

02/28/2012

123 PROPOSED Pretrial Order Defendants' Supplemental Pretrial Order - List of Trial Exhibits by Defendants Ryan Ashton, David Robertson. (Campbell, Jack) (Entered: 02/28/2012)

02/28/2012 124 PROPOSED Voir Dire by Defendants Ryan Ashton, David Robertson.(Campbell, Jack) (Entered: 02/28/2012)

02/29/2012

125 OBJECTION to Defendants' Unilateral Tardy JPO Amendment Filed Without Cause or Justiﬁcation ﬁled by Plaintiffs Charla Conn, Dustin Conn. (Vaillancourt, Diane) (Entered: 02/29/2012)

02/29/2012 126 MINUTES OF PROCEEDINGS - Telephonic Status Conference held on 2/29/2012

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before Judge Howard D. McKibben. Crtrm Administrator: Paris Rich; Pla Counsel: Terri Keyser-Cooper, Diane Vaillancourt and Peter Wetherall; Def Counsel: Jack Campbell; FTR Reporter: 8:59:30 to 9:36:54; Courtroom: 4; See attached Minutes with Orders. Jury Trial RESET for Wednesday, 3/7/2012 at 8:00 AM in Reno Courtroom 4 before Judge Howard D. McKibben. (Copies have been distributed pursuant to the NEF - PR) (Entered: 03/05/2012)
127 MINUTES OF PROCEEDINGS - Jury Trial (Day One) held on 3/7/2012 before Judge Howard D. McKibben. Crtrm Administrator: Paris Rich; Pla Counsel: Terri KeyserCooper, Diane Vaillancourt and Peter Wetherall; Def Counsel: Jack Campbell; Court Reporter: Kathryn French; Time of Hearing: 8:06 AM to 11:40 AM; 12:45 PM to 4:49 PM; Courtroom: 4; SEE ATTACHED MINUTES AND ORDERS. Jury Trial (Day Two) is set for Thursday, 3/8/2012 at 8:55 AM in Reno Courtroom 4 before Judge Howard D. McKibben. (Copies have been distributed pursuant to the NEF - PR) (Entered: 03/07/2012)
129 MINUTES OF PROCEEDINGS - Jury Trial (Day Two) held on 3/8/2012 before Judge Howard D. McKibben. Crtrm Administrator: Paris Rich; Pla Counsel: Terri KeyserCooper, Diane Vaillancourt, Peter Wetherall; Def Counsel: Jack Campbell; Court Reporter: Kathryn French; Time of Hearing: 8:52 AM to 11:42 AM; 12:47 PM 4:57 PM; Courtroom: 4; SEE ATTACHED MINUTES AND ORDERS. Jury Trial (Day Three) is set for Friday, 3/9/2012 at 8:40 AM in Reno Courtroom 4 before Judge Howard D. McKibben. (Copies have been distributed pursuant to the NEF - PR) (Entered: 03/08/2012)
130 MINUTES OF PROCEEDINGS - Jury Trial (Day Three) held on 3/9/2012 before Judge Howard D. McKibben. Crtrm Administrator: Paris Rich; Pla Counsel: Terri Keyser-Cooper, Diane Vaillancourt and Peter Wetherall; Def Counsel: Jack Campbell; Court Reporter: Kathryn French; Time of Hearing: 8:48 AM to 12:05 PM; 1:15 PM to 4:32 PM; Courtroom: 4; SEE ATTACHED MINUTES AND ORDERS. Jury Trial (Day Four) is set for Monday, 3/12/2012 at 8:30 AM in Reno Courtroom 4 before Judge Howard D. McKibben. (Copies have been distributed pursuant to the NEF - PR) (Entered: 03/09/2012)
131 MINUTES OF PROCEEDINGS - Jury Trial (Day Four) held on 3/12/2012 before Judge Howard D. McKibben. Crtrm Administrator: Paris Rich; Pla Counsel: Terri Keyser-Cooper, Diane Vaillancourt and Peter Wetherall; Def Counsel: Jack Campbell; Court Reporter: Kathryn French; Time of Hearing: 8:31 AM to 11:16 AM; Courtroom: 4; SEE ATTACHED MINUTES AND ORDERS. Jury Trial (Day Five) is set for Tuesday, 3/13/2012 at 8:30 AM in Reno Courtroom 4 before Judge Howard D. McKibben. (no image attached) (Copies have been distributed pursuant to the NEF PR) (PR). (Entered: 03/12/2012)
135 JUDICIAL NOTICE - NRS 484D.495 (DRM) (Entered: 03/14/2012)
132 PLAINTIFFS' PROPOSED SUPPLEMENTAL JURY INSTRUCTIONS.(DRM) (Entered: 03/13/2012)
133 OBJECTION TO QUALIFIED IMMUNITY JURY INSTRUCTION, by Plaintiffs Charla Conn, et al.(DRM) (Entered: 03/13/2012)
134 MINUTES OF PROCEEDINGS - Jury Trial (Day Five) held on 3/13/2012 before Judge Howard D. McKibben. Crtrm Administrator: Paris Rich; Pla Counsel: Terri Keyser-Cooper, Diane Vaillancourt, Peter Wetherall; Def Counsel: Jack Campbell; Court Reporter: Kathryn French; Time of Hearing: 8:29 AM to 11:54 AM; 1:15 PM to 2:56 PM; Courtroom: 4; SEE ATTACHED MINUTES AND ORDERS. Jury Trial (Day Six) is set for Wednesday, 3/14/2012 at 8:15 AM in Reno Courtroom 4 before Judge

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Howard D. McKibben. (Copies have been distributed pursuant to the NEF - PR) (Entered: 03/13/2012)
136 JUDICIAL NOTICE - NRS 433A.115; NRS 458.270; NRS 433A.160; NRS 458.250; and NRS 458.260 (DRM) (Entered: 03/14/2012)
137 MINUTES OF PROCEEDINGS - Jury Trial (Day Six) held on 3/14/2012 before Judge Howard D. McKibben. Crtrm Administrator: Paris Rich; Pla Counsel: Terri KeyserCooper, Diane Vaillancourt, Peter Wetherall; Def Counsel: Jack Campbell; Court Reporter: Kathryn French; Time of Hearing: 8:20 AM to 3:29 PM; Courtroom: 4; SEE ATTACHED MINUTES AND ORDERS. Judgment is entered in favor of the Defendants and against the Plaintiffs. (Attachments: # 1 Exhibit, # 2 Exhibit) (Copies have been distributed pursuant to the NEF - PR) (Entered: 03/14/2012)
141 JURY INSTRUCTIONS.(DRM) (Entered: 03/15/2012)
142 SUPPLEMENTAL JURY INSTRUCTION #1.(DRM) (Entered: 03/15/2012)
144 SPECIAL VERDICT.(DRM) (Entered: 03/15/2012)
145 JUDGMENT is entered in favor of the Defendants and against the Plaintiffs. Signed by Clerk of Court, Lance S. Wilson on 3/14/2012. (Copies have been distributed pursuant to the NEF - DRM) (Entered: 03/15/2012)
146 BILL OF COSTS by Defendants Ryan Ashton, David Robertson. Tax or object to Bill of Costs by 4/8/2012. (Campbell, Jack) (Entered: 03/21/2012)
147 OBJECTION to 146 Bill of Costs ; COMBINED WITH MOTION TO DENY COSTS ﬁled by Plaintiffs Charla Conn, Dustin Conn. (Vaillancourt, Diane) (Entered: 03/29/2012)
148 ORDER - Clerk of court shall proceed to tax costs pursuant to FRCP 54(d) and LR 54-1 and 54-13. Re: 146 Bill of Costs; 147 Objection to Bill of Costs. Signed by Judge Howard D. McKibben on 5/7/2012. (Copies have been distributed pursuant to the NEF - DRM) (Entered: 05/08/2012)
149 COSTS TAXED in amount of $3,405.05 for defendants Ashton and Robertson and against plaintiffs re 146 Bill of Costs. (MLC) Modiﬁed on 7/25/2012 to correct ﬁling date. (MLC). (Entered: 07/25/2012)
150 CLERK'S MEMORANDUM Regarding Taxation of Costs re 149 Bill of Costs. (MLC) (Entered: 07/25/2012)
151 MOTION for Re-Taxation of Costs by Plaintiffs Charla Conn, Dustin Conn. Responses due by 8/16/2012. (Vaillancourt, Diane) (Entered: 07/30/2012)
152 ORDER : 1. The court's order dated June 7, 2007 (# 74 ) administratively closing the plaintiffs' motion to retax (# 73 ) is VACATED. 2. The plaintiffs' request for an order resolving outstanding cost awards (# 98 ) is DENIED AS MOOT as to the Supreme Court and Court of Appeals cost awards, but is GRANTED in all other respects. 3. The plaintiffs motions to retax (# 73 ), to deny costs(# 147 ) and to retax (# 151 ) are GRANTED in part. Costs are awarded in favor of the defendants and against the plaintiffs in the amount of $2,822.53. Signed by Judge Howard D. McKibben on 9/19/2012. (Copies have been distributed pursuant to the NEF - DRM) Modiﬁed on 9/19/2012 for spacing (DRM). (Entered: 09/19/2012)
153 MINUTE ORDER IN CHAMBERS of the Honorable Judge Howard D. McKibben, on

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4/29/2013. The Court currently has custody of exhibits in this action. It having been determined these exhibits can be returned to the parties in accordance with LR 79-1, IT IS HEREBY ORDERED that the parties have 21 days from the date of this Order within which to claim the exhibits from the Clerk of Court in accordance with said Local Rule or said exhibits shall be destroyed by the Court. Please contact the Clerk's Ofﬁce in Reno at (775) 686-5800 to make arrangements to have the exhibits picked up or said exhibits shall be destroyed by the Court. Deadline to return exhibits set for 5/20/2013.(no image attached) (Copies have been distributed pursuant to the NEF - DRM) (Entered: 04/29/2013)

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 </s> Supreme Court, U.S.
F I LE D
NO' _ _~rDr9136 I H~ 6 - ZOO

)n ItlJPFFICE OF THE CLERK
&upremt ~ourt of tbe llntteb &tate~
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CITY OF RENO , RYAN ASHTON, and DAVID ROBERTSON,
Petitioners, v.
CHARLA and DUSTIN CONN,
Respondents.

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On Petition For A Writ Of Certiorari To The United States Court OfAppeals
For The Ninth Circuit
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PETITION FOR A WRIT OF CERTIORARI
- - -t - --

STI-.:PHAI\'OS BIBAS NAt'l'CY BREGSTEIN GORDO~
UNIVERSITY OF PENNSYLVAN' IA
LAw SCHOOL SUPREME
COURTCUNTC
3400 Chestnut Street Philadelphia, PA 19104 (215) 746·2297 sbibas@law.upen n.edu

JOHN J. KADLIC Coutlsel of Record
D ONALD L . CHRISTENSEN CITY OF RENO
Post Office Box 1900 Reno, NY 89505 (775 ) 334·2050 kadlicj@reno.gov
Counsel for Petitioners

COCKLE Ur.W DR"':" PK1 N TI:-IO 00 !_ ' 22M>964 OR CA I.I. COI.U:l." I ~ 02' 311·21\3 1

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QUESTIONS PRESENTED
In City of Canton v. Harris, this Court foreclosed § 1983 liability for inadequate police training unless "the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact." 489 U.S. 378, 388 (1989). Justice O'Connor, concurring in relevant part, noted that a claim "that police officers were inadequately trained in diagnosing the symptoms of emotional illness [] falls far short of the kind of lobvious' need for training that would support a finding of deliberate indifference. . . ." [d. at 396-97. In the instant case, six sets of medical professionals performed medical, mental-health, and suicide-prevention evaluations of a detainee in the days before her suicide. Nevertheless, the Ninth Circuit below held that the City of Reno may be found liable for not training its police officers to diagnose and report detainees' symptoms of
suicidal tendencies. The questions presented are:
1. Must a city train its law-enforcement officers to diagnose and report detainees' symptoms of suicidal tendencies, in order to avoid municipal liability under the Fourteenth Amendment's Due Process Clause and 42 U.S.C. § 1983?
II. Must law-enforcement officers diagnose and report detainees' symptoms of suicidal tendencies, in order to avoid individual liability under the Fourteenth Amendment's Due Process Clause and 42 U.S.C. § 1983?

11
PARTIES TO THE PROCEEDING
Petitioners are the City of Reno and two members of the Reno Police Department, Officers Ryan Ashton and David Robertson. Petitioners were defendants-appellees below.
Respondents are Dustin Conn, adult son of decedent Brenda Jean Clustka; and Charla Conn, adult daughter and special administrator of the estate of decedent. Respondents were plaintiffs-appellants below.

III
TABLE OF CONTENTS Page
QUESTIONS PRESENTED .................................. I
PARTIES TO THE PROCEEDING ....................... II
TABLE OF CONTENTS............................ ............ III TABLE OF AUTHORITIES ................................... VII
OPINIONS BELOW............................................... 1 JURISDICTION ..................................................... 1
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ............................................. 2
STATEMENT OF THE CASE................................ 2
A. Factual Background .................................... 3
B. Proceedings Below....................................... 10
REASONS FOR GRANTING THE WRIT ............. 15
ARGUMENT..................... .... ...... .......... .... ... ...... .... . 17 1. THE NINTH CIRCUIT'S DECISION CONFLICTS WITH CITY OF CANTON v. HARRIS, EXACERBATING A SUBSTANTIAL CIRCUIT SPLIT OVER § 1983 MUNICIPAL LlABILITY FOR NOT TRAINING LAW-ENFORCEMENT OFFICERS TO DlAGNOSE SUICIDE RISK ....................... 17
A. Since Harris, the Circuits Have Divided 5-2 Over a Municipality's Duty to Give Officers Suicide-Diagnosis TrainIng ............ .. .. .......................................... 18

IV
TABLE OF CONTENTS - Continued
Page
1. Five Federal Courts of Appeals Have Rejected Municipal Liability for Failure to Train Officers to Diagnose Detainees' Suicidal Tendencies .......... ..... ............................. .. 18
2. Two Courts of Appeals Have Allowed Municipal Liability for Failure to 'Train Officers to Diagnose Suicidal Tendencies in Detainees .... 22
3. The Split Is Mature, Entrenched, and Ripe for Resolution by This Court .......... ,................ .. ... .,"",.......... 23
B. The Ninth Circuit's Decision Is Erroneous...................................... .................... 24
1. The Decision Below Conflicts with Harris ........ .............................. .. ........ 24
2. The Decision Below Contravenes the Principles of Federalism Reflected in Harris .... ".............. .... ....... 27
II. THE NINTH CIRCUIT ERRONEOUSLY IMPOSED ON OFFICERS A NEW CONSTITUTIONAL DUTY TO DIAGNOSE AND REPORT SUICIDAL TENDENCIES, CREATING A CIRCUIT SPLIT .................. 28
A. The Decision Below Conflicts with Circuit Decisions That Reject Liability for Law-Enforcement Officers' Mere Failure to Diagnose and Communicate Suicide Information.............................. . 29

v
TABLE OF CONTENTS - Continued
Page
1. Other Circuit Decisions Have Held That Officers' Failure to Diagnose and Report Suicidal Tendencies Does Not Amount to Deliberate Indifference....................................... 29
2. The Decision Below Created a Circuit Conflict, Holding Officers Liable for Failing to Diagnose and Share Suicide Information with Jailers .................................. .. ........... 32
B. The Ninth Circuit Erred by Relaxing the Deliberate-Indifference Standard to Include Mere Negligence and by Diluting the Protections of Qualified Immunity ............................................... 32
1. Deliberate Indifference Requires More Than Care]ess Failure to Cummunicate Potentially Relevant Medical Information... .... .................. 33
2. Officers Ashton and Robertson Are Entitled to Qualified Immunity, As the Ninth Circuit's Novel Constitutional Duty Was Not Clearly Established Law at the Time........... 36
III. THE BOUNDS OF MUNICIPALITIES' AND OFFICERS' CONSTITUTIONAL DUTIES TO DETAINEES ARE IMPORTANT AND RECURRING QUESTIONS............... 37
A. These Issues Affect Thousands of Local
Law-Enforcement Agencies ....... ... ......... 37

TABLE OF CONTENTS - Continued Page
B. Guidance Is Especially Important Given the Frequency of Alcohol-Related Arrests ....... ................................ ....... ..... 38
IV THIS CASE IS AN EXCELLENT VEHICLE.................................................... ...... 39
CONCLUSION .................................................. ... .. 41
APPENDIX
Appendix A: Conn v. Reno, 591 F.3d 1081 (9th Cir. Jan. 8, 2010): Ninth Circuit's Amended Opinion, Denial of Rehearing En Banc, and Dissent from Denial of Rehearing En Banc ..... App. 1
Appendix B: Conn v. Reno (D. Nev. Mar. 8,
2007): District Court's Order Granting Defendants'Motion for Summary Judgment .......... App. 54

Vll

TABLE OF AUTHORITIES

Page

CASES
Anderson v. Creighton. 483 U.S. 635 (1987) .......... .. ..36
Barber v. City of Salem . 953 F.2d 232 (6th Cir. 1992) ............. ............................................. ........20.23
Bell v. Wolfish. 441 U.S. 520 (1979) ........................ ... 29
Boncher ex reI. Boncher v. Brown Cty.• 272 F.3d 484 (7th Cir. 2001) .................................................. 20
Burns v. City of Galueston. 905 F.2d 100 (5th Cir. 1990) .......... ................................................. 19.23
City of Canton v. Harris. 489 U.S. 378 (1989) ...passim
City of Reuere v. Mass. Gen. Hosp.• 463 U.S. 239 (1983) ................................................................29
Conn v. City of Reno. 572 F.3d 1047 (9th Cir. 2009) .......................................... .... .... ........................1
Conn v. City of Reno, 591 F.3d 1081 (9th Cir. 2010) .................................................. .............. passim
County of Sacramento v. Lewis. 523 U.S. 833 (1998) .......................................... .............................40
Dauidson v. Cannon. 474 U.S. 344 (1986)............................................... 16.33.34.35.36
Elliott v. Chester County. 940 F.2d 7 (1st Cir. 1991) ... .... .. .........................................................31.36
Estelle v. Gamble. 429 U.S. 97 (1976) ..................28.33
Farmer v. Brennan. 511 U.S. 825 (1994) .......29. 33. 35
Freedman v. City of Allentown. 853 F.2d 1111 (3d Cir. 1998) ................... ...................... 30.31.35.36

Vlll
TABLE OF AUTHORITIES - Continued Page
Gregg v. Georgia, 428 U.S. 153 (1976) .......................28 Harlow v. Fitzgerald, 457 U.S. 800 (1982)...... ........... 36 Hunter v. Bryant, 502 U.S. 224 (1991).... .. ................ .40 Manarite ex rel. Manarite v. City of Spring{teld,
957 F.2d 953 (1st Cir. 1992)................ ..............21, 23 Mitchell v. Forsyth, 472 U.S. 511 (1985) ....................40 Popham v. City of Talladega, 908 F.2d 1561
(llth Cir. 1990).......... ....................... .. .........19, 20, 23 Scott v. Harris, 550 U.S. 372 (2007) .......... .... ............. 40 Simmons v. City of Philadelphia, 947 F.2d 1049
(3d Cir. 1991)............... .......... ...... .............. ........22, 23 United States v. Lanier, 520 U.S. 259 (1997).............36 Whitley v. Albers, 475 U.S. 312 (1986) ............ ...........33 Williams v. Borough of Westchester, 891 F.2d
458 (3d Cir. 1989) ........................................30, 31, 36 Wilson v. Layne , 526 U.S. 603 (1999) .........................36
CONSTITUTIONAL AND STATUTORY PROVISIONS
U.S. Const. amend. VIII ................................. 28, 29, 34
U.S. Const. amend. ]{N, § 1 ................. 2, 16, 28, 34, 35 28 U.S.C. § 1254(1) ........ .. .............. ... ........ .. ..................1 28 U.S.C. § 1291 ... ....... .. ...................... ...... ................ .40 42 U.S.C. § 1983 ......................... ....... ........ ..... ....passim Nev. Rev. Stat. § 433A.115 (West 2009) ... ....................5

IX
TABLE OF AUTHORITIES - Continued Page
Nev. Rev. Stat. § 433A.150 (West 2009) ....................... 5 Nev. Rev. Stat. § 433A.160 (West 2009) ....................... 5 Nev. Rev. Stat. § 433A.165 (West 2009) .......................5 Nev. Rev. Stat. § 458.270 (West 2009)..........................4
OTHER A UTHORITIES
Christopher J. Mumola, Suicide and Homicide in State Prisons and Local Jails (Aug. 2005) ......... .4
Lindsay M. Hayes, Technical Assistance Report on Suicide Prevention Practices Within the Washoe County Jail (Sept. 13,2005) ........................ 5
Sourcebook of Criminal Justice Statistics Online ....................................................... .......... 3, 38, 39

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1
PETITION FOR A WRIT OF CERTIORARI
The City of Reno, Ryan Ashton, and David Robertson respectfully petition fOT a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case.
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OPINIONS BELOW
The original opinion of the Ninth Circuit panel is reported at 572 F.3d 1047 (9th Cir. 2009). The amended panel opinion, denial of rehearing and rehearing en bane, and dissent from denial of rehearing en bane are reported at 591 F.3d 1081 (9th Cir. 2010) and reprinted at App. 1. The district court's order granting Defendants' Motion for Summary Judgment, filed on March 8, 2007, is unpublished but reprinted at App. 54.
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JURISDICTION
The court of appeals entered its judgment on July 24, 2009. It denied a petition for rehearing and rehearing en bane on January 8, 2010, and also amended its panel opinion on that day. On March 22, 2010, Justice Kennedy granted Application No. 09A882, extending the time within which to file a petition for writ of certiorari until and including May 7,2010. This Court has jurisdiction und er 28 U.S.C. § 1254(1).
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2
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
The Due Process Clause of Section 1 of the Fourteenth Amendment to the U.S. Constitution provides: "nor shall any State deprive any person of life, liberty, or property, without due process oflaw. ..."
42 U.S.C. § 1983 provides, in relevant part:
Every person who, under color of any statute , ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. ...
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STATEMENT OF THE CASE
This case presents two important and recurring questions of § 1983 liability on which the federal courts of appeals are intractably divided. There is an entrenched 5-2 split on whether municipalities may be held liable for failing to train law-enforcement officers to diagnose detainees' suicidal tendencies. Judge Reinhardt's opinion for the Ninth Circuit, holding that municipalities can be held liable, aggravates "a clear inter-circuit split and is irreconcilable with the standard for liability fashioned by the Supreme Court in City of Canton v. Harris, 489 U.S. 378

3
(1989)." Conn, 591 F.3d at 1086, App. 5 (Kozinski, C.J., dissenting from denial of rehearing en bane).
By joining the minority side of the split and denying rehearing en bane over the dissent of seven judges, the Ninth Circuit has deepened and entrenched that split. The panel's opinion also creates a circuit split on whether law-enforcement officers must diagnose and communicate detainees' symptoms of suicidal tendencies or be held individually liable.
Both issues recur frequently, affecting well over a million law-enforcement officers and more than fourteen million arrests across the country each year. The issues are also crucially important. Judge Reinhardt's opinion imposes novel, undefmed. and potentially costly psychiatric-training duties on thousands of cities and towns throughout the nine states in the Ninth Circuit. It obligates officers to make nuanced psychiatric diagnoses, even where (as here) medical professionals repeatedly screen a detainee for suicide risk. Only this Court can resolve these conflicts and give needed, uniform guidance to cities and police departments across the country.
A. Factual Background
1. In 2005, police arrested 14.1 million persons for non-traffic offenses, including 3.4 million for alcoholrelated offenses or driving under the influence. On a typical day in mid-2005, more than 747,000 inmates were detained in local jails. Sourcebook of Criminal Justice Statistics Online, tbls. 4.1.2005, 4.27.2005,

4
6.13.2005, availabl£ at http://www.albany.edulsourcebook/ pcWt412005.pdf, http://www.albany.edulsourcebook/pcW t4272005.pdf, http://www.albany.edulsourcebook/pdfl t6132005.pdf. Nationwide, 286 local jail inmates committed suicide in 2005. Id. tbl. 6.0012.2005, available at http://www.albany.edulsourcebook/pdflt600122005. pdf. That number is less than 0.04% of the daily jail population, less than 0.009% of alcohol-related 8rrestees, and 0.002% of all arrestees that year.
States and municipalities, including Reno, Nevada, have made substantial progress in addressing the problem of jail suicides, lowering the U.S. jail-suicide rate by almost two-thirds between 1983 and 2002. Thus, suicide is no longer the leading cause of death in jail. Christopher J. Mumola, Bureau of Justice Statistics, Suicide and Homicide in State Prisons and Local Jails I, 2 tbl. (Aug. 2005), available at http}/ bjs.ojp.usdoj.gov/contentlpub/pdflshsplj.pdf.
2. The State of Nevada has adopted two comprehensive procedures to protect intoxicated and mentally ill arrestees and inmates from harming themselves or others. First, peace officers must place publicly intoxicated persons who cannot care for their own health or safety in civil protective custody (CPC) for up to 48 hOUTS. Nev. Rev. Stat. § 458.270 (West 2009). If intoxicated persons need emergency medical treatment, officers must first bring them to secure detoxification or emergency medical facilities before taking them to jail. Id.

5
Second, to protect the mentally ill, Nevada law authorizes a measure called a Legal 2000 hold. This protective measure authorizes officers to take into custody mentally ill persons who appear to present a clear and present danger of harm to themselves or others. Nev. Rev. Stat. §§ 433A.1l5, 160 (West 2009). Under a Legal 2000 hold, officers must first bring mentally ill persons to doctors, physicians' assistants, or registered nurses to be evaluated for immediate medical problems. Officers must then take these persons to mental health facilities or hospitals for detention, evaluation, and treatment for up to 72 hours.ld. §§ 433A.150, 165.
The Washoe County Detention Facility (the Jail) is owned and operated by Washoe County. not Reno, though it does house arrestees from Reno and surrounding areas. In addition to the procedures adopted by Nevada, the Jail also has adopted internal policies to protect mentally ill and intoxicated detainees. Immediately upon arrival at the Jail, registered nurses examine every detainee and fill out a medical screening form and a mental-health questionnaire, both of which address the detainee's suicide risk. Lindsay M. Hayes, Technical Assistance Report on Suicide Prevention Practices Within the Washoe County Jail 11 (Sept. 13, 2005). The Jail also offers annual suicide-prevention trainjng for all corrections officials. [d. at 6.
3. Despite these efforts to prevent suicide, jail inmates such ·as Brenda Clustka still occasionally take their own lives. Clustka had a troubled past as a

6
repeat misdemeanant. In the year before her death, she was jailed four times: (1) in May 2004 for domestic battery; (2) in December 2004 for driving under the influence of alcohol (DUI), careless driving, and driving with a suspended license; (3) in February 2005 for petit larceny, DUr, and battery; and (4) in March 2005 for domestic violence against her 74year-old mother. Ninth Circuit Excerpts of Record (ER) 23-27.
Clustka was also committed to the Northern Nevada Mental Health Institute (NNMHI), a state mental hospital, three times under the Legal 2000 procedure, in September 2001, August 2003, and April 2004, for threatening or attempting suicide. ER 98-131. All three times, she was released with instructions to follow up with her primary-care doctor and with recommendations for counseling. ER 107. 119-20, 126-28. There is no evidence in the record that Clustka followed any of these instructions.
On April 25, 2005, Clustka was put on a fourth Legal 2000 hold. ER 140-41. Her mother reported that she had threatened to overdose on her medication, so Reno police officers transported her to the Washoe Medical Center, a private hospital. ER 13334. When doctors examined her in the emergency room , she denied threatening or attempting to commit suicide. ER 133.
Because Clustka's story contradicted her mother's account, a doctor recommended transferring her to NNMHr on a Legal 2000 hold for further evaluation.

7
l d. When a psychiatric nurse and then a psychiatrist evaluated her at NNMHI, Clustka again repeatedly denied any suicidal ideations, denied that she would harm herself, and refused treatment. ER 78-82. A social worker, who interviewed Clustka together with the psychiatrist, found that she posed a "low risk of [self-lharm." ER 83, 88, 90. Thus, the psychiatrist ordered staff to return Clustka's prescription drug Xanax to her. ER 83-85. When he discharged her, he judged that she did not pose a risk of suicide. ER 91. Because she was dependent on alcohol and prescription drugs, the psychlatrist and psychiatric nurse recommended that she receive alcohol treatment and counseling following her discharge the next morning. ER 84-85. There is no evidence in the record that Clustka followed her psychiatrist's advice. On the contrary, she kept blaming others for her prob-
lems, remained "unwilling to admit to [her1 sub-
stance abuse problem." and rejected the psychiatrist's "[s]tron[g] encQurage[ment)"' to seek inpatient. treat.ment. ER82.
Fewer than five hours after being released on April 26, Clustka was again grossly intoxicated. ER 158-59. Emergency medical personnel employed by a local nonprofit corporation found her lying on the ground, medically evaluated her, and called Reno police. ER 182-83. Officers Ryan Ashton and David Robertson responded to the call and met the medical personnel at the scene. ER 158-59. When they told Clustka they were taking her into CPC custody, she became belligerent, began cursing, refused to

8
accompany the officers, and insisted on going to her mother's house to get her belongings. Id. To calm her, Officer Robertson said they would take her home as she had asked. Id. The officers put her in the back of their police transport wagon, without handcuffs, and proceeded to the Jail. ER 148, 158-59, 182-85. As they prepared to leave, the results of a computer background check came in. ER 158. That background check informed the officers of Clustka's violent tendencies, drug and alcohol addictions, and mental health problems, but not of any suicidal thoughts or attempts. ER 44-48, 158.
As they were driving, Clustka unbuckled her seatbelt, approached the surveillance camera, and began tapping on it to get the officers' attention. ER 36. The officers did not respond. Id. When Clustka looked out the window and saw that they were approaching the Jail, she went back to her seat and wrapped her seatbelt around her neck in full vi~w of the camera. ER 158-59. The officers immediately stopped the wagon, removed the seatbelt, handcuffed her, put her back in her seat, and buckled her seatbelt again. ER 36. As they were doing this, Clustka said: "You lied to me. Just kill me. I'll just kill myself then." ER 36, 158,215.
Upon arriving at the Jail, Officer Ashton, a rookie, asked Officer Robertson whether to report the incident. ER 151-52. Under standard Jail procedure, a medical professional was to evaluate Clustka as soon as they arrived at the Jail. Because the officers saw Clustka's behavior as angry, attention-seeking,

9
and manipulative rather than suicidal, they did not report it. ER 158-59, 187, 192-93, 215-16.
When Officers Ashton and Robertson turned Clustka over to the Jail staff, a registered nurse gave her a standard CPC evaluation. ER 428-30. Nothing in the record indicates that the nurse or anyone else at the Jail asked Officer Ashton or Robertson about Clustka's conduct during their encounter with her. For the fourth time in just over 24 hours, Clustka was examined by a medical professional. The registered nurse asked Clustka a series of questions about any mental instability. anxiety. medical issues, and injuries. Id. Clustka denied everything except for a headache. Id. Four hours later, after she had sobered up, Clustka was released and served with a Temporary Protective Order (TPO) sought by her mother because of Clustka's domestic battery. ER 44.
Late that night, police again detained Clustka on
a CPC and brought her to the emergency room. A
physician found no basis for further detaining or treating her and discharged her on April 27. ER 432.
Hours later, on April 27, Clustka returned to her mother's house in violation of the TPO. ER 51-52. There, different officers arrested her for violating the TPO and for domestic violence against her elderly mother. [d. After booking, a nurse at the Jail screened her for suicidal tendencies once again. ER 53-58. This was the sixth time in 48 hours that a medical professional evaluated Clustka. Clustka again denied having suicidal ideations or past suicide attempts. [d.

10
The nurse recommended assigning Clustka to the general jail population. ER 36, 56-57. Because of Clustka's history of substance abuse and mental illness, however, she was placed in the mental health unit to alert statT that she was a high-risk inmate. ER 36. A psychiatric nurse was scheduled to examine her the next day. Id. On the morning of April 28, Clustka took her life in her jail cell. ER 36, 59-62. Shortly afterward. Officer Ashton arrived at the jail with another arrestee and learned that Clustka had committed suicide. ER 151-53. Officer Ashton eventually wrote a full and detailed report of his interactions with Clustka on April 26. ER 74,157-59.
B. Proceedings Below
1. Respondents Charla and Dustin Conn, Clustka's adult children, filed this suit in the U.S. District Court for the District of Nevada under 42 U.S.C. § 1983. They sought compensatory and punitive damages, as well as declaratory and injunctive relief, against the City of Reno for its alleged failure to train its law enforcement officers and failure to implement policies to prevent suicides. They sued the city, not Washoe County, even though the Jail is a county agency. They also named Officers Ashton and Robertson as defendants for their alleged deliberate indifference to Clustka's serious medical need. The district court granted summary judgment to Reno and both officers on all claims. App. 73.

11
2. In an opinion by Judge Reinhardt, the Ninth Circuit reversed.
a. The panel held that a jury could find Reno liable for failing to train its police officers to prevent suicides. Under Harris, such liability under § 1983 is possible only if the "city's failure to train reflects deliberate indifference to the constitutional rights of its inhabitants." 489 U.S. at 392. Even though Officers Ashton and Robertson took Clustka to a jail where a medical professional immediately evaluated her, the panel believed that Reno exhibited "deliberate indifference" by failing to train the officers themselves to diagnose suicidal ideations. "[O]fficers predictably face situations where they must assess and react to suicide risks" and "are the first law enforcement officials to deal with detainees ... in highly stressful situations." Conn, 591 F.3d at 1103, App.47.
According to the panel, the "failure to train officers on how to identify and when to report suicide risks produces a 'highly predictable consequence': that police officers will fail to respond to serious risks of suicide and that constitutional violations will
ensue." Id., App. 48. Likewise, the panel held that a jury could find Reno liable for failing to adopt and implement policies to prevent suicides, for two reasons: first, because "there was no written policy on reporting suicide threats"; and second, because Uneither Robertson nor Ashton was disciplined for failing to report Clustka's suicide threat, although

12
each received negative comments about the incident in their annual evaluation." ld. at 1104, App. 49-50.
b. The panel also held that a jury could find the officers themselves deliberately indifferent to Clustka's serious medical need, because a jury could
find that they "were ,.. subjectively aware or
Clustka's need for treatment based on the seatbelt incident and "failed to adequately respond." ld. at 1096, App. 30. In addition, the panel rejected the officers' claim of qualified immunity. In the panel's view, "[w]hen a detainee attempts or threatens suicide en route to jail, it is obvious that the transporting officers must report the incident to those who will next be responsible for her custody and safety." ld. at 1102, App. 45. Because the panel considered that proposition "obvious," it held that "the constitutional right at issue here has been clearly established." ld.
c. Because neither the individual nor municipnlliability claims could be resolved on summary judgment, the panel reversed and remanded to let both proceed to a jury trial.
3. The court of appeals denied a petition for rehearing en banco 591 F.3d 1081, 1085 (9th Cir. 2010 ), App. 2. Chief Judge Kozinski , joined by Judges O'Scannlain, Kleinfeld, Tallman, Callahan, Bea, and Ikuta, dissented from the denial of rehearing en banco ld.
a. In the dissenting opWIOn, Chief Judge Kozinski noted that the State's obligation is simply

13
"not to purposefully create a risk of harm" to prisoners.ld. at 1085, App. 4. He explained that Reno satisfied that duty here. County and city officials gave Clustka multiple medical assessments and treatment. [d. at 1086-87 , App. 7. They would have given her more had she responded truthfully to the medical professionals' questions. Thus, Reno did not purposefully create opportunities for her to harm herself. [d.
More broadly, Chief Judge Kozinski raised grave federalism concerns about the panel's "unprecedented judicial intervention in our local institutions." ld. at 1085, App. 3. Democratically elected officials, not judges, are responsible for deciding whether to offer more care and social services. The opinion, he objected, empowers federal judges to "micromanage the police, who in turn will serve as mental health professionals." [d. In conjunction with Washoe County, Reno had gone above and beyond its obJigations by having multiple sets of medical professionals evaluate Clustka in the 48 hours before she committed suicide. The panel nevertheless found Reno's efforts in~ adequate, requiring that police officers likewise be trained as "suicide prevention experts." [d. at 1086, App. 5. This "novel holding," he feared , will "have far~ reaching consequences." Id.
Judge Reinhardt's opinion "creates a clear intercircuit split" involving decisions of the First, Third, Fifth, and Eleventh Circtrits, Chief Judge Kozinski explained. Id. It also conflicts with this Court's decision in City of Canton v. Harris, 498 U.S. 378

14
(1989). Conn, 591 F.3d at 1086 (Kozinski, C.J., dissenting from denial of rehearing en bane), App. 7 (" 'The claim in this case - that police officers were inadequately trained in diagnosing the symptoms of emotional illness - falls far short of the kind of 'obvious' need for training that would support a finding of deliberate indifference....'" (quoting Harris, 498 U.S. at 396-97 (O'Connor, J. , concurring in relevant part and dissenting in part»). Suicide-prevention policies were in place, and Reno should not be liable simply because the panel thought other policies would be more efTective. Conn, 591 F.3d at 1087 (Kozinski, C.J. , dissenting from denial of rehearing en bane), App. 7-8. Under Harris , "deliberate indifference means more than negligence," but the panel's opinion conflates the two. Id. , App. 9.
h. Chief Judge Kozinski reasoned that the officers were also entitled to qualified immunity. The officers neither withheld psychiatric care nor interfered with Clustka's treatment. "The panel's denial of qualified immunity in these circumstances means that officers can no longer leave the treatment of medical issues to trained medical professionals. Instead, they must actively assist those professionals by providing any information potentially relevant to a diagnosis." Id. at 1088, App. 10. Clearly established law, however, creates no such duty to share information, so the officers should enjoy qualified immunity. [d. at 1088-89, App. 11-12. Chief Judge Kozinski noted that the panel's decision on this point

15
conflicted with case law from the Third Circuit. [d. at 1089, App. 12.
c. In conclusion, Chief Judge Kozinski criticized Judge Reinhardt's opinion as "'a sweeping and dangerous precedent" that "severely undermine[s] the autonomy of local governments... ." [d. at 1090, App. 16.
- -- . - --
REASONS FOR GRANTING THE WRIT
This case presents two entrenched circuit splits on recurring questions that greatly affect cities and law enforcement officers across the country. In each area - municipal liability and officers' duty to provide medical treatment - the Ninth Circuit's decision conflicts with decisions from this Court.
Firs t, the courts of appeals have split 5-2 on whether municipalities can be held liable for -failing to train law-enforcement officers to diagnose detainees' suicidal tendencies. The Ninth Circuit takes the minority side of the split, holding here that the failure to provide such training can satisfy the high standard of deliberate indifference required by
Harris. Its decision also disregards Harris's admonition that plaintiffs must show that the municipality's training failed to "enable[] officers to respond properly to the usual and recurring situations with which they must deal." 489 U.S. at 391. Because the "diagnosis of mental illness is not one of [these] 'u sual and recurring situati ons,'" a mere claim that "police

16
officers were inadequately trained in diagnosing the symptoms of emotional illness [1 falls far short of the kind of 'obvious' need for training that would support a finding of [municipal] deliberate indifference...." [d. at 396-97 (O'Connor, J., concurring in relevant part and dissenting in part).
Second, the Ninth Circuit's holding regarding the officers' individual liability creates an additional circuit split. While the Ninth Circuit in this case held that the Due Process Clause reqttires law-enforcement officers to diagnose and report symptoms of mental illness, the First and Third Circuits have reached the opposite conclusion. This Court has held that a showing of deliberate indifference is necessary to make out a claim of constitutionally inadequate care. And it held in Davidson v. Cannon that a mere failure to communicate in a single case - in Dauidson, even a negligent failure to communicate - falls well short of satisfy;ng that standard. 474 U.S. 344, 348 (1986). The Ninth Circuit's decision conflicts with that holding.
These issues recur every day across America, as each year well over a milHon police officers arrest more than fourteen million people. The issues are also crucially important. Detecting suicidal ideations requires a medical diagnosis, one that is even more complicated for intoxicated detainees. This is a needle-in-a-haystack problem: in the Ninth Circuit, officers must now detect and report myriad potential symptoms of suicidal ideations in all 38,000 arrestees each day to prevent less than one actual suicide

17
among them. Marked improvements might reqUIre formal psychological exercises or even clinical training, forcing cities to spend indefinite and potentially devastating amounts of time and money. Only in hindsight can cities know how much training was enough to prevent suicides, and the Constitution does not require perfect foresight. This Court's review is imperative to provide uniform guidance to thousands of cities and millions of officers across the country.
----.----
ARGUMENT
I. THE NINTH CmCUl'l"'S DECISION CON· FLICTS WITH CITY OF CANTON v. HARRIS, EXACERBATING A SUBSTANTIAL CmCUIT SPLIT OVER § 1983 MUNICIPAL LIABILITY FOR NOT TRAINING LAW· ENFORCEMENT OFFICERS TO DIAGNOSE SUICIDE RISK
Under this Court's decision in Harris, the Ninth Circuit erred in holding a city liable under § 1983 for
not training law-enforcement officers to diagnose arrestees' suicidal tendencies. This Court in Harris warned that a plaintiff cannot hold a city liable for failure to train merely by "prov[ing] that an injury or accident could have been avoided if an officer had had better or more training," since "[s]uch a claim could be made about almost any encounter resulting in injury...." 489 U.S. at 391. The Ninth Circuit not only disregarded that warning here, but also widened

18
and deepened a "clear inter-circuit split." Conn, 591 F.3d at 1086 (Kozinski, C.J., dissenting from denial of rehearing en bane), App. 5. While the Ninth Circuit's holding accords with a Third Circuit ruling, five federal courts of appeals - the First, Fifth, Sixth, Seventh, and Eleventh Circuits - have rejected such claims. Because the question presented is recurring and important to cities and towns struggling to interpret Harris, it merits this Court's review.
A Since Harris, the Circuits Have Divided 5-2 Over a Municipality's Duty to Give Officers Suicide-Diagnosis Training
1. Five Federal Courts of Appeals Have Rejected Municipal Uability for Failure to Train Officers to Diagnose Detainees' Suicidal Tendencies
Five federal courts of appeals have rejected municipal liability under § 1983 for failing to train law-enforcement officers to diagnose suicidal tendencies. In direct conflict with the Ninth Circuit's decision below, these decisions have held that such diagnosis is not a "usual and recurring" part of an
officer's job. See Harris, 489 U.S. at 391. The circuit split is especially clear in cases factually similar to this one, involving drunk or otherwise intoxicated arrestees who are often belligerent or distraught at being arrested.
In the Fifth Circuit, diagnosing detainees' sui· cidal ideations is not a typical task expected of police

19
officers. Thus, the Fifth Circuit has held that a "[/1ailUTe to train police officers in screening procedures geared toward detection of detainees with suicidal tendencies" does not "rise to the level of a constitutional deprivation. ..." Burns v. City of Galveston , 905 F.2d 100, 104 (5th Cir. 1990). In Burns, a drunk detainee shouted that if officers did not give him a cigarette "he would kill himself." Id. at 101. The officers discounted his behavior as drunken but not suicidal, though he committed suicide less than an hour later. Id. at 101-02. His mother filed a § 1983 claim against the city for inadequately training police officers in "medical screening and suicide detection procedures." Id. at 103. The district court rejected the claim and granted summary judgment for the city. The Fifth Circuit affirmed. Diagnosing a detainee's suicidal ideations "requires the skills of an experienced medical professional with psychiatric training, an ability beyond that required of the average police officer by the due process clause." [d. at 104.
Similarly, the Eleventh Circuit has held that a city's mere failure to train officers to diagnose suicidal tendencies "is insufficient to establish deliberate indifference," as an officer "is not the guarantor of a prisoner's safety" when it comes to suicide detection. Popham v. City of Talladega, 908 F.2d 1561, 1564 (11th Cir. 1990). Thus, Popham affirmed summary judgment for the city on a § 1983 failure-to-train claim based on an intoxicated detainee's suicide. Id. The Eleventh Circuit was also unwilling to hold officers individually liable for the suicide without the

20
clearest proof of actual knowledge. Simply knowing that an inmate has threatened suicide while under the influence of alcohol or drugs does not give officers sufficient "reason to believe" the inmate is actually suicidal. [d. at 1564.
Agreeing that municipalities should not be liable for failure to train in these circumstances, the Sixth and Seventh Circuits have suggested that suicide detection is beyond the competence of the typical police officer. In Barber v. City of Salem, a drunk arrestee had expressed worries that the arrest would harm "his job, his engagement, and his ability to obtain custody of his young son...." 953 F.2d 232, 240 (6th Cir. 1992). He later committed suicide in jail. The court affirmed summary judgment for the officers and the city in a § 1983 suit. It held that officers could not be expected to discern suicidal tendencies and ideations in this drunken speech, as "such a reaction to an arrest for driving under the influence of alcohol could not be considered abnormal. .. ." [d. Because the officers never violated the Constitution, the city could not be liable for failing to train them and adopt suicide-prevention policies. [d.
Likewise, in a Seventh Circuit case, a detainee explicitly told officers that he had attempted suicide a few days ago, but he was drunk, made the statement in a joking manner, and said he was fine now. Boncher ex rel. Boncher v. Brown Cty., 272 F.3d 484, 485-86 (7th Cir. 2001) (Posner, J.). Officers discounted the statement as· that of a "happy drunk," but the detainee later committed suicide. [d. at 486. Judge

21
Posner refused to find § 1983 liability for failure to adopt better intake questionnaires or to train officers to diagnose suicidal tendencies: "It is not clear what good the [requested] better training would have done, at least in this case; the basic judgment the intake officers had to make was whether [the inmate] was joking, and that is not a judgment likely to be much assisted by special training." [d. at 488 (finding no deliberate indifference or constitutional violation).
The First Circuit has also agreed that suicide detection in intoxicated detainees is not a task that officers must perform. It has held that a city is not deliberately indifferent to the medical needs of "intoxicated and potentially suicidal detainees" simply because it does not train its police officers to detect suicidal tendencies. Manarite ex rel. Manarite v. City of Springfield, 957 F.2d 953, 959-60 (1st Cir. 1992) (affirming summary judgment for a city in a § 1983 suit predicated on the city's failure to train and educate police officers to detect suicidal tendencies and prevent suicides).
In sum, five federal courts of appeals have rejected municipal liability for failing to train lawenforcement officers to distinguish suicidal tendencies from intoxication. If the Ninth Circuit had applied these circuits' approaches to this case, it would have affirmed the district court's grant of summary judgment for Reno.

22
2. Two Courts of Appeals Have Allowed Municipal Liability for Failure to Train Officers to Diagnose Suicidal Tendencies in Detainees
In contrast with the above decisions, the Third Circuit has allowed cities to be held liable under Harris for failure to train their officers. In Simmons v. City of Philadelphia, the Thlrd Circuit upheld municipal liability for a city's failure to train its officers to recognize suicidal tendencies in intoxicated detainees. 947 F.2d 1042, 1049 (3d Cir. 1991). Over a vigorous dissent, the court upheld a jury's award of damages against the city. Simmons reasoned that "training in the profile of a typical suicidal detainee, the known hours during which suicides were likely to
occur, and the need for monitoring by officers or other
inmates would have enabled turnkeys to prevent
suicides among intoxicated detainees," Id. at 1075. The lead opinion also stressed that the city had introduced no evidence that training "would have proved unworkable, ineffective, or too costly," thus requiring cities to justify their policy tradeoffs in court. [d. (opinion of Becker, J.).
In the decision below, the Ninth Circuit joined the Thlrd Circuit on this side of the split. Conn, 591 F.3d at 1089, App. 12.

23
3. The Split Is Mature, Entrenched, and Ripe for Resolution by This Court
In the two decades since this Court's opinion in Harris, the division over this issue has matured. Opinions on both sides of the circuit split have explicitly discussed, followed, and criticized precedents from sister circuits. See, e.g., Barber, 953 F.2d at 239 (Sixth Circuit opinion discussing and adopting the Eleventh Circuit's reasoning in Popham); Simmons, 947 F.2d at 1096 (Weis, J., dissenting) (quoting the Fifth Circuit in Burns while criticizing the Third Circuit for requiring cities to train officers "to medically screen prisoners to detect suicidal tendencies," which would "'requir[e) the skills of an experienced medical professional with psychiatric training' "); Conn, 591 F.3d at 1086, App. 6 (Kozinski, C.J., dissenting from denial of rehearing en bane) (pointing out the circuit split over the issue and criticizing the Ninth Circuit for not following the First, Fifth, and Eleventh Circuit's decisions in Manarite, Burns, and Popham).
No consensus is likely to emerge unless this Court intervenes. The Ninth Circuit has not only joined the Third Circuit to deepen the split, but has rejected a petition for rehearing en banc over a strong dissent. The conflict is thus firmly entrenched. Only this Court can resolve it.

24
B. The Ninth Circuit's Decision Is Erroneons
Contrary to the decision below, Harris does not open municipalities to liability for failure to train officers to diagnose detainees' suicidal tendencies. The court's ruling disregarded Harris's instruction not to judge training programs by hindsight or based on tasks beyond police officers' competence. Instead, the Court did precisely what Harris warned against. It mistakenly reasoned that because suicide·diagnosis training could possibly have averted the injury in this case, the Constitution required such training. The Ninth Circuit's weakening of Harris's limitation on liability "open[s) municipalities to unprecedented liability under § 1983" and "implicate[sl serious questions of federalism." Harris, 489 U.S. at 391-92.
L The Decision Below Conflicts with Harris
The Ninth Circuit erred in treating the diagnosis of detainees' suicidal tendencies as within the scope of police officers' duties. Municipalities may be liable under § 1983 for inadequate police training "only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact." [d. at 388. Courts must compare the training program with the particular officers' duties. Id. at 390. In this case, the city provided Clustka with the assistance of multiple medical professionals with training in mental health. The police officers' duties did not extend that far.

25
8. This Court in Harris took particular care to warn against the danger of reasoning backwards. A municipality ought not be responsible for a particular injury merely because, in hindsight, training directed at that injury might have prevented it. As this Court explained:
Neither will it suffice to prove that an injury or accident could have been avoided if an officer had had better or more training, sufficient to equip him to avoid the particular injury-causing conduct. Such a claim could be made about almost any encounter resulting in injury, yet not condemn the adequacy of the program to enable officers to respond properly to the usual and recurring situations with which they must deal.
489 U.S. at 391 (emphases added). Municipalities are charged with training officers (and others) to handle the "usual and recurring situations with which they must deal/' not to cure every risk with which they may come into contact. The Court, for instance, noted that when cities provide firearms to police officers, they must train them in the constitutional limits on using deadly force. [d. at 390 n.10.
Police officers are expected to carry and to know how to use guns; they are not expected to know how to interpret psychiatric diagnostic manuals. Diagnos· ing suicidal ideation is not part of the "usual and recurring situations with which" police officers - as opposed to trained medical professionals - "must deal." Thus, a city may not be held liable merely

26
because it has not trained its police officers to diagnose these psychiatric symptoms. Indeed, Justice O'Connor, joined by Justices Kennedy and Scalia, explained how Harris's holding leads precisely to that conclusion. "The claim in this case - that police officers were inadequately trained in diagnosing the symptoms of emotional illness - falls far short of the kind of 'obvious' need for training that would support a finding of deliberate indifference to constitutional rights on the part of the city." 489 U.S. at 396-97 (O'Connor, J., concurring in relevant part and dissenting in part). That is because "the diagnosis of mental illness," unlike firearm use, "is not one of the lusual and recurring situations with which (the police] must deal.'" [d. at 397; see id. at 390 n.lO.
h. The Ninth Circuit engaged in just the sort of backward reasoning that Harris held would not "suffice" to establish municipal liability. In a key holding, the decision below reasoned that "plaintiffs have provided evidence that officers predictably face situations where they must assess and react to suicide risks in order to prevent grave harm to people under their protection." 591 F.3d at 1103, App. 47. Thus, the Ninth Circuit held, a city's failure to train police officers to diagnose suicidal ideation and tendencies "will fail to respond to serious risks of suicide and ... constitutional violations will ensue," Id. , App. 48.
Police officers, however, face many risks. As this Court emphasized in Harris , an after-the-fact assessment of an injury can always uncover additional

27
training that would have prevented it. The question under Harris is not whether training directed to the particular injury in this case CQuld, in hindsight. have potentially prevented it. Rather, the question is whether the city acted with deliberate indifference when it determined that medical professionals. not police officers, should be charged with diagnosing suicidal ideation and tendencies - in other words, whether diagnosing suicidal ideation is one of the "usual and recurring" situations with which police officers must deal. As Justice O'Connor's concurrence in Harris underscores - and the decisions of the First, Fifth, Sixth, Seventh, and Eleventh Circuits confirm - it is not.
2. The Decision Below Contravenes the Principles of Federalism Reflected in Harris
Moreover, the Ninth Circuit's decision conflicts with the principles of federalism central to this Court's decision in Harris. Harris insisted on demanding standards for liability that would not "engage the federal courts in an endless exercise of second-guessing municipal employee-training programs. This is an exercise we believe the federal courts are ill suited to undertake, as well as one that would implicate serious questions of federalism.» 489 U.S. at 392.
Here, the Ninth Circuit second-guessed Reno's training program. seeking to micromanage local law

28
enforcement in exactly the way that Harris sought to foreclose. As noted above, Clustka received repeated medical and psychological evaluations and care before, during, and after her arrests. Nevertheless, the panel held that the Constitution required the city to train its police officers to better diagnose suicide risks and prevent suicides. 591 F.3d at 1103-04, App. 48-49. That holding prevents cities from making the reasonable choice to leave diagnoses of intoxicated inmates' suicidal ideations in the hands of medical professionals. And it holds them liable after the fact if, in hindsight, they incorrectly guessed what precise measures federal courts would later require and what would prevent particular suicides. The Constitution does not require perfect foresight to avoid liability.
11_ THE NINTH CIRCUIT ERRONEOUSLY IMPOSED ON OFFICERS A NEW CONSTITUTIONAL DUTY TO DIAGNOSE AND REPORT SUICIDAL TENDENCIES, CREATING A CIRCUIT SPLIT
Only "the 'unnecessary and wanton infliction of pain'" on a prison inmate violates the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976) (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)). When inmates allege failure to provide medical care, they must prove that officials were "deliberate[ly) indifferen[t) to [their) serious medical needs." Estelle, 439 U.S. at 106. Pretrial detainees enjoy at least as much protection under the Due Process Clause of the

29
Fourteenth Amendment as prison inmates receive under the Eighth Amendment. Bell v. Wolfish, 441 U.S. 520, 545 (1979). Thus this Court, the decision below, and other courts use the deliberate-indifference standard to gauge the medical care owed to pretrial detainees. See, e.g., Conn , 591 F.3d at 1094 & n.3, App. 26 & n.3 (collecting cases); City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 243-44 (1983).
Deliberate indifference requires "something more than mere negligence" or carelessness. Farmer v.
Brennan, 511 U.S. 825, 835 (1994). Yet the Ninth Circuit held that officers' simple failure to diagnose and share medical information could amount to deliberate indifference. That holding not only con-
flicts with this Court's and federal circuit precedents, but erroneously lowers the bar for officer liability and disregards settled principles of qualified immunity.
A. The DecisiOil Below Conflicts with Circuit Decisions That Reject Liability for Law-Enforcement Officers' Mere Failure to Diagnose and Communicate Suicide Information
1. Other Circuit Decisions Have Held That Officers' Failure to Diagnose and Report Suicidal Tendencies Does Not Amount to Deliberate Indifference
Other federal circuit decisions have held that, as a matter of law, officers' failure to diagnose and share medical information potentially relevant to a detainee's

30
suicide is not deliberate indifference, but at most negligence. Those holdings conflict with the decision below.
The Third Circuit has repeatedly rejected § 1983 liability for failure to pass on information about a detainee's past suicide attempts and tendencies. In Freedman v. City of Allentown, Freedman's probation officer knew that Freedman had attempted suicide and had "suicidal tendencies." 853 F.2d 1111, 1113 (3d Cir. 1998). He spoke with a police detective who was questioning Freedman at the police station, but failed to mention the risk of suicide. Id. at 1111, 1113, 1117. An hour after his arrest , Freedman committed suicide. Id. at 1113.
Nevertheless, the court affirmed the dismissal of the § 1983 complaint. Though the complaint alleged that the probation officer's failure to relay the information was intentional, the court found no evidence of intent to conceal Freedman's past suicidal tendencies. Id. at 1113, 1117. While the probation officer may well have been negligent, the court ruled that hls failure to pass along the information about Freedman's suicide attempt and tendencies did not amount to deliberate indifference. Id. at 1117.
Likewise, in Williams v. Borough of West Chester, the court found no liability when a dispatching officer failed to communicate information about a pretrial detainee's suicidal tendencies. 891 F.2d 458, 466-67 (3d Cir. 1989). Williams was jailed at the police station. The dispatching officer there knew that

31
Williams had threatened and attempted suicide several times; but the officer never communicated that infonnation to anyone else. Id. at 462-63. Less than an hour after being put in a cell, Williams committed suicide. Id. at 462. Citing Freedman, the Third Circuit granted summary judgment for the dispatcher on a § 1983 claim. "(E]ven though (the dispatching officer] knew of (Williams's] past suicide attempts," no reasonable jury could find that he was deliberately indifferent. Id. at 466-67.
Though its facts are not identical, an analogous First Circuit case likewise declined to hold an officer liable for failing to diagnose and report potential symptoms of suicidal tendencies, even though the detainee later committed suicide. In Elliott v. Cheshire County, an eighteen-year-old boy had attacked his mother and threatened his father with a corn sickle and a chainsaw. 940 F.2d 7, 9 (1st Cir. 1991). When the officer arrived on the scene, the mother told him about the boy's schizophrenia and troubled past. [d. The officer delivered the boy to the county house of corrections but told no one there of the mother's warnings. [d. The boy committed suicide, and his family sued under § 1983 "for failure to inform the booking officer of (the boy's] medical history." Id. at 9, 12. Nevertheless, the First Circuit affirmed summary judgment in favor of the officer. Even though the court had to draw all factual inferences favorable to the boy. it found no "reason to suspect" that the officer knew of a suicide risk. [d. at 12. The officer knew of the boy's schizophrenia and bizarre behavior, but he

32
was not liable for failing to infer and warn jailers of facts suggesting that he needed close medical super· vision.
2. The Decision Below Created a Cir· cuit Conflict, Holding Officers Liable for Failing to Diagnose and Share Suicide Information with Jailers
If the Ninth Circuit had applied the First and Third Circuits' cautious approach to this case, it would have affirmed the district court's grant of summary judgment. Instead, the Ninth Circuit's decision below found that officers have a constitutional duty to diagnose and report suicidal tendencies to jailers. Without explanation, Judge Reinhardt's opinion asserted that "it is obvious that the transporting officer must report the [suicidal] incident to those who will next be responsible for her custody and safety." Conn, 591 F.3d at 1102, App. 45. That approach contradicts the First and Third Circuits' decisions discussed above.
B. The Ninth Circuit Erred by Relaxing the Deliberate·Indifference Standard to Include Mere Negligence and by Dilut· ing the Protections of Qualified 1m· munity
In holding that the officers could be liable for failing to diagnose and report suicidal tendencies, the court below made two errors. First, it watered down

33
the deliberate-indifference standard, holding officers liable for what was at most negligence. As this Court has held, an officer's failure to share information critical to an inmate's health and safety does not amount to deliberate indifference. Second, it held the officers potentially liable even though qualified immunity should have shielded them. The standard articulated in the decision below is novel, creating a new duty to share information. Novel legal standards are not clearly established law, and officers cannot be held liable in hindsight for failing to anticipate them.
1. Deliberate Indifference Requires More Than Careless Failure to Communicate Potentially Relevant Medical Information
This Court has repeatedly distinguished deliberate indifference from mere negligence or carelessness. See, e.g., Farmer, 511 U.S. at·S35; Estelle, 429 U.S. at 105-06. "It is obduracy and wantonness, not inadvertence or error in good faith, that characterize" violations of an inmate's right to receive treatment for serious medical needs. Whitley v. Albers, 475 U.S. 312, 319 (1986). Deliberate indifference is a much more demanding standard than negligence.
More specifically, this Court has held that lawenforcement officers' mere failure to communicate falls well short of deliberate indifference. In Davidson v. Cannon, one inmate (McMillan) threatened to violently attack another (Davidson). 474 U.s. 344, 345

34
(1986). Davidson relayed a note about the threat to the assistant prison superintendent on a Friday. [d. The assistant superintendent "mistakenly believed that the situation was not particularly serious" and simply passed it on to a corrections sergeant. [d. at 345, 348. The corrections sergeant was told of the note's contents, left it on his desk unread, and forgot about the note. He left for the weekend without passing along the information or warning the officers on duty. Id. at 345. Not having been warned, the prison staff took no precautions, and McMillan attacked and seriously injured Davidson. [d.
Davidson sued the assistant superintendent and the sergeant under § 1983, claiming that the breakdown in communications violated the Eighth Amendment and the Fourteenth Amendment's Due Process Clause. Id. at 346. This Court held that the officers' negligence fen far short of Eighth Amendment deliberate indifference or even the looser due process standard. "Respondents' lack of due care in this case led to serious injury, but that lack of care simply does not approach the sort of abusive government conduct that the Due Process Clause was designed to prevent." Id. at 347-48.
Like the assistant superintendent and corrections sergeant in Davidson, petitioners Ashton and Robertson arguably erred in not identifying Clustka's threats as serious and reporting them. They understandably saw Clustka as drunk, angry, and manipulative rather than suicidal. While their single instance of not passing along Clustka's threats to

35
prison guards may perhaps have been negligent. under Davidson it falls far short of deliberate indifference. See Freedman , 853 F.2d at 1117 (relying on Davidson in holding that the failure to report information about suicidal tendencies could not rise to the level of deliberate indifference).
Indeed, this Court has emphasized that it is not enough that the official be on notice of a serious
safety risk to a person and fail to prevent it. To be
liable, an "official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer, 511 U.S. at 837 (emphasis added). "[A]n official's failure to alleviate a significant risk that he should have perceived but did not" does not violate the Constitution. Id. at 838.
The Ninth Circuit's affirmance of potential lia· bility is even more egregious for three reasons. First, there is no basis here to find either ·deliberate indifference to a known risk or causation. Second, the officers transferred Clustka to the Jail where, pur· suant to standard procedure, a medical professional screened her for suicide risk. Third, she did not commit suicide until after a later rearrest and another medical screening. The Ninth Circuit has thus distorted the law under the Fourteenth Amendment and § 1983. This Court should redress the Ninth Circuit's aberrant decision.

36
2. Officers Ashton and Robertson Are Entitled to Qualified Immunity, As the Ninth Circuit's Novel Constitutional Duty Was Not Clearly Established Law at the Time
Government officials are immune from civil damages if they do not violate clearly established legal rights. Harlow v. Fitzgerald, 457 U.S. 800, 812 (1982). The right must have been clear enough at the time that a reasonable official would have understood that he was violating that right. Anderson v. Creighton, 483 U.S. 635, 640 (1987). "If judges ... disagree on a constitutional question, it is unfair to subject police to money damages for picking the losing side of the controversy." Wilson v. Layne, 526 U.S. 603, 618 (1999 ). Thus, circuit splits are relevant to assessing clarity and can prevent a rule from being clearly established. Id.; United States v. Lanier, 520 U.S. 259, 269 (1997 ).
In April 2005, officers had no clearly established constitutional duty to diagnose and report suicidal tendencies to jailers. The First and Third Circuits, in Freedman, Williams , and Elliott, had held to the contrary, finding the absence of reporting in those cases to be at most negligence. Even this Court in Davidson had held that failure to share information about a threat was a mere lack of due care, not actionable deliberate indifference. The case law gave petitioners no fair warning that their failure to report an isolated incident could subject them to monetary liability.

37
The Ninth Circuit erred in asserting, without citing any authority, that law-enforcement officers bore an "obvious" duty to report the seatbelt incident. It is not at all obvious. At least where officers are taking a detainee to a place where the detainee routinely will receive a medical evaluation, they reasonably caD leave the inquiry into symptoms and diagnosis to the medical professional.
III. THE BOUNDS OF MUNICIPALITIES' AND OFFICERS' CONSTITUTIONAL DUTIES TO DETAINEES ARE IMPORTANT AND RE· CURRING QUESTIONS
A. These Issues Affect Thousands of Local Law-Enforcement Agencies
This case presents questions of great importance to law enforcement agencies throughout the nation. Cities, townships, and police officers are receiving mixed signals on whether their suicide-prevention efforts are constitutionally adequate. In some circuits, cities must create policies and programs to train officers to diagnose detainees' suicidal tendencies. In other circuits, cities are free to leave these compli~ cated judgment calls to medical professionals. And while some circuits hold individual officers liable for failing to diagnose and report symptoms of suicidal
tendencies, others do not. Twenty years after Harris, there are still "no clear constitutional guideposts for municipalities" or officers regarding their potential liability for failing to "diagnos[el the symptoms of emotional illness" in detainees. Harris, 489 U.S. at

38
396-97 (O'Connor, J., concurring in relevant part and dissenting in part).
These circuit splits reflect a fundamental divide over cities' and towns' freedom to define lawenforcement officers' roles. As a result, thousands of law-enforcement agencies must choose between dramatically altering their suicide-prevention measures and risking § 1983 liability_ Municipalities suffer further because they lack clear guidance from those circuits that obligate them to train and adopt policies. The case law is unclear on what kind of training is necessary, whether it must involve extensive psychological and medical instruction, and how far individual officers must go to diagnose detainees.
Officers are neither used to nor prepared for serious mental-health duties. They typically rely on psychiatrists, physicians, nurses, and social workers in jails and hospitals to handle these professional medical questions. Cities and police officers, struggling to determine their constitutional duties, would greatly benefit from this Court's resolution of these issues.
B. Guidance Is Especially Important Given the Frequency ofAlcohol-Related Arrests
This Court's resolution is particularly important because police officers detain thousands of intoxicated people like Cluskta every day. In 2005, police officers arrested more than 7000 people each day for alcoholrelated violations. Sourcebook of Criminal Justice

39
Statistics Online, tbl. 4.28.2005, available at http:// www.albany.edu/sourcebook/pdflt4282005.pdf. The totsl number of intoxicated arrestees was probably much higher, as many intoxicated persons are arrested for non-alcohol-related crimes.
Thus, officers constantly interact with intoxicated detainees like Clustka. Drunk arrestees are often belligerent or distraught at being arrested, but they rarely commit suicide. In 2005, less than one detainee per day, arrested for any crime, committed suicide while in jail. [d. tbl. 6.0012.2005, available at http://www.albany.edu/sourcebook/pd£'t600122005. pdf. The Ninth Circuit's ruling requires officers to determine each day which of more than 7000 intoxicated arrestees (and 38,000 total arrestees) have potentially suicidal symptoms that might result in a single suicide within that haystack. This Court should give police officers and municipalities clearer guidance on their medical and c1inical duties to these arrestees, since these interactions occur every day.
IV. TIDS CASE IS AN EXCELLENT VEHICLE
This case is an excellent vehicle for resolving the entrenched circuit splits over municipal and officer liability. The factual record is clean and essentially undisputed. Petitioners denied the alleged consti· tutional duties at every stage of the proceedings, arguing that Reno and its officers are entitled to leave these diagnoses to medical professionals. The opinions below explicitly debated these issues and

40
squarely decided them. In particular, the Ninth Circuit's decision clearly held that the Constitution imposes specific suicide-detection and diagnosis obligations on cities and law-enforcement officers. These extensions of municipal and officer liability provoked an extensive dissent from denial of rehearing en bane by seven circuit judges. Moreover, this Court's resolution of the matter in favor of Reno and Officers Ashton and Robertson would determine the outcome in this case.
Doctrines of qualified immunity and municipal liability are designed not only to preclude money damages, but also to spare cities and officers the burden of litigation and trial. Thus, this Court has repeatedly reviewed denials of summary judgment in cases interpreting the scope of § 1983 and qualified immunity. See, e.g., Scott v. Harris, 550 U.S. 372, 376 n.2 (2007); County of Sacramento v. Lewis, 523 U.S. 833, 837-38 (1998); Hunter v. Bryant , 502 U.S. 224, 227-28 (1991) (noting that "because '[tlhe entitlement is an immunity from suit rather than a mere defense to liability,' we repeatedly have stressed the importance of resolving immunity questions at the earliest possible stage of the litigation" (alteration in original) (internal citation omitted) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985))); Mitchell , 472 U.S. at 530 (holding that a "denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable 'final decision' within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment").

41

On review of summary judgment. this Court can take the facts as given in the light most favorable to the non-movant. This posture eliminates factual disputes and focuses on issues of law. This case thus presents an ideal vehicle for determining cities' and officers' obligations to detect and diagnose suicidal tendencies in intoxicated detainees.
---.---

CONCLUSION

For the foregoing reasons, this Court should grant the petition for a writ of certiorari. In the alternative, it should summarily reverse the decision below and reinstate the district court's entry of summary judgment in favor of petitioners on all counts.

Respectfully submitted,

STEPHANOS BIBAS
NANCY BREGSTEIN GoRDON UNIVERSITY OF PENNSYLVANIA
LAw SCHOOL SUPREME
COURT CLINIC
3400 Chestnut Street Philadelphia, PA 19104 (215) 746-2297 sbibas@law.upenn.edu

J OHN J. KADLIC
Counsel of Record
DONALD L . CHRISTENSEN
CITY OF RENO
Post Office Box 1900 Reno, NV 89505 (775) 334-2050 kadlicj @reno.gov
Counsel for Petitioners

May 6, 2010

Blank Page

 </s> 7/9/2010

Untitled Document

No. 09-1361 Title:
Docketed: Lower Ct:
Case Nos.: Decision Date: Rehearing Denied:

City of Reno, Nevada, et al., Petitioners v. Charla Conn, et al. May 10, 2010 United States Court of Appeals for the Ninth Circuit (07-15572) July 24, 2009
January 8, 2010

~~~Date~~~ ~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
Mar 17 2010 Application (09A882) to extend the time to file a petition for a writ of certiorari from April 8, 2010 to May 8, 2010, submitted to Justice Kennedy.
Mar 22 2010 Application (09A882) granted by Justice Kennedy extending the time to file until May 7, 2010.
May 6 2010 Petition for a writ of certiorari filed. (Response due June 9, 2010)
Jun 3 2010 Order extending time to file response to petition to and including July 9, 2010.
Jun 9 2010 Brief amici curiae of International Municipal Lawyers Association, et al. filed.
Jul 6 2010 Order further extending time to file response to petition to and including August 9, 2010.

~~Name~~~~~~~~~~~~~~~~~~~~~ ~~~~~~~Address~~~~~~~~~~~~~~~~~~ ~~Phone~~~

Attorneys for Petitioners:

John J. Kadlic

P.O. Box 1900

(775) 3342050

Reno, NV 89505

kadlicj@reno.gov

Party name: City of Reno, Nevada, et al.

Attorneys for Respondents:

Charles A. Rothfeld

Mayer Brown LLP

(202) 2633000

1999 K Street, N.W.

1/2

7/9/2010
Party name: Charla Conn, et al. Other:

Untitled Document
Washington, DC 20006-3000 CRothfeld@mayerbrown.com

Stephen B. Kinnaird

Paul, Hastings, Janofsky & Walker LLP

875 15th Street, NW Washington, DC 20005 stephenkinnaird@paulhastings.com Party name: International Lawyers Association, et al.

(202) 5511700

2/2

 </s> Charla CONN, Dustin Conn, Plaintiff-Appellants, v. CITY..., 2007 WL 2734637...

2007 WL 2734637 (C.A.9) (Appellate Brief) United States Court of Appeals, Ninth Circuit.
Charla CONN, Dustin Conn, Plaintiff-Appellants, v.
CITY OF RENO, Ryan Ashton, David Robertson, Defendants-Appellees.
No. 07-15572. August 6, 2007.
District Court No. 3:05-cv-00595 HDM Appeal from Grant of Summary Judgment United States District Court District of Nevada United States District Judge Howard D. McKibben

Appellants’ Opening Brief

Terri Keyser-Cooper, Law Office of Terri Keyser-Cooper, Nevada Bar Number 3984, 3365 Southampton Drive, Reno, Nevada 89509, (775) 337-0323, Diane K. Vaillancourt, Law Office of Diane K. Vaillancourt, Cal. Bar No. 181348, Nev. Bar No. 9277, 849 Almar Avenue, Suite C403, Santa Cruz, CA 95060, (831) 458-3440, Attorneys for Plaintiff-Appellants’ Charla Conn and Dustin Conn.
TABLE OF CONTENTS

TABLE OF CONTENTS .....................................................................................................................................................................

i

TABLE OF AUTHORITIES ..............................................................................................................................................................

v

I. STATEMENT OF JURISDICTION ............................................................................................................................................

1

II. ISSUES PRESENTED FOR REVIEW .....................................................................................................................................

1

III. STATEMENT OF THE CASE ...................................................................................................................................................

2

A. Nature of the Case .............................................................................................................................................................................

2

B. Course of Proceedings and Disposition in Court Below .....................................................................................................

4

IV. STANDARD OF REVIEW .........................................................................................................................................................

5

V. SUMMARY OF ARGUMENT ...................................................................................................................................................

5

VI. FACTS .................................................................................................................................................................................................

8

A. Clustka Had a History of Suicidal Behavior ...........................................................................................................................

8

B. After Her Release from Jail, on April 25 Clustka Was Involuntarily Committed ....................................................

9

C. Clustka’s Condition Deteriorated Again After her Release from NNMHI .................................................................

10

D. On Seeing the Jail, Clustka Wrapped the Seatbelt Around Her Neck and Threatened to Kill Herself ............

11

E. Officers Robertson and Ashton Dropped Clustka off at the Jail Without Informing Anyone What Had

12

Happened ..................................................................................................................................................................................................a

1

Charla CONN, Dustin Conn, Plaintiff-Appellants, v. CITY..., 2007 WL 2734637...

F. The Officers Were Authorized to Involuntarily Commit Clustka ...................................................................................

12

G. The Evening of April 26, With No Suicide Precautions in Place, Clustka Was Released from CPC then

14

Returned to Jail the Next Day .............................................................................................................................................................

H. On April 28, with no Suicide Precautions in Place, Clustka Killed Herself ...............................................................

15

I. The Officers Violated Well-Known Policy in Failing to Respond to Clustka’s Suicide Gesture and

16

Threats ..........................................................................................................................................................................................................

1. Prison Health Services Director Gail Singletary ....................................................................................................................

16

2. Washoe County Lt. Milt Perry .......................................................................................................................................................

17

3. RPD Deputy Chief James Johns ...................................................................................................................................................

17

4. RPD Sergeant David Evans ............................................................................................................................................................

18

J. Robertson and Ashton Admit They KNEW They Were Required to Report a Detainee’s Suicide Threats ....

18

K. RPD Failed to Train its Officers on their Obligation to Report Suicide Gestures and Threats ...........................

19

L. Several Options Were Available to Protect Clustka .............................................................................................................

20

1. Had Robertson and Ashton Reported Clustka’s Suicidal Attempt and Threats, Several Options Were

20

Available to Protect Her ........................................................................................................................................................................

2. Had Clustka Been Taken to a “Medical Facility,” She Would Have Been Held Until She Was No Longer

21

at Risk ..........................................................................................................................................................................................................

a. Dr. Gansert Testified to the Care Clustka Would Have Received ...................................................................................

21

b. Psychiatrist Caplan Testified to the Treatment Clustka Would Have Received at NNMHI to Protect Her

22

from Suicide ...............................................................................................................................................................................................

VII. ARGUMENT ...................................................................................................................................................................................

25

A. Deliberate Indifference to Suicide Threats ..............................................................................................................................

25

1. The Lower Court Erred in Failing to Find Clustka’s Suicide Threats Showed a “Serious Medical Need” .....

26

2. The Lower Court Erred in Finding as a Matter of Law that the Officers Were Not Deliberately

27

Indifferent ...................................................................................................................................................................................................

a. Whether the Officers Purposefully Failed to Respond Is a Jury Question ....................................................................

27

1. Issue of Fact Over Awareness of Risk ........................................................................................................................................

27

(a) Witnessed Attempt at Self Harm ................................................................................................................................................

28

(b) Additional Known Factors: Record of Mental Illness, Violent Tendencies, Emotional Dysfunction and

29

Substance Abuse ......................................................................................................................................................................................

2

Charla CONN, Dustin Conn, Plaintiff-Appellants, v. CITY..., 2007 WL 2734637...

(c) The Lower Court Erred in Finding No Dispute over Officers’ “Unawareness” .......................................................

30

(1) Suicide Threats by Intoxicated Persons Must Be Taken Seriously ...............................................................................

31

(2) Manipulativeness and Attention-Seeking ................................................................................................................................

33

(3) Ineffectiveness at Killing Herself ...............................................................................................................................................

34

(4) Breath to Scream ...............................................................................................................................................................................

35

2. The Lower Court Erred in Finding the Officers’ Knowing Violations of Policies Did not Give Rise to

36

Constitutional Liability ..........................................................................................................................................................................

a. The Officers Were Motivated to Hide their Wrongdoing ...................................................................................................

36

b. Harm-Robertson and Ashton “Set in Motion” the Constitutional Deprivation ..........................................................

37

(1) Plaintiffs Set Forth a Causal Relationship Between the Deprivation and the Harm ...............................................

38

(a) Under Any Scenario, Clustka Would Have Been Flagged as a Suicide Risk ............................................................

39

(b) The Court Erred in Finding Plaintiffs’ Showing on Causation Is “Speculation” .....................................................

40

(2) The Factors Cited by the Lower Court Do Not Defeat Causation .................................................................................

41

(a) Timing Does Not Defeat Causation ...........................................................................................................................................

41

(b) Medical Intervention Does Not Defeat Causation ...............................................................................................................

42

(c) The TPO Arrest Does Not Defeat Causation .........................................................................................................................

43

B. The Lower Court Erred In Finding Qualified Immunity ....................................................................................................

45

1. Robertson and Ashton Violated Clustka’s Right to Be Free of Deliberate Indifference to a Demonstrated

45

Risk of Suicide ..........................................................................................................................................................................................

2. The Law Protecting Pretrial Detainees from Deliberate Indifference to Suicide Risk Is Well-Established ....

46

C. The Lower Court Erred in Finding No Municipal Liability ..............................................................................................

46

1. Failing to Train ....................................................................................................................................................................................

47

2. Failing to Implement Policies ........................................................................................................................................................

48

3. The Known Deficient Robertson ..................................................................................................................................................

48

4. Failing to Discipline ..........................................................................................................................................................................

49

VII. CONCLUSION ...............................................................................................................................................................................

50

CERTIFICATE OF COMPLIANCE ...............................................................................................................................................

51

STATEMENT OF RELATED CASES ..........................................................................................................................................

52

3

Charla CONN, Dustin Conn, Plaintiff-Appellants, v. CITY..., 2007 WL 2734637...
TABLE OF AUTHORITIES Cases Bielevicz v. Bubinon, 915 F.2d 845 (3rd Cir. 1990) ............................................ Brosseau v. Haugen, 543 U.S. 194 (2005) .............................................................. Cabrales v. County of L.A., 864 F.2d 1454 (9th Cir. 1988), vacated, 490 U.S. 1087 (1989), reinstated, 886 F.2d 235 (9th Cir. 1989) ............................ Case v. Kitsap County Sheriff’s Dep’t, 249 F.3d 921 (9th Cir. 2001) .......... Cavalieri v. Shepard, 321 F.3d 616 (7th Cir. 2003) ............................................ Colburn v. Upper Darby Township, 838 F.2d 663 (3d Cir. 1988) ................. Colburn v. Upper Darby Township, 946 F.3d 1017 (3rd Cir. 45 1991) ...... Coleman v. Parkman, 349 F.3d 534 (8th Cir. 2003) ........................................... Delta Sav. Bank v. United States, 265 F.3d 1017 (9th Cir. 2001) .................. Fairley v. Luman, 281 F.3d 913 (9th Cir. 2002) (per curiam) ......................... Farmer v. Brennan, 511 U.S. 825 (1994) ................................................................ Gibson v. County of Washoe, 290 F.3d 1175 (9th Cir. 2002) .......................... Hall v. Ryan, 957 F.2d 402 (7th Cir. 1992) ............................................................ Henry v. County of Shasta, 132 F.3d 512 (9th Cir. 1997) ................................. Hoptowit v. Ray, 682 F.2d 1237 (9th Cir. 1982) ................................................... Jett v. Penner, 439 F.3d 1091 (9th Cir. 2006) ....................................................... Johnson v. Duffy, 588 F2d 740 (9th Cir. 1978) ..................................................... Jutzi-Johnson v. U.S.A., 263 F.3d 753 (7th Cir. 2001) ....................................... Long v. County of Los Angeles, 442 F.3d 1178 (9th Cir. 2006) ..................... Mombourquette v. Amundson, 469 F. Supp. 2d 624 (W.D. Wis. 2007) ...... Monell v. Department of Social Services, 436 U.S. 658 (1978) ..................... Pool v. Vanrheen, 297 F.3d 899 (9th Cir. 2002) ................................................... Saucier v. Katz, 533 U.S. 194 (2001) ........................................................................ Skiby v. City of New York, 109 F.R.D. 58 (E.D.N.Y. 1985) .............................
4

48 44 25, 41-45
36 25, 29, 45
29, 45 45
29, 32-33 5
46 passim 46, 47
29 49 25 25 37 2 n.3 46, 47 26, 33-34, 36 45-46
5 44-45
48

Charla CONN, Dustin Conn, Plaintiff-Appellants, v. CITY..., 2007 WL 2734637...
Snow v. City of Citronelle, 420 F.3d 1262 (11th Cir. 2005) ............................. Soto v. City of Sacramento, 567 F. Supp. 662 (E.D. Cal. 1983) ..................... Springer v. Seaman, 821 F.2d 871 (1st Cir. 1987) ............................................... Toguchi v. Chung, 391 F.3d 1051 (9th Cir. 2004) ............................................... Turney v. Waterbury, 375 F.3d 756 (8th Cir. 2004) ............................................ White v. Roper, 901 F.2d 1501 (9th Cir. 1990) (citing W. Prosser and W. Keeton, The Law of Torts § 41, at 266 (5th ed. 1984) ................................. Woodward v. Correctional Medical Services of Illinois, 368 F.3d 917 (7th Cir. 2004) .................................................................................................................... Statutes 42 U.S.C. §1983 ................................................................................................................ 28 U.S.C. §1291 ................................................................................................................ NRS §433A.115 ................................................................................................................ NRS §458.270 ....................................................................................................................

29, 33 37 37 27
29, 41 39, 43
29
passim 1
passim passim

I. STATEMENT OF JURISDICTION
This appeal challenges a final decision by a district court in a federal question case. The basis for subject matter jurisdiction in the district court is 42 U.S.C. §1983 and the Fourteenth Amendment to the United States Constitution. The basis for jurisdiction in the Court of Appeals is 28 U.S.C. §1291.
II. ISSUES PRESENTED FOR REVIEW
(1) In wrapping the paddy wagon seatbelt straps around her neck and repeatedly threatening to kill herself if taken to jail on civil protective custody, did the decedent Brenda Clustka put transporting officers Robertson and Ashton on notice that she was at risk of self-harm?
(2) Were the officers entitled to ignore Clustka’s suicidal gesture and threats because she was intoxicated?
(3) Did the lower court err in finding no deliberate indifference where the officers were motivated to keep silent regarding Clustka’s suicidal gesture and threats because they had violated procedures - first, by failing to handcuff Clustka, and second, by continuing to drive after she unbelted her seatbelt - and providing notice of Clustka’s conduct would have revealed their misconduct and exposed them to discipline?
(4) Did the lower court err in concluding it was sheer speculation that, had the officers taken Clustka to jail on a Legal 20001 as their superiors said they should have done - she would have more likely than not been protected from committing suicide on April 28.

(5) Did the fact that Clustka was released from civil protective custody with no suicide precautions in place constitute an intervening event protecting the officers from liability where she committed suicide after being returned to jail the next day?
5

Charla CONN, Dustin Conn, Plaintiff-Appellants, v. CITY..., 2007 WL 2734637...
III. STATEMENT OF THE CASE
A. Nature of the Case
Suicide has long been known to be the number one cause of death in United States’ jails.2 Jail inmates are nine times as likely to commit suicide than free persons. The likelihood of suicide is known to be highest in the first fourteen days of confinement.3 Washoe County Detention Facility is no exception. The suicide death of Brenda Jean Clustka in April 2005 was the second jail suicide within one month at the Washoe County jail and the fifth in little over a year.4
What makes Clustka’s suicide especially senseless and disturbing is that the officers who transported her to jail less than 48 hours before on civil protective custody5 intervened and stopped her from choking herself with a paddy wagon seatbelt. As the two officers struggled to remove the seatbelt from around her neck, Clustka begged them not to take her to the jail and screamed, “Kill me or I’ll kill myself then.” To any reasonable person, this suicide gesture and these suicide threats would indicate intent to harm herself. To defendants Robertson and Ashton, they did not count because she was intoxicated and suicide threats by intoxicated persons may be ignored.
The tragedy of this case is that, even though Clustka made her suicidal intent known to her transporting officers in no uncertain terms - for reasons of their own - they failed to take any steps to protect her. They had reason to keep silent. Had they reported her conduct, they would have also had to report how they violated seatbelt laws and handcuffing policies. Their interest in keeping silent trumped her need for suicide intervention. This is the essence of deliberate indifference.
Failing to report Clustka’s suicide threats to the appropriate officials and failing to involuntarily commit her, the officers deprived her of a safety net designed to protect persons at risk of killing themselves. When the officers took Clustka into civil protective custody, the objective was to protect her against self-harm. She had committed no crime. She needed protection, and the officers knew this.
At the very least - according to police department policy - they were obliged to report what they witnessed so that those who encountered her would have known to take suicide precautions. They weren’t free to just drop her off as though nothing had happened. They had an affirmative obligation to protect her. Instead of protecting her, they compounded the harm with their silence.
The officers could have protected Clustka by advising jail authorities of her threatened suicide. That would’ve triggered the jail’s obligation to protect her until she would be determined no longer a threat to herself. The officers could have protected Clustka by taking her directly to Washoe Medical Center and reporting her suicide threat to emergency room physicians. That would’ve triggered the hospital’s obligation to protect her until she was determined no longer at risk of suicide. Finally, the officers could have protected Clustka by reporting her suicide threats to their superior officers. That would have triggered the supervisors’ obligation to take appropriate action to protect her. The officers did none of the above. By dropping her off at jail while withholding critical information that only they were privy to, it is submitted that, exhibiting deliberate indifference to Brenda Clustka’s welfare and safety, these officers deprived her of life-saving alternatives.
B. Course of Proceedings and Disposition in Court Below
On November 3, 2005, plaintiff-appellants filed their Complaint in the United States District Court, District of Nevada (CR 2), followed on December 12, 2005, by their First Amended Complaint (CR 16, ER 1), which defendants answered on April 17, 2006 (CR 28, ER 13). On August 29, 2006, defendant-appellees filed a motion for summary judgment on all claims (CR 49), which plaintiff-appellants opposed on September 25, 2006, (CR 53-54), and to which defendant-appellees replied on October 13, 2006 (CR 58). On March 8, 2007, the district court granted defendant-appellees’ motion and entered judgment against plaintiff-appellants (CR 62-63, ER 434-453). Notice of appeal was timely filed on April 3, 2007 (CR 66, ER 454).
6

Charla CONN, Dustin Conn, Plaintiff-Appellants, v. CITY..., 2007 WL 2734637...
IV. STANDARD OF REVIEW
The appellate court reviews a district court’s grant of summary judgment de novo. Pool v. Vanrheen, 297 F.3d 899, 905 (9th Cir. 2002); see also Delta Sav. Bank v. United States, 265 F.3d 1017, 1021 (9th Cir. 2001).
V. SUMMARY OF ARGUMENT
There is no dispute that Clustka - while being transported to jail on civil protective custody, having committed no crime and bothered no person, with a mere .10 breathalyzer reading as she stood in a Reno residential neighborhood - attempted to choke herself with a seatbelt strap in the paddy wagon and screamed repeatedly, “Kill me or I’ll kill myself then.” There is no dispute that transporting officers Robertson and Ashton watched Clustka tightly wind the seatbelt around her neck through the paddy wagon surveillance camera and heard her repeated threats to kill herself. There is no dispute these officers were advised before putting her in the paddy wagon that she was mentally ill.
There is equally no dispute these officers knew that, according to policy, all suicide attempts must be reported. There is no dispute they knew that officers like themselves do not have discretion to fail to file reports on such matters to their superiors or notify jail staff. Finally, there is no dispute these officers knew they were violating RPD policies when they decided to transport Clustka without first handcuffing her and that they knew they were violating, not only department policies, but also state law when they continued driving after seeing Clustka remove her seatbelt and move about the paddy wagon.
Had the officers reported the choking incident, they would also have had to explain just how Clustka came to wind the seatbelt around her neck, how their failing to secure her contributed to the situation. They had good reason to maintain silence and avoid exposure to discipline at the price of Clustka’s welfare. The lower court erred in finding as a matter of law that this conduct by the officers did not constitute deliberate indifference.
The officers argue they had no responsibility to report Clustka’s suicide attempt and threats because she registered .10 on the breathalyzer and therefore was “intoxicated.” They insist - contrary to all officials and common sense - that suicide gestures and threats by intoxicated persons “don’t count” and they are free to ignore them. They assert she was trying to get their attention, she was being “manipulative,” and she could not have succeeded in killing herself in the paddy wagon because she would have passed out and the seatbelt would have slackened. On this basis, they argue, they were justified in ignoring her suicide attempt and threats. The lower court erred in giving the officers’ self-serving rationales full credence against the deposition testimony of jail health officials, jail and police personnel, and their own supervisor, who emphatically make clear the officers had were mandated to report suicidal gestures and threats even if made by an intoxicated person. There is much circumstantial evidence the officers knew exactly what they were doing. The question of their subjective intent is for a jury to decide.
In addition, the lower court erred in finding as a matter of law that there was no causal relationship between the officers’ conduct and Clustka’s actual suicide less than 48 hours later. So finding, the court ignored that, when Robertson and Ashton took her into civil protective custody, they assumed an obligation to protect her from self-harm and that they failed that obligation by “leaving her out in the cold,” that is, simply dropping her off at the jail without alerting anyone to the need to take suicide precautions.
Several options were available to save Clustka: First, consistent with their training,6 the defendant officers could have taken her directly to a hospital under Nevada’s Legal 2000 involuntary commitment procedure and reported what they saw and heard to emergency medical staff. Second, had they informed the jail, the jail would have had the option of refusing her, instituting a Legal 2000, and sending her to a hospital for assessment and treatment. Third, the jail would have had the option of admitting her and placing her under suicide watch until she was detoxified, then sending her to a hospital under a Legal 2000.
Any of these options would have assured suicide intervention by qualified medical and psychiatric staff until Clustka was determined to be not at risk of suicide. While Clustka was briefly evaluated medically at least twice following Robertson and Ashton’s contact with her, no one who evaluated her was apprised of her most recent suicide threats because the officers told
7

Charla CONN, Dustin Conn, Plaintiff-Appellants, v. CITY..., 2007 WL 2734637...
no one. No one at the jail had any way to know of her suicide gestures and threats. How could the jail take necessary suicide precautions if Robertson and Ashton failed to alert anyone of the need to do so? As a result, Clustka was never assessed or treated for suicide risk. The lower court erred in refusing plaintiffs’ substantial evidence of a different outcome and dismissing it as mere “speculation.”
VI. FACTS
A. Clustka Had a History of Suicidal Behavior
Brenda Jean Clustka was well known at Washoe County Detention Facility as a repeat misdemeanor offender. She had a documented history of family troubles, alcohol and other drug dependence and suicide threats dating back several years (ER 22-27, 37). In addition, she was involuntarily committed on a Legal 2000 three times between September 2001, and April 2004 (ER 97-142). In each of these commitments, Clustka was held until she was determined no longer suicidal. Afterwards, she remained “suicide free” between eight and 24 months (ER 97-142).
Nearly a year after her 2004 commitment for attempted suicide, on March 19, 2005, Reno police - among them defendant Ashton - arrested Clustka for misdemeanor domestic battery after a dispute with her mother. Police documented several bruises and injuries to her head, which she insisted her brother inflicted (ER 29, 31). Adhering to procedures, they took her to the Washoe Medical Center (“WMC”) for examination and treatment before taking her to jail. On March 20, jail authorities placed Clustka on suicide watch in the jail’s infirmary after she made comments about “not being able to make it in jail.” The jail kept her on suicide watch - with checks every 15 minutes - until it determined she was no longer a suicide risk (ER 36, 38-43).
B. After Her Release from Jail, on April 25 Clustka Was Involuntarily Committed
On April 21, Clustka was released from jail (ER 36). Meantime, Clustka’s mother had applied for a temporary protective order (“TPO”) that would require Clustka to stay away from her home and be accompanied by police when retrieving her belongings (ER 48).
On April 25 - the TPO had not yet been issued - Clustka and her mother had a verbal altercation in which Clustka threatened suicide overdose with an anxiety medication. Her mother called 911. Reno police responded and took Clustka to WMC to be evaluated for involuntary commitment to a mental health facility. The emergency department admitted her at about 9:30 a.m. She lied to emergency staff that she had never made any suicide threats or attempts when she clearly had repeated attempts on file. She escaped and officers were summoned to bring her back involuntarily. The hospital then transferred her to Northern Nevada Mental Health Institute (“NNMHI”) on a Legal 2000 commitment where she was assessed for suicidal ideation. Clustka arrived at NNMHI at around 4:30 p.m. on April 25 and was held overnight on a suicide watch (ER 78-85, 133-142).
NNMHI conducted a thorough suicide assessment and, around 9:30 a.m. on April 26, released Clustka after she assured mental health staff she would “not attempt to harm herself,” exhibited thoughts that were “logical and organized with no signs of psychosis,” and demonstrated adequate judgment and insight “to meet basic needs and understand dependence” (ER 142). She was given back her anxiety medications and was advised to “return or call for future difficulties” (ER 85).
C. Clustka’s Condition Deteriorated Again After her Release from NNMHI
The morning of April 26 after being released from NNMHI, Clustka took a turn for the worse. At around 11:00 a.m., her mother obtained the TPO and she realized she could not go home (ER 44). By around 2 p.m., Regional Emergency Medical Services Authority (“REMSA”) responded to a 911 call from an passerby regarding a “psychiatric problem” Finding Clustka “supine” on the sidewalk, REMSA cleared her medically and, smelling alcohol on her breath, they called Reno police for a
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civil protective custody (“CPC”) commitment (ER 425).
Reno police officers Robertson and Ashton were dispatched to the scene. Ashton recalled Clustka because he assisted in arresting her a month earlier. Clustka explained to Robertson and Ashton that she wanted assistance in retrieving her belongings-that she was aware of the TPO and wanted to comply. Though intoxicated, Clustka responded appropriately to the officers’ questions and carried on a conversation. She was not stumbling, falling down, fighting anyone or causing any disturbance (ER 218@59:1-4, 219@62:14-19, 220@67:14-24). The officers had discretion to take her on a CPC or leave her alone-they decided to take her to jail (ER 219@63:7-9). They conducted a wants and warrants check, which indicated precautions that Clustka abused drugs and alcohol, had a history of mental problems, and had violent tendencies (ER 47, 148:8-12). She was not yet served with the TPO and so was not violating it (ER 147-148, 158).
To gain Clustka’s cooperation and entice her into the paddy wagon, Robertson lied, promising, “Okay. We’ll go take you to pick up your stuff.” At his deposition, Robertson admitted he lied and had no intentions of taking her anywhere but jail (ER 149:7-10). Violating department policy and general orders, Robertson and Ashton chose not to handcuff her for the trip in the paddy wagon to jail. Robertson drove and Ashton was in the passenger seat (ER 148:12-20, 149:17-18, 182@14:10-22, 222@73:24-74:1, 239@141:3-9, 474-475).
D. On Seeing the Jail, Clustka Wrapped the Seatbelt Around Her Neck and Threatened to Kill Herself
On the way to the jail, Ashton watched Clustka in the back of the paddy wagon through a video surveillance camera. He saw her undo her seatbelt, leave her seat, walk about the wagon several times and repeatedly knock at the camera with her hand. He asked Robertson if they shouldn’t stop. Though it was a known violation of seatbelt laws and department policy, Robertson decided not to stop and secure Clustka in her seat (ER 149:10-17, 185@25:11-15, 213@40:10-16, 214 @43:3-21).
When she sighted the jail out the paddy wagon window, Clustka became extremely agitated and distressed. She sat back down, grabbed the seatbelt straps and wrapped them tightly around her neck in what the officers admit was an attempt to choke herself (ER 149:13-151:1, 349-350, 359:3-7). This time, Ashton made Robertson stop the paddy wagon and the officers went to the back. It took both of them to unwind the seatbelt from around Clustka’s neck. They then placed her on the floorboard, placed her hands behind her back, handcuffed her with flexible handcuffs, and secured her in the seat. Clustka was screaming, “You lied to me. Just kill me. I’ll kill myself then” (ER 150:1-8, 195@66:7-10, 353:21-25, 363:10-15).
E. Officers Robertson and Ashton Dropped Clustka off at the Jail Without Informing Anyone What Had Happened
Robertson and Ashton continued to transport Clustka to the jail, this time in handcuffs and seatbelted. On arriving at the sally port, Clustka again screamed she wanted to die (ER 215@46:25-47:9). The officers told Central Control that they had an uncooperative and “disoriented” female but were silent on what had happened (ER 150:6-12).
Ashton asked senior officer Robertson if they shouldn’t report the suicide threats but they decided not to (ER 151:9-13). They had reason not to report what had happened: Had they reported it, they would have had to explain why Clustka was not handcuffed and not secured in a seatbelt in violation of department policy and state law (ER 182@14:10-22, 222@73:2474:1, 239@141:3-9, 149:10-17, 185@25:11-15, 213@40:10-16, 214@43:3-21). The officers maintain they did not believe it was a serious suicide attempt, that Clustka knew they were watching her on video surveillance and that the seatbelt would have lost tension after she passed out-so she would not actually have died (ER 151). The officers also maintain that, because Clustka was inebriated, her suicidal gestures and threats “didn’t count” (ER 230@107:5-11, 193@56:17-24). This rationale and reasoning was denounced by their supervisors and jail staff, who insist that all suicide gestures and threats must be reported (pp. 15-17 infra).
F. The Officers Were Authorized to Involuntarily Commit Clustka
NRS § 433A.115 specifically gives police officers authority to involuntarily commit mentally ill persons who attempt or 9

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threaten suicide by taking them to an emergency medical facility whether or not intoxicated (ER 246). All Washoe County personnel, RPD administrators, and the defendants themselves recognize that they may make an involuntary mental health commitment of a person who threatens suicide and is mentally unstable. Nevada’s Civil Protective Custody Statute, NRS 458.270, similarly, mandates that an intoxicated person taken into custody be taken immediately to an “appropriate medical facility if his condition appears to require emergency medical treatment” (ER 247, 399-400).
RPD Deputy Chief James Johns, a self-identified policymaker, testified that a “Legal 2000” occurs when an officer is dealing with an individual who demonstrates a potential threat to self (ER 252@5:16-17, 262@45:13-21). In considering a Legal 2000, the issue is “whether or not the person is exhibiting those behavior traits that would lead the officer to believe the individual is a threat to his or herself” (ER 262@46:18-47:3). Even persons accused of heinous crimes may be taken to the hospital on a Legal 2000 before beginning their incarceration (ER 262@47:6-13). Washoe County Sheriff’s Lt. Milt Perry agreed, stating that instead of booking such persons, officers may take them directly to the hospital on a Legal 2000 (ER 312@55:8-56:2). Generally, if officers bring someone to the jail who has made suicidal statements, the jail has them take the person directly to the hospital (ER 314@63:21-24). If an intoxicated person who has threatened suicide is taken in on CPC, typically, when they’re no longer legally intoxicated, the jail does a Legal 2000 and takes the person to the hospital for involuntary commitment (ER 314@62:10-24).
Similarly, Robertson and Ashton’s supervisor, Sgt. Evans testified that officers conduct Legal 2000 holds when someone threatens to harm his or herself (ER 273@21:8-13). If an officer is confronted with someone who threatens to kill herself, the officer has several options available to protect the person, including taking her to a medical facility to be assessed and evaluated (ER 278@41:21-42:14). “If she’s making statements about killing herself we’re going to make sure that she is taken to a safe place” (ER 273 @ 22:19-21). According to Evans, someone with medical training is in a better position to evaluate such a person than a police officer (ER 274@25:7-26:2).
G. The Evening of April 26, With No Suicide Precautions in Place, Clustka Was Released from CPC then Returned to Jail the Next Day
On arriving at the jail, Clustka was given a standard CPC evaluation, which meant only checking her vital signs and general appearance, including signs of withdrawal. The nurse did not evaluate her for suicide risk because the nurse had no notice of her suicide threats. Moreover, the jail is not allowed to medically treat persons in CPC (ER 171@44:2-12, 428-429). Clustka was released from CPC in the late evening of April 26 with no suicide precautions in place and was served with the TPO (ER 428-431).
Following her release, Clustka could not return home due to the TPO. She was picked up again near midnight on April 26 on another CPC by officers who knew nothing of her earlier suicide gesture and threats. This second time the jail refused her because she was not sufficiently intoxicated and the officers took her to the emergency room where she was briefly examined and released after refusing medical treatment. Knowing nothing of the suicide threats she had made earlier in the day, the physicians did not do any suicide assessment or send her to NNMHI on a Legal 2000 (ER 432-433). After being released from the hospital, Clustka attempted again to return home to retrieve her personal belongings (ER 51-52).
About noon on April 27, Clustka’s brother called the police, who arrested Clustka for misdemeanor violation of the TPO and transported her to jail (ER 52). Clustka was placed in HU3, a medical housing unit, due to her mental health history (including the jail suicide watch one month earlier), anxiety disorder, and substance abuse. In the initial medical screening, Clustka was asked if she had ever “considered or attempted suicide” - this was all the suicide screening she received. She lied, denying she ever had done so. There was no sense of urgency, as the jail had no notice of Clustka’s recent history of suicidal gestures and threats and she was neither placed on suicide watch nor referred to the hospital on a Legal 2000 (ER 5358, 36).
H. On April 28, with no Suicide Precautions in Place, Clustka Killed Herself
At 8 a.m. on April 28, Clustka was removed from her cell for a video arraignment on the TPO violation (ER 61). With no
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suicide precautions in place - she was left alone with no monitoring for over half an hour - Clustka hung herself in her bunk bed with a sheet, having tied a knotted bed sheet around her neck and to the top bunk while lying in the bottom bunk. At about 9:17 a.m., jail officials found her dead (ER 62). Death was found to be caused by “Asphyxia by hanging/suicide” (ER 37).
A short time after, defendant Ashton arrived at the jail with another transport and was told about Clustka’s suicide. Ashton confessed to the sheriff’s deputy accompanying him that he had transported her to the jail on a CPC the day before and that she was not handcuffed and “tried to hang herself in the wagon.” He then remarked he would be writing a report and his “sergeant will be pissed.” He did not elaborate further (ER 74).
I. The Officers Violated Well-Known Policy in Failing to Respond to Clustka’s Suicide Gesture and Threats
Robertson and Ashton stand alone in their insistence that they were correct in failing to notify anyone as to what happened or take her to the hospital on a Legal 2000. Their superiors and all other officials strongly disagree. According to these others, Robertson and Ashton violated well-known policy and practice in failing to report Clustka’s suicide attempt and threats.
1. Prison Health Services Director Gail Singletary
“All law enforcement officers should be aware of the signs and symptoms of suicide to communicate it and help avert it,” Singletary testified (ER 167 @26:21-24). Singletary added that, when Robertson and Ashton arrived at the jail with Clustka, they should have let jail nurses know what they saw and heard (ER 174@53:4-11). They should have informed jail and medical staff of her conduct because there would have been an “opportunity to do a more complete evaluation” (ER 174@53:13-20). The fact that Clustka had made a recent statement threatening suicide, made a recent gesture, and had a history of suicide were appropriate for an intake nurse to consider in deciding what action to take (ER 175@57:6-10).
Following Clustka’s suicide - to avoid future policy violations by transporting officers - the Washoe County Detention Center implemented a new policy requiring all transporting officers to fill out a form indicating whether the detainee is or is not a “suicide risk.” The forms are at the jail and, according to Singletary, all “users” of the jail “must” fill out the form (ER 166@21:19-22:23, 166@23:21-25). Singletary testified, all transporters to the jail must answer whether the detainee’s conduct indicates they have mental health problems or are suicidal (ER 166@24:10-25). If a transporting officer sees either a suicidal gesture and/or hears a threat of suicide, that must be communicated to jail staff (167@25:2-6). In addition, if RPD officers transporting a detainee see the detainee attempt to choke his or herself (as Robertson and Ashton did with Clustka), that too must be communicated to jail staff (ER 167@25:20-26:7).
2. Washoe County Lt. Milt Perry
According to Lt. Perry, deputies have no discretion to ignore a detainee’s suicide threat (ER 311@51:6-14). Perry testified the “threat to kill oneself” by any detainee should be taken seriously (ER 305@27:19-21). A deputy who has learned that a detainee has threatened suicide will generally take such information to medical staff and ask what to do (ER 309@43:3-6). Perry acknowledged that all communication between a transporting officer and jail staff regarding suicide must be documented and reported (ER 312@53:15-19). Before joining the sheriff’s department, Perry was an RPD officer. He testified, from his training as an RPD officer that, when he used to transport detainees to the jail who said they wanted to kill themselves, such information had to be reported to the jail staff (ER 316@71:1-10).
3. RPD Deputy Chief James Johns
Deputy Chief Johns testified that, whenever a detainee states he or she wants to kill him or herself, that statement should reported to appropriate officials - it is never okay to ignore a suicide threat (ER 264@55:15-24). Johns added that, if
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Robertson and Ashton saw Clustka wrap the seatbelt around her neck and heard her statements about wanting to kill herself, they should have told jail staff when they arrived at the jail (ER 260@39:13-19). In their place, he would have told jail staff what he had observed (ER 259@35:9-19).
4. RPD Sergeant David Evans
Sgt. Evans disagreed with his subordinates Robertson and Ashton that they have “discretion” to decide which suicide gestures and threats are legitimate and which are not. He testified that, when an officer hears someone intends to kill him or herself, the officer must report it (ER 274@28:24-275@29:6). Evans would not advise officers under his control to disregard a detainee who says, “I want to kill myself” (ER 275@29:25-30:15). According to Evans, had he been the transporting officer who heard Clustka say she wanted to kill herself, he would have told the jail staff - that would be an important fact to relate (ER 279@47:14-18, 279@48:6-8).
J. Robertson and Ashton Admit They KNEW They Were Required to Report a Detainee’s Suicide Threats
Ashton - simultaneously insisting he did the right thing - admitted he knew that supervisors want to know if a person being transported has said anything about harming his or herself (ER 194@61:10-11). He knew that suicide attempts should be reported and officers do not have discretion to ignore them (ER 197 @75:15-20). Additionally, Ashton admitted that reporting a suicide attempt is important because a police officers’ job entails helping people in need (ER 197 @75:21-76:8).
Robertson similarly testified that, if he believes a prisoner may harm his or herself, he has a duty to alert others (ER 233@117:23-25). While it is RPD policy to notify a second officer of the means of the attempted harm, to notify a supervisor and to complete a written form, Robertson admitted he did “none of those things” (ER 233@119:17-24, 237@133:1-19).
K. RPD Failed to Train its Officers on their Obligation to Report Suicide Gestures and Threats
It is well-documented that suicide is the leading cause of death in U.S. jails (ER 385). Clustka was the second inmate in 30 days to commit suicide at the Washoe County jail and the fifth of six to die by suicide between January 2004 and August 2005 (ER 392, 395-396). All witnesses in this case testified that transporting officers have a duty to protect persons at risk of suicide and a corresponding duty to report suicide attempts and threats by persons in their custody. Yet, policymaker Johns testified he doesn’t know if RPD has a written policy on the reporting of suicide threats (ER 260@40:25-261@41:9). To Johns’ awareness, the department has no suicide prevention policy (ER 261 @41:13-15).
Sgt. Evans, Robertson and Ashton’s supervisor, similarly testified he is not aware of any training given to officers on how to distinguish when a person makes a serious suicide attempt or threat (ER 274@26:3-9). Additionally, he is unaware of any training on suicide prevention at RPD and has no recollection of any such training in the last ten years. He has no recollection of ever receiving any suicide prevention training while at RPD (ER 276@36:17-277 @37:25).
Robertson similarly testified he received no training on dealing with potentially suicidal prisoners (ER 228@98:2-4). The only training Robertson received was on handling the mentally ill, totaling 15 to 20 minutes, and he could not recall when he received this training in his 17-year career or who trained him on how to identify potentially suicidal prisoners (ER 234@121:23-122:3, 234@124:1-8). Like Robertson, Ashton testified that - while he thought he ought to have been trained he has no recollection of being trained by anyone while at RPD on what is or is not a genuine suicide attempt or how to deal with potentially suicidal prisoners (ER 186@32:12-15, 194@62:13-18).
L. Several Options Were Available to Protect Clustka
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1. Had Robertson and Ashton Reported Clustka’s Suicidal Attempt and Threats, Several Options Were Available to Protect Her
Singletary testified to the importance of communicating suicide threats and attempts to jail staff: First, the more information given to jail medical staff about potential suicide risk the better job medical staff can do to avert suicide (ER 164@14:11-15); second, if officers who transport a detainee to jail and see a suicidal gesture or hear a suicidal threat and do not inform jail staff - that omission can affect the kind of care the person receives (ER 164 @14:16-15:3); third, the majority of all suicide victims communicate an intent to commit suicide prior to doing it (ER 165@20:21-21:7); fourth - and most important - it is jail policy to refuse admittance of suicidal persons and to direct deputies to send such persons to hospitals (ER 172@47:1-8; 48:3-12). Jail staff and nurses can request that persons in civil protective custody be taken to a hospital for a Legal 2000 if they suspect the person is suicidal (ER 173@51:14-25). Jail medical staff are not allowed to medically treat persons in civil protective custody because they are technically not under arrest (ER 171 @44:2-5).
According to Perry, had CPC jail staff known of Clustka’s suicide attempt and threats, several options were available to protect her: First, despite Clustka’s intoxication, Robertson and Ashton could have applied for a Legal 2000 and taken her directly to a hospital (ER 315@65:3-9). Second, had the correctional deputies or staff known of her suicide attempt and threats, they could have placed her on a Legal 2000, the jail could have kept her under suicide watch, and a jail psychiatrist would have examined her, certainly a mental health professional (ER319@83:11-84:3). Third, on releasing Clustka from CPC, the jail could have sent her to the hospital on a Legal 2000 (ER 312@56:3-24). In other words, when a person “sobers up” and drops below the standard for holding him or her in CPC, correctional staff would commence a Legal 2000 and send the person to a hospital to address the risk of suicide (ER 314@62:10-16).
2. Had Clustka Been Taken to a “Medical Facility,” She Would Have Been Held Until She Was No Longer at Risk
a. Dr. Gansert Testified to the Care Clustka Would Have Received
Washoe Medical Center emergency physician, Dr. Guy Gansert testified that the police “typically take” a person who threatens suicide to the emergency department (ER 323@5:16-20). At WMC, both suicide attempts and suicide threats are taken very seriously (ER 325@12:21-13:2). On arrival at the emergency department, the person is assessed for risk of suicide (ER 323@5:21-23). Emergency staff perform a thorough medical screen - they take the person’s history, they ask a battery of questions, and they find out why the person was brought to the emergency room (ER 323@5:24-3246: 10).
An “alert team” assists the emergency physician in evaluating the person for suicide risk and carefully records all the information obtained (ER 324@7:5-14). After the emergency team finishes its evaluation, if the team feels the patient needs to be placed under a Legal 2000, the patient is transferred to a psychiatric facility, generally NNMHI (ER 324@7:24-8:20). On average, WMC holds such persons six to eight hours before transferring them to NNMHI (ER 328 @22:24-23:6).
Based on Dr. Gansert’s 17 years experience making referrals to NNMHI, they do a “thorough job evaluating patients at risk of suicide” (ER 324@8:16-20, 324 @9:10-13). They would have given “appropriate intervention” (ER 324@9:14-18). Gansert personally evaluated and transferred Clustka to NNMHI on April 25 and was satisfied that he did what was best for her and was “confident that she would get good care” there (ER 324@9:19-25). Had Clustka been returned to the emergency room on April 26 after her repeat suicide attempt, Gansert would have thoroughly evaluated her for suicide risk (ER 327@18:6-12), and, if he believed that she was at risk, he would have had “no hesitancy” in transferring her to NNMHI (ER 325@10:1-6).
b. Psychiatrist Caplan Testified to the Treatment Clustka Would Have Received at NNMHI to Protect Her from Suicide
Dr. Caplan, NNMHI’s psychiatrist, testified it would have been “critical to get Brenda Clustka to mental health care had she made a repeat suicide threat and attempt on April 26th” (ER 337@29:4-7). NNMHI provides full mental health services for persons with suicide issues (ER 331@5:10-20). Patients are admitted to NNMHI after a thorough assessment, complete with evaluations by social workers and nurses in addition to a psychiatrist (ER 332@7:18-8:21). Caplan personally does a
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psychiatric evaluation as an integral part of the suicide assessment and diagnoses the patient (ER 333@10:7-21). It is his “duty” to examine thoroughly and diagnose persons brought in for suicide risk (ER 333 @10:18-21). The social worker completes a “Locus Adult Assessment” as part of the assessment (ER 333@11:2-12:1) and the nurse does an individualized treatment plan, which identifies goals, interventions and conditions for discharge (ER 333@12:6-18). Careful progress notes are kept (ER 333@13:13-16).
As part of the treatment plan, NNMHI maintains the patient on observation - at least every 15 minutes - which is carefully recorded (ER 333@12:19-13:12). NNMHI takes a wide array of approaches to protect persons from suicide (ER 334 @14:46). Had Clustka been taken to NNMHI, she would have been kept overnight, carefully assessed, closely monitored, and nurses and social workers would have interacted with her to remove suicidal thoughts and to address her psychological/psychiatric issues (ER 336@25:25-26:10). Caplan testified to how important it is to pay attention to when someone makes a suicide gesture and to get that person to medical or mental health help, frequently both (ER 334@14:7-9, 334@14:16-15:2).
NNMHI will not discharge a person who it believes remains a suicide risk (ER 334@15:9-12). If its staff believe a person is at suicide risk, they can keep that person up to 72 hours to protect him or her (ER 334@15:16-19). In addition, there are options for keeping the person longer by petitioning the court and obtaining a court order (ER 334@15:24-16:2). With a court order, NNMHI can keep a patient at risk of suicide up to six months and can petition the court for even more time (ER 334@16:4-11). It can keep that person indefinitely until the risk is no longer significant (ER 334@16:14-18).
According to psychiatrist Caplan - both a treating physician and expert witness - “most people” who are suicidal want to be saved (ER 335@20:12-16). For the vast majority, there is an opportunity to intervene successfully (ER 335@21:21-25). Most suicides can be prevented (ER 335@22:4-7). The fact that Clustka “improved rapidly while receiving appropriate intervention and care on April 25, signified someone who would want to be saved (ER 335@20:17-21:1).
Had Clustka been returned to NNMHI following her second suicide incident within two days, she would have been thoroughly evaluated (ER 336@24:19-23). The fact of her intoxication would have set off an “alarm bell” that she was at high risk (ER 336@25:4-9). In addition, the fact of her Xanax abuse - also documented the day before - would have set off another alarm bell (ER 336 @25:10-13). The fact that she had a documented history of suicide attempts would have set off even more alarm bells (ER 336@25:19-24).
Finally, the fact that Clustka was admitted to NNMHI just one day before and held overnight on suicide observation would have set off “very serious alarm bells that this woman was at high risk of suicide” (ER 336@25:19-24). According to Dr. Caplan, “It would have been critical to get Brenda Clustka to mental health care had she made a repeat suicide threat and attempt on April 26th” (ER 337@29:4-7). A “whole safety net of precautions” existed to protect Clustka from suicide had she been returned to NNMHI after threatening suicide in the paddy wagon on April 26 (ER 337@28:17-21).
VII. ARGUMENT
A. Deliberate Indifference to Suicide Threats
Clustka was a detainee after Officers Robertson and Ashton took her into civil protective custody. The Fourteenth Amendment due process clause - rather than the Eighth Amendment - applies to protect such persons. Under the Eighth Amendment, prison officials must take reasonable measures to guarantee inmate safety, which means addressing serious physical and mental health needs. See Farmer v. Brennan, 511 U.S. 825, 833 (1994); Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982).
In the Ninth Circuit, the test for deliberate indifference has two parts: First, the plaintiff must show a “serious medical need” by demonstrating that “failure to treat a prisoner’s condition could result in further significant injury or the ‘unnecessary and wanton infliction of pain.’ ” Second, the plaintiff must show the defendant’s response to the need was deliberately indifferent. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (citations omitted).
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This second prong - defendant’s response to the need was deliberately indifferent - is satisfied by showing (a) a purposeful act or failure to respond to a prisoner’s pain or possible medical need and (b) harm caused by the indifference.
Id. While an inadvertent or negligent failure alone is insufficient to state a claim, indifference may be shown where officials “deny, delay, or intentionally interfere with medical treatment.” Id. As is often repeated, the deliberate indifference standard requires more than a finding of negligence but less than a showing of intentional harm-but rather a “subjective recklessness.” Farmer, 511 U.S. at 840; see also, Cavalieri v. Shepard, 321 F.3d 616, 621 (7th Cir. 2003). “The very notion of deliberate ‘indifference’ connotes a regime where neglect of detainees’ medical and psychological needs proves a constitutional violation. Cabrales v. County of L.A., 864 F.2d 1454, 1461 (9th Cir. 1988), vacated, 490 U.S. 1087 (1989), reinstated, 886 F.2d 235 (9th Cir. 1989).
1. The Lower Court Erred in Failing to Find Clustka’s Suicide Threats Showed a “Serious Medical Need”
Under the Ninth Circuit test for deliberate indifference, the first question is whether there was a serious medical need, in this case, for Clustka to have her threat of suicide addressed. Otherwise stated, was there a “substantial risk of serious harm” from the officers’ ignoring her suicide threats? See Farmer, 511 U.S. at 828.
As observed by one court, the meaning of “substantial risk” is “neither static nor rigid, but instead depends on the nature of the potential harm. In other words, the more serious a possible injury, the lower the threshold for showing that the risk is substantial.” Mombourquette v. Amundson, 469 F. Supp, 2d 624, 637 (W.D. Wis. 2007) (citations omitted).
Indisputably, Clustka had a “serious medical need” to have her suicide threats addressed. The lower court erred in deferring decision on the point. In deciding the officers were not deliberately indifferent, the court never acknowledged that it was Clustka’s life that was at stake.
The officers saw Clustka injured in a particular fashion that demanded life-saving intervention. To properly address the problem, the medical providers who interacted with Clustka at the jail needed to know the critical information that Clustka had recently threatened suicide. Without this information, they could not take the necessary measures to save her life, and the officers decided to withhold it. Had the officers witnessed her being bitten by a rattlesnake and the medical providers been advised that a rattlesnake had bitten her, they would have known to give her appropriate antidotes. Otherwise precious opportunity for appropriate intervention would be lost and her life would be at stake. Clustka’s suicide threat is no different: Had the medical providers been advised she was threatening suicide, they would have known to take suicide precautions. No one who examined Clustka after her interactions with Robertson and Ashton had the critical information that would have “set off alarm bells” that suicide precautions were necessary. Precious opportunity for appropriate intervention was lost and Clustka died as a result.
2. The Lower Court Erred in Finding as a Matter of Law that the Officers Were Not Deliberately Indifferent
a. Whether the Officers Purposefully Failed to Respond Is a Jury Question
1. Issue of Fact Over Awareness of Risk
Under Farmer, 511 U.S. at 837, a plaintiff must prove not only that the defendants knew facts that would allow drawing an inference of substantial risk of harm, but also that the defendants actually drew the inference. See also, Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004). The plaintiff “need not show that a prison official acted or failed to act believing that harm actually would befall an inmate; it is enough that the official acted or failed to act despite his knowledge of a substantial
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risk of serious harm.” Farmer, 511 U.S. at 842. Knowledge may be inferred if a risk is obvious. Id.
While it is not a violation if an official should have been aware of the risk but was not, Toguchi, 391 F.3d at 1057, the official may not immunize himself from liability simply by averring he was unaware. Circumstantial evidence may be used to persuade the factfinder that the official was subjectively aware of the risk, despite his protestations to the contrary. Farmer, 511 U.S. at 842. Further, while the official is not liable for obvious risks of which he was unaware, the obviousness of a risk may constitute evidence that he was in fact aware of the danger presented. Farmer, 511 U.S. at 842. An obvious risk is one that a reasonable person would realize. Id.
Who would admit to deliberate indifference? No one of course. Because the defendants’ state of mind is a question of fact worthy of probing inquiry, it is a matter generally reserved for a jury. In this case, Robertson and Ashton argue that, because Clustka was intoxicated, they were justified in ignoring her conduct and her suicide threats. Despite their protestations, there is substantial circumstantial evidence indicating they knew exactly what they were doing. Viewed in a light favoring plaintiffs - as is required - such evidence is sufficient for a reasonable jury to conclude that they were aware of the risk they were courting that Clustka would attempt to harm herself again. The lower court erred in simply crediting Robertson and Ashton’s expected denials.
(a) Witnessed Attempt at Self Harm
Robertson and Ashton admitted they observed Clustka wrap the seatbelt around her neck in an “attempt to choke herself” what they could see was an attempt at self-harm. Robertson further admitted he did not think she was joking, and Ashton agreed (ER 235@128:4-5, 286@31:22-24).
By itself, the officers’ awareness of Clustka’s choking attempt is sufficient to create a jury question on the issue of awareness. In several published appellate cases addressing jail suicide, courts have found that, when the evidence was that the defendants were aware of recent suicide attempts, it would be improper to grant summary judgment or judgment as a matter of law on the question whether the defendants were aware of a substantial risk of serious harm. See e.g., Cabrales, 864 F.2d at 1456, 1461; Woodward v. Correctional Medical Services of Illinois, 368 F.3d 917, 924, 928 (7th Cir. 2004); Cavalieri, 321 F.3d at 621-22; Hall v. Ryan, 957 F.2d 402, 405 (7th Cir. 1992); Snow v. City of Citronelle, 420 F.3d 1262, 1270 (11th Cir. 2005) (attempted to cut wrist one month earlier); Turney v. Waterbury, 375 F.3d 756, 760 (8th Cir. 2004) (previous suicide attempt at another facility); Colburn v. Upper Darby Township, 838 F.2d 663, 669 (3d Cir. 1988).
(b) Additional Known Factors: Record of Mental Illness, Violent Tendencies, Emotional Dysfunction and Substance Abuse
Although the suicide threats alone ought to be sufficient, several additional factors point to the officers’ awareness of Clustka’s vulnerability to suicide:
First, when the Robertson and Ashton unwrapped the seatbelt from around Clustka’s neck, she threatened suicide. Her communication was unambiguous-as in “I’ll kill myself”-and the officers plainly got the message. Nor did Clustka take back her words by averring she was “just joking.” Instead, as Robertson acknowledged, she repeated she “wanted to die” when he dropped her off at the jail. In Coleman v. Parkman, 349 F.3d 534, 539 (8th Cir. 2003), the appellate court found an issue of fact over deliberate indifference where the officials were made aware of the inmate’s recent threat to kill himself in the jail.
Second, the officers were aware, from the wants and warrants check, that Clustka had a history of mental problems. Ashton had personal awareness of her mental illness and substance abuse from having arrested her the previous month (ER 147-148). Further, it occurred to Robertson that she was “seriously mentally ill” (ER 235@128:6-9).
Third, both officers noted that Clustka was disoriented and intoxicated. According to Dr. Caplan, this factor alone ought to have sounded “alarm bells” for suicide risk given her verbalized suicide threat.
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Fourth, the officers knew that Clustka’s mother had just obtained a TPO against her, prohibiting her from returning to the home they shared. Clustka had a new problem of being unable to retrieve her belongings. This extra mental stress coupled with her suicide gesture and threats were sufficient to put the officers on notice to take her seriously.
Fifth, the officers were aware that Clustka continued to face all the stressors that contributed to her substance abuse and disoriented condition, including dysfunctional family relations, loss of home, and betrayal by the officers who had lied to her in promising to help her obtain her belongings.
There is no dispute that the officers saw Clustka attempt to choke herself and heard her threaten suicide in a context where several known factors indicated her vulnerability to suicide. It was error for the lower court to insist as a matter of law that they had no awareness.
(c) The Lower Court Erred in Finding No Dispute over Officers’ “Unawareness”
Ashton admitted that, if an officer is transporting a person who is “about to harm themselves,” the person should be taken to a medical facility (ER 190 @45:22-46:23). Robertson too admitted that someone who has mental illness and indicates intent to engage in self-harm should be checked out by a “qualified professional” (ER 225@85:12-19, 229@102:11-103:6). Robertson acknowledged that if he is aware someone is about to harm his or herself, it is “his job” and RPD policy to take every precaution so that suicide does not happen (ER 225@86:20-87:4).
Notwithstanding the officers’ admissions the lower court found persuasive the their several arguments why they were free to ignore Clustka’s attempt at choking herself and suicide threats: First, that they did not have to believe her because she was angry and intoxicated; second, that she was attempting to manipulate them and get their attention; third, that she could not have succeeded in killing herself because the seatbelt would have slackened after she passed out; fourth, that she had sufficient breath to scream that she wanted to kill herself when the officers unwrapped the seatbelt from around her neck. These arguments may be worthy of presentation to a jury, but, in summary judgment proceedings, they serve at best to show a factual dispute.
(1) Suicide Threats by Intoxicated Persons Must Be Taken Seriously
First, Robertson asserted that suicidal threats by an intoxicated person “don’t count” and Ashton agreed (ER 230@106:23107:11, 193@58:17-24). These averments by the officers that they were free to ignore Clustka’s suicide threats because she was intoxicated fly in the face of everything known about suicide risk. All officials who testified in this case flatly contradict the officer defendants - their supervisor Sgt. Evans, RPD Deputy Chief Johns, jail health administrator Singletary, Washoe County Lt. Perry, and psychiatrist Dr. Caplan. The testimony of these other officials is powerful circumstantial evidence of the knowledge and awareness prevalent in the department and so may be imputed to the defendants.
Sgt. Evans testified that an officer transporting an intoxicated prisoner to jail may not disregard the intoxicated person’s suicide threat (ER 276@33:25-35:25). Deputy Chief Johns confirmed it is not the policy of the RPD to ignore threats of suicide by intoxicated persons or consider such threats any “less serious” than those of non-intoxicated persons (ER 262@47:21-48:4). Additionally, jail health administrator Singletary testified that the threats of an intoxicated person should be taken seriously, adding that intoxication and emotional state are strongly related to suicide (ER 165@18:24-19:12, 165 @19:20-20:7). Lt. Perry testified it would be “against the rules” to disregard a suicide threat from an intoxicated person. (ER 305@27:9-11). Psychiatrist Caplan testified that recent excessive drinking and/or drugs, heightens the risk of suicide and ought to set off alarm bells (ER 336@23:12-20). Finally, Thomas Rosazza, expert witness in custodial care, testified that testimony by the officers that suicide statements by an intoxicated person are not to be taken seriously “is callous, contrary to industry precepts, and contrary to RPD practices regarding the care, custody and protection of potentially suicidal persons (ER 371).
There is abundant case precedent finding the existence of a jury issue over deliberate indifference where officers ignore suicide threats by intoxicated detainees. For example, in Coleman v. Parkman, during a pre-arrest investigation, witnesses
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told the arresting officer that the intoxicated detainee needed mental help, had been doing “crazy things,” was at risk of harming himself or others, and threatened to kill himself if jailed. Coleman, 349 F.3d at 536, 539. After receiving this information, the officer testified, he concluded the detainee was drunk and not at risk of suicide. He said nothing to jail officials about the warnings he had received. Lacking notice of the detainee’s suicide risk, the jail placed him in a “drunk tank” containing the usual prison items, including a bed sheet, and - like Clustka - the detainee hung himself with the sheet. Id. On appeal, the court found that a factfinder could infer the officers actually knew the detainee presented a substantial suicide risk. Id. at 539. It emphasized that these issues of credibility cannot be resolved in summary proceedings but rather require trial. Id.
Similarly, in Snow v. City of Citronelle, the custodial officer - like the defendants in this case - maintained he did not personally view the detainee as a suicide risk. The detainee in question was arrested for DUI following an automobile accident. The officer testified that, had he regarded her a suicide risk, he would have taken steps to protect her from harming herself. Like the officers transporting Clustka, the officer saw her as a drunk and not suicidal; so he failed to take precautions or report information conveyed to him about an earlier suicide attempt. After the officer went off shift - with no suicide precautions in place - the detainee hung herself. Snow, 420 F.3d at 1270. The appellate court found that the officer’s subjective belief as to whether the detainee was a suicide risk was a matter of dispute properly addressed at trial.
(2) Manipulativeness and Attention-Seeking
In this case, the lower court also found persuasive the assertion that the officers believed Clustka was simply trying to “get their attention” and “manipulate” them into not taking her to jail. As one district court persuasively explained, in a case such as this, the question whether a detainee was being “manipulative” is “close to irrelevant:” The important question is this: did plaintiff pose a serious risk of harm to herself? Defendants point to nothing in the record suggesting that [the jail nurse] believed a person who harms herself for “manipulative” reasons is less likely to make another attempt. Defendants’ own training materials confirm what common sense would already suggest: “The more attempts a person has made the greater the likelihood that the person will eventually die from suicide. This is true even of inmates who made several attempts that seem to be attempts at manipulation of jail staff.”
Mombourquette, 469 F. Supp. at 663 (emphasis in original). As in Mombourquette, Clustka demonstrated to the officers that she was capable of hurting herself when she wound the seatbelt around her neck and shouted she wanted to kill herself. Further, the officers knew there were aggravating factors--that she was mentally unstable, had a history of substance abuse, had a history of violence, was dysfunctional, and had family problems that prevented her from returning home or even gathering her belongings. “It matters little why she did these things, that is, whether she actually wanted to kill herself or was just seeking to use these attempts to seek some secondary gain.” Id. As she attempted to harm herself before their eyes, she was likely to do it again. See id.
(3) Ineffectiveness at Killing Herself
In addition, the lower court cited the officers’ argument that Clustka could not have succeeded in killing herself in the paddy wagon. Recognizing that Clustka “tried to choke herself,” Ashton averred he did not see it as a serious threat because “she would have lost all tension on the seatbelt once she... after she passed out.” The lower court ignored how the sheer admission that Clustka would have passed out demonstrates awareness of serious attempt at self-harm. There is no legal precedent for the proposition that custodial officers are free to disregard suicide attempts and threats where the detainee couldn’t have succeeded in completing the suicide. To the contrary, according to RPD training documents, officers are trained that a “small non life threatening” attempt at self-harm accompanied by a statement about “wanting to die” do meet the criteria for a Legal 2000 involuntary commitment (ER 412).
(4) Breath to Scream
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Finally, the lower court was persuaded that the officers were justified in ignoring Clustka’s suicide risk because she had sufficient breath to scream at them when they unwound the seatbelt from around her neck. This too misses the mark. First, it needs mention that, contrary to the court’s findings, there is no evidence that the officers believed Clustka’s suicide attempt and threats were not serious because she had sufficient breath to scream. Similarly unsupported is the assertion that the officers observed no bruises on Clustka’s neck after the unwinding the seatbelt from around it. These are fictions created for purposes of argument and are not grounded in the officers’ testimony or in any document before the court.
Even Clustka’s screaming and lack of bruises had been observed as significant by the officers, it still cannot be denied that in attempting to choke herself and threatening to kill herself, Clustka communicated suicidal thoughts and the officers saw and heard her. Suicide was obviously on her mind. She had taken steps-however effective or ineffective-to kill herself and, in no uncertain terms, communicated her intent: “Kill me. Or I’ll kill myself then.” How clear must a cry for help be before officers are constitutionally required to act?
2. The Lower Court Erred in Finding the Officers’ Knowing Violations of Policies Did not Give Rise to Constitutional Liability
a. The Officers Were Motivated to Hide their Wrongdoing
Robertson and Ashton further admit to knowingly violating Nevada traffic laws in continuing to transport Clustka in their paddy wagon after she removed her seatbelt. Finally, they admit to knowingly violating department policy in failing to handcuff Clustka before transporting her. While they have testified that their reason for failing to report Clustka’s suicide attempt and threats was because they did not believe she was serious, there can be no denial that they had good reason to keep silent to avoid having to reveal their violations to their superiors. Better to sweep the matter under the rug and avoid censure and potential discipline.
Later, on learning of Clustka’s suicide, Ashton confessed to another officer that he had transported her to the jail on a CPC the day before, that she was not handcuffed and “tried to hang herself in the wagon,” and that his “sergeant will be pissed” when he finds out (ER 74).
The lower court was wrong to find that these officers’ knowing violations may not give rise to constitutional liability under circumstances in this case. The issue is not whether these violations of department policy and state law amounted to a constitutional violation, which was the issue in the cases relied upon by the court, Case v. Kitsap County Sheriff’s Dep’t, 249 F.3d 921, 929-30 (9th Cir. 2001) et al. Here, the issue is entirely different. It addresses, not the violations per se, but the officers’ motivation to keep silent.
In violating seatbelt laws and handcuffing policies, the officers created a situation where Clustka was not restrained from moving about the paddy wagon and using the seatbelt in an attempt to choke herself. The fact that these officers recognized at the time what they had done is highly probative circumstantial evidence of their deliberate indifference. The officers had a strong motive - avoiding discipline - to withhold Clustka’s suicide gesture and threats from their superiors and jail staff. If they had mentioned her conduct as they should have, they would have had to reveal their failure to follow procedures. See Mombourquette, 469 F. Supp. 2d at 635-36. The lower court erred in overlooking this probative evidence that Robertson and Ashton were motivated to hide their wrongdoing at the price of Clustka’s welfare and safety.
b. Harm--Robertson and Ashton “Set in Motion” the Constitutional Deprivation
Section 1983 imposes liability upon those who “subject[] or cause[] to be subjected, any citizen of the United States...to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws....” 42 U.S.C. § 1983. This includes setting in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury. Springer v. Seaman, 821 F.2d 871, 879 (1st Cir. 1987) (quoting Soto v. City of Sacramento, 567 F. Supp. 662, 673-74 (E.D. Cal. 1983) and Johnson v. Duffy, 588 F2d 740, 743-44 (9th Cir. 1978)).
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In its decision, the lower court found as a matter of law no causal relationship between the officers’ failure to protect Clustka and her suicide less than 48 hours later. It noted that she did not commit suicide during her six hours in CPC, medical providers “evaluated” her at least twice, she received “substantial” intervening medical attention, and she made an “independent decision to return to her mother’s house and violate the TPO.” Finally, it found that, had the officers reported Clustka’s attempted choking and suicide threats, the course of events would not have been any different, that plaintiffs’ assertion that several options were available to protect her “relies entirely on speculation” (ER 447:21-448:17). The court erred in making these findings.
(1) Plaintiffs Set Forth a Causal Relationship Between the Deprivation and the Harm
Plaintiffs set forth in detail exactly what Robertson and Ashton did and failed to do with the harm that resulted. The jail did not know on April 26, 2006, to refuse Clustka at the door and send her to the hospital on a Legal 2000 or even to place her on suicide watch because Robertson and Ashton had failed to notify anyone of the choking incident and her threats.
Had Robertson and Ashton taken Clustka to the emergency room on a Legal 2000 after she both attempted and threatened suicide in the paddy wagon - either at the jail’s direction or on their own - it is not speculative that she would have been carefully watched and thoroughly assessed and transferred to a mental health hospital where she would have been kept as long as was needed. Had Robertson and Ashton informed jail authorities of Clustka’s suicide attempt and threats, the jail would have had the option of refusing her at the door and sending her directly to the hospital for detoxification, suicide assessment, and likely transfer to a mental health hospital for further suicide assessment and treatment. Finally, the jail could have kept Clustka on civil protective custody - addressed her suicide issues then and there - and, on releasing her at the end of detoxification, sent her to the hospital on a Legal 2000 (See pp. 19-23 supra). As a result of Robertson and Ashton’s deliberate decision to keep silent, Clustka was deprived of these several avenues of protection.
(a) Under Any Scenario, Clustka Would Have Been Flagged as a Suicide Risk
Under any of these options, Clustka would have been red-flagged as a potential suicide risk. Had she been sent to the hospital on a Legal 2000, her mental health history would have been flagged and carefully scrutinized, and she would have been held involuntarily until she was determined to be no longer at risk of suicide. Based on the testimony received in this case, it is extremely likely - not speculative - that hospital staff would have sent her to NNMHI and she would have remained there for days because of her earlier suicide attempt one day before her interaction with the defendant officers.
Robertson and Ashton set in motion the constitutional deprivation when they failed to report Clustka’s known vulnerability to suicide. They took her into civil protective custody but failed to protect her from self-harm. The jail is forbidden from giving medical treatment to persons in civil protective custody and so would likely have rejected her at the door or placed her on suicide watch and sent her to the hospital on a Legal 2000 when releasing her from CPC. This is not mere speculation. The procedure for doing this was fully explained by jail health director Singletary.
Robertson and Ashton were responsible for the fact that the jail did not implement suicide precautions or send her to the hospital on a Legal 2000. But for their decision to not report her suicidal gesture and threats, precautions would have been taken to protect her from suicide. Accordingly, Robertson and Ashton’s decision to keep silent contributed to Clustka’s ultimate death by suicide. See White v. Roper, 901 F.2d 1501, 1505 (9th Cir. 1990) (citing W. Prosser and W. Keeton, The Law of Torts § 41, at 266 (5th ed. 1984)).
(b) The Court Erred in Finding Plaintiffs’ Showing on Causation Is “Speculation”
The court further erred in finding that plaintiffs’ showing on causation rests on pure “speculation.” No one can deny that nearly every case that comes to trial has some propensity for speculation and no guarantees. It is never possible to say exactly what would have, could have happened for certain in any one case. All that may be shown in cases such as this is what may likely have happened - what is more probable than not - given appropriate intervention.
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That is why trial is necessary. In a trial, one can ask the jury, is it more reasonable than not to conclude based on the testimony of Lt. Evans, Nurse Singletary, Dr. Gansert and Dr. Caplan that protections would have been in place to protect Clustka had Robertson and Ashton only reported what they witnessed. All plaintiffs are asking is that the jury be allowed to decide what would have been the most credible outcome had the officers informed authorities about the choking incident and suicide threats.
One thing is clear: all these forms of intervention were available for Brenda Clustka and they are designed to protect people like her from killing themselves after they threaten to do so. She had been taken in on Legal 2000s before, and they had been successful in protecting her against self-harm in the past. As Dr. Caplan testified, her rapid improvement in previous commitments indicated she was someone who would have wanted to be saved (ER 335@20:17-21:1). Clustka had two teenaged children-plaintiffs--to live for. Medical records show how she felt that relationship was “very close” (ER 127). Had she been given appropriate care - for example, sent for intervention to NNMHI - she likely would have resisted the lure of suicide. She just needed the appropriate authorities to be told of her risk of self-harm. She needed Robertson and Ashton to put the proper authorities on notice of what they saw and heard. While all these interventions are designed specifically to ensure that she would not kill herself, she was deprived of any of them.
(2) The Factors Cited by the Lower Court Do Not Defeat Causation
The lower court based its holding as to causation on certain factors, none of which defeat causation as a matter of law:
(a) Timing Does Not Defeat Causation
First, as to the fact that Clustka did not kill herself during her six-hour CPD but rather 48 hours later when again in custody, the case law includes several examples where causation is found for suicides committed so long as a month after the threat is made. See, e.g., Cabrales, 864 F.2d at 1457 (suicide “gesture” two weeks earlier); Snow, 420 F.3d at 1270 (one month earlier); Turney, 375 F.3d at 760 (previous attempt at another facility). What is critical in all of these cases is that the custodial officers knew about suicide gestures or threats and failed to take reasonable measures to protect the inmates from killing themselves, whether the suicides took place hours or months later. Having set in motion the constitutional deprivation, the defendant officers rendered themselves potentially liable no matter when the suicide actually occurred.
(b) Medical Intervention Does Not Defeat Causation
Second, as to the court’s observation that Clustka was “evaluated” at least twice after the incident in the paddy wagon and received “substantial” medical intervention, it omits the essential fact that none of the medical providers were privy to what happened in the paddy wagon. None of them knew about her suicidal gesture and threats. None of them knew that she had threatened to kill herself. It did not matter how many times medical providers in the two short days between her civil protective custody on April 26 and her suicide on April 28. No one in position to help Clustka had the benefit of this critical information.
Had the officers simply dropped Clustka off at the jail after finding out she was bitten by a rattlesnake, the consequences would be the same. As with a rattlesnake bite, the officers knew Clustka had a problem-the threat from which demanded immediate life-saving intervention. Just as to properly treat a rattlesnake bite, the medical providers would have needed critical information so they would know to give her the proper antidote, a statement by Robertson and Ashton that Clustka was simply “disoriented” would not cue the medical providers into her specific risk of harm-suicide.
Had the medical providers in this case been told that Clustka was threatening suicide, they would have known to take suicide precautions. Suicide precautions are the antidote that would have saved her. No one who examined Clustka after her interactions with Robertson and Ashton had the critical information that would have “set off alarm bells” that suicide precautions were necessary. Moreover, review of the record shows that the “intervention” Clustka received was minimal. At
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best she was asked if she had a history of wanting to commit suicide, which (as is typical in these cases) she denied. At no time was she thoroughly assessed for risk of suicide or given the battery of tests she would have received had she been taken to the hospital for suicide assessment and treatment.
(c) The TPO Arrest Does Not Defeat Causation
Third, as to the fact that Clustka violated the TPO and was rearrested, that was foreseeable given the officers’ deliberate indifference to her plight. In Cabrales, another jail suicide case, the inmate who made a suicide gesture while in isolation was released into the general population after being determined not suicidal. He became involved in a fight and was “sentenced” to ten days in disciplinary isolation, whereupon he committed suicide. The Ninth Circuit rejected the defendants’ argument that there was no proximate causation between the failure to take suicide precautions and the inmate’s ultimate suicide. It found the defendants’ conduct was the “moving force” behind the suicide. Cabrales, 864 F.2d at 1461. It did not matter that the “intervening event” was the inmate’s involvement in a fight, which landed him in isolation. Just so, in this case the lower court erred in failing to reject the defendants’ argument that there was no causal connection.
Similarly, in another case alleging deliberate indifference to safety, the inmate alleged that a sergeant caused him injury by assigning him to share a cell with a known violent cellmate. Rather than enter the cell, the inmate ran and was beaten by jail guards. The Ninth Circuit rejected the lower court’s reasoning that the inmate’s running constituted an intervening cause of his injury at the hands of third parties. It found that the inmate’s running was a foreseeable consequence of the assignment. The inmate had two alternatives: either enter the cell and risk being injured by the cellmate or run and risk being injured by the guards. Since his running was a foreseeable consequence of the order to enter the cell, the intervening act of his running did not break the change of causation. See White, 901 F.2d at 1505.
Just so, in this matter, it was foreseeable that the officers’ failure to alert jail staff and medical providers of Clustka’s suicidal gesture and threats would cause her not to receive necessary and appropriate care required to prevent suicide. Robertson and Ashton set in motion a series of events that foreseeably ended in Clustka’s jail suicide. Her death was caused by the fact that no suicide precautions were taken, either by the jail or by the hospital on a Legal 2000--and none were taken because Robertson and Ashton failed to alert them to the need. The fact that Clustka was released and rearrested within a matter of hours does nothing to change the calculus.
It was reasonably foreseeable that Clustka would be released without the jail’s doing anything to protect her from self-harmgiven its not being informed about her suicide threats. It was likewise reasonably foreseeable that - in the absence of suicide intervention - Clustka would find herself back in jail, given the TPO, given Clustka’s unmet need to retrieve her belongings from her mother’s home, and given her extremely distraught condition. Her “decision” to violate the TPO was no more independent than the inmate’s “decision” in Cabrales to become involved in a fight and land in isolation. It was a predictable consequence of her disturbed and distressed condition. Clustka would likely not have been released into the streets had the jail been put on notice of her suicide attempt. She would likely have been kept under suicide watch at jail, then sent to the hospital on a Legal 2000 or rejected at the jail and sent to the hospital on a Legal 2000. Either way, she would likely have been safe.
B. The Lower Court Erred In Finding Qualified Immunity
Qualified immunity shields an officer from suit when the officer makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances he confronted. Brosseau v. Haugen, 543 U.S. 194, 599 (2005) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). The focus is on whether the officer had fair notice his conduct was unlawful. Accordingly, reasonableness is judged against the backdrop of the law at the time of the conduct. Id. “The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Id. (quoting Saucier, 533 U.S. at 201-02). Courts take a two-step approach to resolving this question. First the court must determine whether Robertson and Ashton violated the plaintiffs’ constitutional rights. Saucier, 533 U.S. at 201-02. If the answer is in the affirmative, the analysis proceeds to determine whether that right was clearly established at the time.
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1. Robertson and Ashton Violated Clustka’s Right to Be Free of Deliberate Indifference to a Demonstrated Risk of Suicide
For all the reasons previously addressed, Officers Robertson and Ashton violated Brenda Clustka’s right to be free of deliberate indifference to her known risk of harm.
2. The Law Protecting Pretrial Detainees from Deliberate Indifference to Suicide Risk Is Well-Established
The second prong of the two-step qualified immunity inquiry asks whether it would have been clear to a reasonable officer that his alleged conduct was unlawful. See Saucier, 533 U.S. at 202.
The law of deliberate indifference in the context of jail suicides is well-established. Several courts, including the Ninth Circuit, have made clear that at the time of the incidents alleged, Clustka had a clearly established constitutional right to be free from an officer’s deliberate indifference to her potential suicide. Cavalieri, 321 F.3d at 623; Cabrales, 864 F.2d 1454 (jail suicide case decided in 1988). “A particular vulnerability to suicide represents a serious medical need.” Colburn, 946 F.3d at 1023.
C. The Lower Court Erred in Finding No Municipal Liability
Municipalities are “persons” under 42 U.S.C. § 1983 and thus they may be liable for causing a constitutional deprivation. Monell v. Department of Social Services, 436 U.S. 658, 690 (1978). A municipality may be sued when execution of a governmental policy or custom inflicts the injury. Id. A policy is “a deliberate choice to follow a course of action...made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question.” Fairley v. Luman, 281 F.3d 913, 918 (9th Cir. 2002) (per curiam). “A policy can be one of action or inaction.” Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). To impose liability against a municipality for its failure to act, a plaintiff must show: (1) that a city employee violated the plaintiff’s constitutional rights; (2) that the city has customs or policies that amount to deliberate indifference; and (3) that these customs or policies were the moving force behind the employee’s violation of constitutional rights. Id. (citing Gibson v. County of Washoe, 290 F.3d 1175, 1193-94 (9th Cir. 2002)).
For all the reasons addressed in the preceding portions of this brief, Robertson and Ashton violated Brenda Clustka’s right to be free of deliberate indifference to a demonstrated risk of suicide.
1. Failing to Train
“A municipality’s failure to train an employee who has caused a constitutional violation can be the basis for §1983 liability where the failure to train amounts to deliberate indifference to the rights of persons with whom the employee comes into contact.” Long, 442 F.3d at 1186. A plaintiff might succeed in proving a failure to train claim where “a violation of federal rights may be a highly predictable consequence of a failure to equip law enforcement officers with specific tools to handle recurring situations.” Id.
It is a well-known, well-documented fact that suicide is the number one cause of death in U.S. jails. All the witnesses who testified acknowledged the importance of an officers’ obligation to protect persons at risk of suicide. Nonetheless, RPD fails to offer any suicide prevention training to its officers. None of the witnesses who testified could recall any specific policies at RPD on suicide prevention or any training on how to recognize when a person is custody is suicidal and what action to take to protect that person. Robertson testified that, in his 17-year career with RPD he received maybe 15 to 20 minutes training on mental illness.
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2. Failing to Implement Policies
The Ninth Circuit “consistently has found that a [municipality]’s lack of affirmative policies or procedures to guide employees can amount to deliberate indifference, even when the [municipality] has other general policies in place.” Long, 442 F.3d at 1189. The Ninth Circuit explained:
In Gibson, a mentally ill detainee died while in the custody of the county jail. The decedent’s wife sued the county, alleging that it had acted with deliberate indifference to her husband’s mental illness. The district court granted summary judgment in favor of the county. On appeal, this court reversed and remanded, finding that the county’s policy - which precluded a medical evaluation for an incoming detainee who was uncooperative, combative, or intoxicated - failed adequately to instruct the nurse on duty how to act upon medical information, including information from prescription medications, which she obtained from the detainee. The court held that a jury could find that the omission was sufficiently likely to result in the violation of the detainee’s right to medical care that the county was deliberately indifferent to those needs.
Id. (citing Gibson, 290 F.3d at 1195). Similarly, Nevada law on Legal 2000 is extremely protective of persons at risk of suicide and RPD witnesses all acknowledged their strong duty to protect persons to make suicide attempts and threats. However, as they also consistently testified, RPD has no policies addressing suicide prevention and has not trained its officers on their duty how to act when handling potentially suicidal persons.
3. The Known Deficient Robertson
Another way to establish municipal liability is to show how RPD was aware of similar misconduct in the past, but failed to take reasonable precautions against future violations, and that this failure, at least in part, led to the injury. Bielevicz v. Bubinon, 915 F.2d 845, 851 (3rd Cir. 1990). RPD knew well Robertson’s several deficiencies in judgment, knowledge of laws, policy and procedure, reporting, and other violations repeatedly referenced in documents submitted under seal (See ER 473-538). RPD had an obligation to take remedial measures to correct his blatant errors in judgment. Instead of meeting its obligation, RPD did nothing. Robinson was never suspended, never had his pay docked, and was never required to attend additional training. “Tolerance of unconstitutional conduct is tantamount to encouragement of such conduct and is there fore a basis for municipal liability.” Skiby v. City of New York, 109 F.R.D. 58, 65 (E.D.N.Y. 1985). RPD knowingly let Robinson “slip through the cracks” over his seventeen-year career and placed him in a position involving high interaction with the public and exercise of discretion transporting people to the jail while mentoring a new officer. RPD’s knowing failure to rein in this deficient officer created constitutional time bomb and Clustka, at high risk of suicide, was its predictable victim.
4. Failing to Discipline
The Ninth Circuit has held that post-event evidence is admissible for proving the existence of a municipal defendant’s policy or custom and may be highly probative of that inquiry. Henry v. County of Shasta, 132 F.3d 512, 520 (9th Cir. 1997). It is undisputed that both Robertson and Ashton were found to have violated RPD policies and procedures in their failure to report Clustka’s suicide attempt and threats. It is similarly undisputed that neither officer received any discipline for this extraordinary violation. Reno’s worse than inadequate response to these officers known violations gives a strong message: So far as Reno is concerned, that what happened to Clustka as a result of the officers’ indifference just didn’t matter.
VII. CONCLUSION
24

Charla CONN, Dustin Conn, Plaintiff-Appellants, v. CITY..., 2007 WL 2734637...

For reasons stated, plaintiffs ask this Court to reverse the lower court’s grant of summary judgment to the defendants and to remand this case for trial.

STATEMENT OF RELATED CASES Plaintiff-Appellants are aware of no related cases pending before the court.

Footnotes

1

Legal 2000 is Nevada’s emergency admission procedure whereby mentally ill persons deemed a danger to themselves or others

may be involuntarily committed to a mental health facility for up to 72 hours. See NRS §433A.115 (ER 246).

2

Goss et al., “Characteristics of Suicide Attempts in a Large Urban Jail System with an Established Suicide Prevention Program,”

Jail Suicide/Mental Health Update, Vol. 11, No. 3, pp. 1-6 (Fall 2002) (ER 385).

3

Jutzi-Johnson v. U.S.A., 263 F.3d 753, 757 (7th Cir. 2001) (citing Hayes et al., “National Study of Jail Suicides: Seven years Later”

(National Center on Institutions and Alternatives, Feb. 1988)).

4

Reno Gazette Journal, “Inmate, 43, Reportedly Hangs Herself in Jail” (Crime & Courts, April 30, 2003) (ER 392).

5

Clustka was reportedly drunk in public with a blood alcohol of .10. There is no dispute that she was bothering no persons and

breaking no laws.

6

See ER 412-13.

End of Document

25

 </s> Charla CONN; Dustin Conn; Estate of Brenda Clustka,..., 2007 WL 4266351...

2007 WL 4266351 (C.A.9) (Appellate Brief) United States Court of Appeals, Ninth Circuit.
Charla CONN; Dustin Conn; Estate of Brenda Clustka, Plaintiffs-Appellants, v.
CITY OF RENO; Ryan Ashton; David Robertson, Defendants-Appellees.
No. 07-15572. September 27, 2007.
District Court No. CV05-00595-HDM Nevada (Reno) On Appeal from the United States District Court for the District of Nevada

Appellees’ Answering Brief

John J. Kadlic, Reno City Attorney, Donald L. Cristensen, Deputy City Attorney, Nevada State Bar No. 1657, Post Office Box 1900, Reno, Nevada 89505, (775) 334-2050, Attorneys for City of Reno, Ryan Ashton, David Robertson.
*i TABLE OF CONTENTS

1. STATEMENT OF JURISDICTION ...........................................................................................................................................

1

2. STATEMENT OF ISSUES ............................................................................................................................................................

1

3. STATEMENT OF THE CASE .....................................................................................................................................................

2

A. Nature of the Case .............................................................................................................................................................................

2

B. Course of Proceedings Below .......................................................................................................................................................

3

4. STANDARD OF REVIEW ............................................................................................................................................................

4

5. SUMMARY OF ARGUMENT ....................................................................................................................................................

5

6. FACTUAL DISCUSSION ..............................................................................................................................................................

7

A. Clustka was repeatedly evaluated for suicide risk before April 25, 2005 and released within hours every

7

time ................................................................................................................................................................................................................

B. The jail places Clustka on suicide watch on March 20, 2005 ...........................................................................................

9

C. Clustka is found not to be suicidal at 9:30am April 26 .......................................................................................................

10

D. The officers properly transport Clustka to jail for CPC ......................................................................................................

12

E. The officers committed no disciplinary offense .....................................................................................................................

17

F. Clustka is medically evaluated at jail, not found to be suicidal and released without incident ............................

18

G. Clustka is evaluated at WMC, not found to be suicidal and discharged ......................................................................

19

H. Clustka is arrested on a misdemeanor charge, not found to be suicidal and assigned to the mental health

20

1

Charla CONN; Dustin Conn; Estate of Brenda Clustka,..., 2007 WL 4266351...

unit .................................................................................................................................................................................................................

I. Clustka commits suicide ...................................................................................................................................................................

22

7. LEGAL DISCUSSION ....................................................................................................................................................................

23

A. The applicable legal principles .....................................................................................................................................................

23

B. The officers did not subject Clustka to a substantial risk of serious harm ...................................................................

26

C. Defendants were not deliberately indifferent to Clustka’s health or safety .................................................................

30

*ii D. Plaintiffs failed to show the officers’ acts were a cause in fact of Clustka’s suicide ........................................

38

1. Choosing not to initiate a Legal 2000 commitment did not cause Clustka’s suicide ...............................................

40

2. The act of not informing jail personnel of Clustka’s conduct did not cause her suicide .........................................

45

G. Plaintiffs failed to show the officers’ acts were the proximate cause of Clustka’s suicide ...................................

49

H. The individual defendants are entitled to qualified immunity ..........................................................................................

52

I. There is no basis for municipal liability .....................................................................................................................................

54

8. CONCLUSION ...................................................................................................................................................................................

58

*iii TABLE OF AUTHORITIES

CASES

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) .....................................................

4

Arnold v. International Business Machines Corp., 637 F.2d 1350 (9th Cir.

38

1981) ....................................................................................................................................................

Blue Ridge Insurance Co. v. Stanewich, 142 F.3d 1145 (9th Cir. 1998) ...................

5

British Airways Board v. Boeing Co., 585 F.2d 946 (9th Cir. 1978) ..........................

4

Cabrales v. County of Los Angeles, 864 F.2d 1454 (9th Cir. 1988) ...........................

47

Coleman v. Parkman, 349 F.3d 534 (8th Cir. 2003) .........................................................

34

Cook ex rel. Estate of Tessier v. Sheriff of Monroe County, Fla., 402 F.3d 1092

31

(11th Cir. 2005) ...............................................................................................................................

Doty v. County of Lassen, 37 F.3d 540 (9th Cir. 1994) ...................................................

26

Duckworth v. Franzen, 780 F.2d 645 (7th Cir. 1985) .......................................................

24

Estate of Cartwright v. City of Concord, 856 F.2d 1437 (9th Cir. 1988) ..................

30

Estelle v. Gamble, 429 U.S. 97 (1976) ...................................................................................

24

2

Charla CONN; Dustin Conn; Estate of Brenda Clustka,..., 2007 WL 4266351...
Farmer v. Brennan, 511 U.S. 825 (1994) .............................................................................. Jett v. Penner, 439 F.3d 1091 (9th Cir. 2006) ..................................................................... Frost v. Agnos, 152 F.3d 1124 (9th Cir. 1998) .................................................................... Gibson v. County of Washoe, 290 F.3d 1175 (9th Cir. 2002) ........................................ Hoptowit v. Ray, 682 F.2d 1237 (9th Cir. 1982) ................................................................. Hunley v. Ace Maritime Corp., 927 F.2d 493 (9th Cir. 1991) ....................................... Jett v. Penner, 439 F.3d 1091 (9th Cir. 2006) ..................................................................... John v. Johnson, 414 U.S. 1033 (1973) ................................................................................. Johnson v. Duffy, 588 F.2d 740 (9th Cir. 1978) .................................................................. Long v. County of Los Angeles, 442 F.3d 1178 (9th Cir. 2006) ................................... Monell v. Dep’t of Social Services of City of N.Y., 436 U.S. 658 (1978) .................. Moreau v. Air France, 356 F.3d 942 (9th Cir. 2004) ....................................................... *iv Saucier v. Katz 533 U.S. 194 (2001) ............................................................................... Snow v. City of Citronelle, 420 F.3d 1262 (11th Cir. 2005) ........................................... T. W. Electrical Service, Inc., v. Pacific Electrical Contractors Association, 809 F.2d 626 (9th Cir. 1987) ...................................................................................................... Taylor v. List, 880 F.2d 1040 (9th Cir. 1989) ...................................................................... Toguchi v. Chung, 391 F.3d 1051 (9th Cir. 2004) ............................................................. Triton Energy Corporation v. Square D Company, 68 F.3d 1216 (9th Cir. 1995) .................................................................................................................................................... Turney v. Waterbury, 375 F.3d 756 (8th Cir. 2004) .......................................................... United States v. Daniel, Mann, Johnson & Mendenhal, 355 F.3d 1140 (9th Cir. 2004) .................................................................................................................................................... White v. Roper, 901 F.2d 1501 (9th Cir. 1990); .................................................................. W. Prosser & W. Keaton, The Law of Torts, (5th ed. 1984) (“Prosser”) ................... Whitley v. Albers, 475 U.S. 312 (1986) .................................................................................. Wilson v. Seiter, 501 U.S. 294 (1991) ..................................................................................... Statutes
3

25, 26, 30 26 25 54 25 49
25, 26, 38 24 39 55 54 4 52
31, 48 4
5 31
4
48 5
39, 49, 50 39, 49, 50
23, 25 23, 24

Charla CONN; Dustin Conn; Estate of Brenda Clustka,..., 2007 WL 4266351...

NRS 458.270 ....................................................................................................................................

2

NRS 484.641(1)(b) .........................................................................................................................

14

*1 1. STATEMENT OF JURISDICTION
Respondents agree with appellants’ statement of jurisdiction.
2. STATEMENT OF ISSUES
1. Was summary judgment properly granted when an intoxicated, angry Brenda Clustka wrapped a seatbelt around her neck to cause police officers to stop the transport vehicle and asked the officers to kill her or she would kill herself just hours after a psychiatrist had determined Clustka was not at risk for suicide because she did not present an objective risk of suicide?
2. Was summary judgment properly granted because the officers with no knowledge of Clustka’s prior suicide threats did not subjectively believe Clustka was suicidal based on their assessment of all the circumstances?
3. Was summary judgment properly granted because the officers’ actions in not reporting the seatbelt incident did not cause Clustka’s suicide two days later after she had been repeatedly evaluated by medical personnel who did not find her to be at risk for suicide, any report would not have been available to jail intake personnel and the jail already knew she had been on suicide watch the month before?
4. Were the individual defendants entitled to summary judgment because they were protected by qualified immunity?
*2 5. Was summary judgment properly granted because plaintiffs failed to show that any custom or policy of the City caused any harm to Clustka?
3. STATEMENT OF THE CASE
A. Nature of the Case
Police officers Ryan Ashton and David Robertson were called upon to make a routine transport of Brenda Clustka to jail for civil protective custody1 (“CPC”) because she was intoxicated and unable to care for herself. They had no knowledge of Clustka’s prior threats to commit suicide. Their task was to safely transport an angry intoxicated woman to the jail owned and operated by Washoe County.

When Clustka saw they were headed to jail, she tried to get the officers to stop the vehicle by tapping on the camera in the rear compartment. When that failed, she wrapped the seatbelt around her neck causing the officers to stop. While they took her hands off the seatbelt, she shouted at them to kill her or she would kill herself. The officers did not believe she was suicidal based on all the circumstances and made no report of the incident. Clustka was taken to jail without further incident and safely released just a few hours later when she became sober.
Just hours before Clustka was taken into custody, she had been released from Nevada Mental Health Institute (“NMHI”) by a psychiatrist who determined *3 she was not at risk for suicide. She was subsequently medically cleared by emergency medical personnel at the scene. Within the next 24 hours after the officers delivered her to jail, Clustka was evaluated three times by medical personnel, none of whom found her to be at risk for suicide.
The next day Clustka was arrested on misdemeanor charges and taken to jail again. Clustka had been placed on suicide watch the second day of confinement the prior month when she was arrested on a misdemeanor charge. The jail did not put her on suicide watch this time. This time on the second day, Clustka committed suicide.
4

Charla CONN; Dustin Conn; Estate of Brenda Clustka,..., 2007 WL 4266351...
Even if the officers had made a report of the seatbelt incident, it would not have been available to jail personnel when she was subsequently jailed. No medical evaluation of Clustka would have been any different if a report had been made. The conduct of the officers did not cause Clustka’s suicide. Plaintiffs’ assertions of what would have occurred if the officers had acted differently are speculation unsupported by the evidence.
B. Course of Proceedings Below
Defendants agree with plaintiffs’ description of the course of proceedings in the district court. In granting summary judgment to defendants, the district court concluded that the evidence was insufficient to establish that: (1) the individual defendant police officers were deliberately indifferent to any serious medical need *4 of Clustka; (2) any act of the defendants caused harm to Clustka; and (3) any custom or policy of the City caused harm to Clustka.
4. STANDARD OF REVIEW
A grant of summary judgment is reviewed de novo. Moreau v. Air France, 356 F.3d 942, 945 (9th Cir. 2004). Once the moving party presents evidence that would call for judgment as a matter of law at trial if left uncontroverted, the nonmoving party must show by specific facts the existence of a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). Summary judgment should be granted where the nonmoving party fails to offer evidence from which a reasonable jury could return a verdict in its favor. Triton Energy Corporation v. Square D Company, 68 F.3d 1216, 1221 (9th Cir. 1995).
A mere scintilla of evidence is not sufficient to find a genuine issue of material fact because a jury is permitted to draw only those inferences of which the evidence is reasonably susceptible. British Airways Board v. Boeing Co., 585 F.2d 946, 952 (9th Cir. 1978). An inference as to another material fact in favor of the nonmoving party may be drawn only if it is rational or reasonable and otherwise permissible under the governing substantive law. T. W. Electrical Service, Inc., v. Pacific Electrical Contractors Association, 809 F.2d 626, 631 (9th Cir. 1987). Moreover, “[i]f the factual context makes the non-moving party’s claim of a disputed fact implausible, then that party must come forward with more persuasive *5 evidence that otherwise would be necessary to show there is a genuine issue for trial.” Blue Ridge Insurance Co. v. Stanewich, 142 F.3d 1145, 1149 (9th Cir. 1998). Conclusory allegations unsupported by factual data cannot defeat a motion for summary judgment. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).
This court may affirm a grant of summary judgment on any ground supported by the record, even if not relied on by the district court. United States v. Daniel, Mann, Johnson & Mendenhal, 355 F.3d 1140, 1144 (9th Cir. 2004).
5. SUMMARY OF ARGUMENT
The Eighth Amendment, which applies to the States through the Due Process Clause of the Fourteenth Amendment, prohibits the infliction of cruel and unusual punishment on pretrial detainees. When the alleged deprivation is a claimed failure to address the serious medical needs of a detainee, plaintiffs must establish that a defendant was deliberately indifferent to the detainee’s serious medical needs by showing (1) the alleged deprivation was objectively sufficiently serious; (2) defendant knew of and disregarded an excessive risk to the detainee’s health; and (3) defendant’s act or omission to act caused the injury. Plaintiffs failed to establish these elements.
Plaintiffs failed to show that defendants could be held liable on their claim of deliberate indifference. Clustka did not present such an objectively serious threat of suicide that her confinement without further action posed a substantial *6 risk of serious harm. The officers reasonably thought they were dealing with an angry manipulative detainee. A seasoned psychiatrist found she did not present a risk of suicide just five hours earlier. Clustka made no attempt to harm herself during the detention initiated by defendants. Within hours of her release, an emergency room physician found no reason to consider her suicidal and the next day a jail nurse reached the same conclusion when Clustka was arrested on misdemeanor charges. Because Clustka was not objectively suicidal, defendants cannot be held liable.
Defendants considered all the circumstances of Clustka’s conduct and did not subjectively think she was suicidal. Plaintiffs’
5

Charla CONN; Dustin Conn; Estate of Brenda Clustka,..., 2007 WL 4266351...
arguments are aimed only at trying to establish that defendants should have known she was suicidal even though they didn’t think so. Plaintiffs’ argument that the officers must have known of a suicidal risk and didn’t report the incident because of potential discipline ignores the facts. Neither officer thought they had done anything wrong and were not concerned about potential discipline. Their sergeant was concerned only because they did not tell him of the incident.
Plaintiffs failed to show the act of not reporting the seatbelt incident caused the suicide. Plaintiffs’ argument is based entirely on speculation unsupported by the evidence. No harm came to Clustka when she was jailed for CPC. If defendants had reported Clustka’s conduct, no additional action would have been *7 taken. CPC reports are not reviewed by nursing staff at the jail if the same person is later arrested on a misdemeanor charge. Medical evaluations are not based on prior reports and Clustka would not have been kept for any extended time period at any health facility even if she was suicidal. Clustka’s condition was repeatedly assessed by medical professionals between the two confinements and never found to present a risk of suicide.
Even if the officers were found to have caused the suicide by deliberate indifference, they were entitled to qualified immunity. It was not clear to a reasonable officer that his conduct in not making a report under the specific circumstances was clearly unlawful.
There is also no basis for municipal liability. There was no policy or practice that caused Clustka’s suicide.
6. FACTUAL DISCUSSION
A. Clustka was repeatedly evaluated for suicide risk before April 25, 2005 and released within hours every time.
In the year prior to her death, Clustka became well known at Washoe County Detention Facility (“the jail”) as a repeat misdemeanor offender. AOB, p.8. From May 17, 2004, through April 21, 2005, she was jailed on five occasions involving three charges of battery, two charges of petit larceny and two charges of driving under the influence. On each occasion she was taken to jail by RPD *8 officers. There is no evidence of any unusual behavior by her during any of these incidents. ER23-27.
Clustka was also repeatedly evaluated by medical professionals on a Legal 2000.2 Clustka attempted suicide four times of which her mother was aware. When Clustka originally began talking about suicide in 1999, it was more just for attention. Her mother knew Clustka had a severe alcohol and prescription drug addiction, drinking about a fifth of vodka every day and taking Xanax on a daily basis “like its Pez candy”. ER35.
On September 14, 2001, police brought Clustka to Washoe Medical Center (“WMC”) when she threatened suicide by cutting her wrist with a piece of glass. Clustka was admitted at 7:00 a.m. at NMHI, evaluated by Dr. Caplan and discharged at 6:00 p.m. that same day with a recommendation for outpatient counseling. ER98-107. There is no evidence Clustka followed this recommendation.
On August 16, 2003, Clustka was brought to St. Mary’s Hospital when she attempted suicide by cutting her wrist with a razor. She was transferred to NMHI on a Legal 2000 and discharged the next morning with instructions to follow-up with her primary care physician, Alcoholics Anonymous and clinical services. *9 ER109-121. There is no evidence Clustka followed any of these recommendations.
On April 3, 2004, police brought Clustka to the emergency room at WMC after she had taken 20 tablets of Benadryl, drank ½ pints of Bacardi for the prior 3 days and stated she did not want to live. Although a psychiatrist recommended Clustka be admitted to NMHI, Clustka informed the social worker at WMC that if she was sent to NMHI she would lose the new job she was about to start. ER123-131. There is no evidence Clustka was transferred to NMHI or that she followed any discharge recommendations.
6

Charla CONN; Dustin Conn; Estate of Brenda Clustka,..., 2007 WL 4266351...
B. The Jail Places Clustka On Suicide Watch On March 20, 2005.
On March 19, 2005, RPD officers McQuattie and Pitsnogle were dispatched to Clustka’s mother’s home because after Clustka was told to leave, she pushed her 74 year old mother to the ground causing her to hit her head on the kitchen counter. Clustka’s brother called 911. ER30-31.
Officers Hoyt and Ashton stood by at WMC with Clustka who had been driven there by her daughter. Clustka was treated and then arrested for domestic battery by McQuattie and Pitsnogle.3 ER30-31.
*10 On March 20 the jail placed Clustka on a suicide watch after she made suicidal statements. No jail official applied for a Legal 2000 commitment to address any suicidal condition. Instead, Clustka was held at the jail until April 21. ER 36; 39-42; 169 @34:14-15.
C. Clustka Is Found Not To Be Suicidal At 9:30 A.M. April 26.
On the morning of April 25, 2005, Clustka was again taken to WMC for a psychiatric evaluation. Clustka’s mother informed staff that Clustka had been combative, had a bottle of pills for anxiety (Xanax) and threatened to kill herself that morning.4 ER133.
Clustka was evaluated by Dr. Gansert. He has transferred hundreds of patients to NMHI on a Legal 2000 over his 17 years as an emergency room physician. Every psychiatric evaluation he performs is based on its individual merit and according to the specific circumstances then present. He did not review any records from Clustka’s prior visits to WMC in evaluating her. Dr. Gansert transferred Clustka to NMHI noting that Clustka had made suicidal threats with a plan and the means to carry it out. If Clutska had been brought in for another evaluation the very next day, Dr. Gansert could only speculate what his evaluation would have concluded. Clustka was taken to NMHI about 4:10 that afternoon. *11 ER324@7:25- 8:1-20; ER325@10:5-6; 327@18:6 - 19: 1-11; ER133-134; ER141; ER136; ER324@6:11-23.
On arrival at NMHI Clustka was again evaluated by psychiatrist Dr. Caplan. Clustka was not found to be a suicide risk on arrival at NMHI but she was kept overnight for observation. When evaluating an intoxicated patient who has stated she wants to kill herself, Caplan agrees that one must look at all the circumstances surrounding that comment and analyze whether or not that statement was made because of the intoxication or whether she truly has that intention. When a person is intoxicated, her judgment is not as good and she could say something she would have no intention of doing if sober. ER91@2-8; ER419.
Clustka was discharged at 9:30 the morning of April 26. At the moment of discharge, Caplan judged Clustka not to be at risk for suicide. Although Caplan believed Clustka’s Xanax abuse would be a risk to her safely, he returned that medication to her upon discharge. Clustka was instructed to follow-up with an alcohol treatment program and not to mix alcohol and medications. There is no evidence Clustka followed the discharge recommendations. ER91@108:2-22; ER81;ER 84.
Even when a patient arrives on a Legal 2000 with a specific threat of suicide, NMHI does not necessarily keep the patient for the full 72 hour period allowed by law. A patient is kept only until the patient is no longer deemed at risk for suicide. *12 That determination is made by simply observing the patient and talking with her. ER88@80:18-25- 81:1-17.
D. The Officers Properly Transport Clustka To Jail For CPC.
Less than 5 hours after Clustka was determined not be at risk for suicide, a Regional Emergency Medical Services Authority (“REMSA”) medical crew was dispatched on April 26, 2005 on a 911 call categorized as “Unknown Problem (Man Down)”. On arrival, medical personnel found Clustka lying on the sidewalk and assessed her as requiring CPC. ER424-426.
Officers Robertson and Ashton were dispatched to assist REMSA. The officers were told by REMSA personnel that Clustka had been medically cleared and was being released to them for CPC. Robertson understood that REMSA performed a mental and physical evaluation of Clustka before releasing her. Ashton recognized Clustka but didn’t recall where he had seen her
7

Charla CONN; Dustin Conn; Estate of Brenda Clustka,..., 2007 WL 4266351...
previously. ER182 @15:21-25 - 16:1; ER218@60:1-3; ER182@16:18-23.
Both officers thought Clustka was intoxicated. She had difficulty walking and was belligerent to the officers. She had slurred speech and red watery eyes. She gave a breath sample for alcohol which registered .10. The officers conducted a wants and warrants check which informed them Clustka had violent tendencies, abused drugs, was alcoholic and had unspecified mental health problems. ER181@10:1-25 - 11@1-2; ER218@58:6-25 - 59:5-9; ER219@64:8-12; ER47.
*13 The officers told Clustka they were taking her to jail for CPC. When Robertson asked her to get in the prisoner transport vehicle, Clustka objected and told him she wanted him to take her home to get her things. To get Clustka into the vehicle, Robertson told her he would take her home. Clustka then voluntarily climbed into the rear of the vehicle with the officers holding her arms so she wouldn’t fall. When she got into the vehicle, she had become calm. ER221@69:5-25 - 70:1-3; ER194@64:8-12; ER188@37:3-7.
Clustka was not handcuffed in the vehicle, but was seatbelted in. Robertson believed handcuffing was not required and elected not to do so. Ashton had been an officer just five months and does not recall knowing whether he was required to do so at the time. Department policy leaves handcuffing to the discretion of the officer. ER239@143:2-4; ER182@14:18-24; ER289@88:18-23.
On the way to jail, Officer Ashton watched Clustka in the rear compartment through the surveillance camera. She became belligerent, uncooperative and angry when she saw she was being taken to jail. Her attitude changed back to what it had been before she entered the vehicle. Ashton saw her undo her seatbelt, crawl to the front of the compartment and place her fingers back and forth on the camera as if to get their attention. Ashton asked Robertson if they should stop to put her back in the seat. Robertson told him no because they were almost at the jail, but did say to watch her closely. Ashton felt that if they went back to try to put her in her seat *14 an unnecessary confrontation would result. Their immediate supervisor would also have left her unbelted because of the proximity to the jail. Nevada state law did not require the City to use seat belts for passengers in the rear of the police transport vehicle.5 ER149; ER183@20:3-5; ER185@26:12-25; ER188@38:21-25; ER188@40:8-14; ER214@42:18-43:2; ER290@90:4-12.
When Ashton saw Clustka wrapping a seatbelt around her neck, he told Robertson who stopped the vehicle. The officers went into the rear compartment where they found Clustka holding the seatbelt wrapped on her neck. Robertson recalls Clustka was angry and screaming, “You lied to me. I want to die, kill me, you lied to me.” ER215@44-45.
The officers each took one of Clustka’s clenched hands to get them off the seatbelt. Clustka did not resist their efforts. When they took Clustka’s hands off the seatbelts, she fell to the floorboard of the vehicle. While the officers tried to put handcuffs on her, Ashton recalls Clustka telling them: “You lied to me. Just kill me. I’ll just kill myself then.” Clustka told them to kill her prior to saying she was going to kill herself. The officers then handcuffed her with flexible handcuffs for the duration of the remaining short ride to the jail. Clustka was angry when she *15 arrived at jail. When the door of the vehicle was opened, Clustka screamed at them to kill her, beat her, and that she wanted to die. ER149-150; ER195@66:9-12 & 23-25 - 67:1; ER187 @34:15-17; ER228@100:23-25; ER229@101:1-5;ER215@46:25-47:3.
Over his 18 years of experience, Officer Robertson had many prisoners, drunk and sober, state they wanted to kill themselves. Robertson believed, just as do Drs. Gansert and Caplan, that a determination of whether an individual is a threat to harm herself depends on an assessment of all the circumstances presented, including whether the person is intoxicated. Based on his assessment of all the circumstances, Roberston did not believe Clustka’s wrapping the seatbelt around her neck was an attempt to harm herself. He thought this conduct resulted from her anger at being taken to jail and was an attempt to manipulate the situation. ER231@111:20-25 -112:1-2; ER216@49:7-25; ER216@ 50:1-25;ER216@51:1-14.
Officer Ashton understands there are procedures to follow if he believes a detainee is a danger to harm herself. That decision is made based on the observations he makes. He believes intoxication is a factor when assessing credibility. Determining whether a statement by an intoxicated individual that she intends to kill herself is actually a suicide threat depends on all the circumstances presented. Because of the need to assess all the factors, he cannot make an *16 absolute statement that a suicide threat from an intoxicated individual may be disregarded. ER190@45:22-25 - 46:1; ER191@49:9-15; ER193@58:116.
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With respect to Clustka’s specific situation, Ashton did not view her acts as a suicide threat. Clustka knew the officers were watching her through the camera. Even if she passed out from the wrapped seatbelt, she would have lost all tension on the belt when she did pass out and could not have killed herself. Ashton didn’t think Clustka’s conduct in the transport vehicle was a joke, but he didn’t think it was a suicide attempt. Clustka had been trying to get their attention the entire duration of the trip and he saw her conduct as just a further attempt to get their attention. ER149, 151; ER186@31: 15-24.
When the officers and Clustka arrived at jail, the incident was not reported to jail personnel. Ashton had been sworn in as a police officer just four months earlier and never had anything like that occur to him. It never crossed his mind to inform jail personnel or write a report of what occurred. Roberston also didn’t think about informing jail personnel of what occurred. ER215@47:1-3; ER152; ER182@15:4-5; ER235@127:19-25 - 128:1-3; ER196@70:4-21.
Dr. Caplan testified that if Clustka had a blood alcohol level of .10 on April 26, she could not have been admitted for evaluation at NMHI until she detoxed. Keeping Clustka at the CPC facility at the jail until she sobered up was an appropriate measure to take. The officers could not initiate a Legal 2000 because *17 of her intoxication. If the nursing staff at jail determined Clustka was suicidal, they could have sent her to the emergency room for evaluation and the medical personnel there could have decided whether to send her to NMHI. ER 422@154-155; ER338@32:18-25 - 33:1-6.
E. The Officers Committed No Disciplinary Offense.
The immediate supervisor of the officers, Sergeant Evans, learned of the incident the next day. Sergeant Evans thought the officers did not have the option of taking Clustka to a medical facility for evaluation because she was grossly intoxicated and needed to be placed in a secure facility to sober up. Evans told both officers that because of the unusualness of the situation, he wanted to be informed of that kind of an occurrence. Although it was discretionary on the officers’ part as to whether to handcuff the intoxicated Clustka, he would personally have handcuffed her because of the report of violent tendencies. If Evans had been in the transport vehicle that day and saw Clustka walking around in the back of the van, he may well have also continued on to the jail without stopping to reseatbelt her if they were close enough. ER286@75:5-17; ER288@84 - 92; ER289@89:18-23.
If an officer is transporting a detainee to jail and the detainee says “I want to kill myself, Evans believes the officer involved should explore the situation by trying to determine how serious that person is by assessing whether the person had *18 a plan and the means to carry it out. The primary concern of the officer in that situation should be to try to determine if the individual is presently trying to commit suicide. The question of which officials an officer might inform of that conduct would be in the officer’s discretion and depend on the circumstances. Sergeant Evans is not aware of any policy that requires a transporting officer in the situation to inform jail staff of what occurred. It is undisputed that neither officer was disciplined for their actions. ER278@43:1 - 44:23; ER279@46:25 - 47:12.
F. Clustka Is Medically Evaluated At Jail, Not Found To Be Suicidal And Released Without Incident.
Clustka arrived at jail about 3:45 p.m. on April 26. Upon arrival the standard processing for a CPC is to medically assess the individual including her mental health. Clustka denied any medical injuries and was assessed as only mildly anxious, properly oriented and not recommended for transfer to the hospital upon release. ER428-430; ER315@66:5-25 - 67:1.
Gail Singletary has been employed by Prison Health Services (“PHS”) as the Health Services Administrator at the jail since May 2000. PHS has a contract with Washoe County to provide medical services to the jail. Singletary has been a registered nurse since 1978 with a background primarily in psychiatric nursing from working in hospitals for the criminally insane and adult acute psychiatric facilities. ER162@6:7-25 -7:1-21.
*19 When asked whether the officers should have let the nursing staff know of the seatbelt incident and what value this information could have been to the nurses, Singletary responded that, “They would have an opportunity to do a more complete evaluation of the person’s mental status, which would have been difficult given the intoxicated state.” In any event, a statement of suicide is only one factor considered in assessing risk. ER173@52:19 - ER 174@53:20; ER171 @41:8-16.
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As of 3:45 p.m. Clustka’s blood alcohol level was still at .10. By 8:00 p.m., her level had dropped to .032 and she was released. While at the jail during her confinement for CPC, there is no evidence Clustka made any statement or gesture indicating any intention to kill herself. ER428, 430.
G. Clustka Is Evaluated At WMC, Not Found To Be Suicidal And Discharged.
Following her release, Clustka could not return to her mother’s home because her mother had obtained a temporary protective order that required Clustka to stay away from the home. Clustka was picked up in the late evening on April 26 for CPC by police officers who initially took her to the jail which refused her admission because she was not intoxicated on ethanol. Not knowing what else to do, police brought Clustka to the emergency room at WMC. ER44; AOB, p.14; ER432.
Clustka had twice been evaluated at the WMC emergency room before 2005. On April 25, 2005, Clustka was evaluated there and sent to NMHI by Dr. *20 Gansert. There is no evidence that Dr. Sanders, the emergency room physician on duty April 26 and 27, reviewed any records that pertained to Clustka’s prior evaluations. Although the emergency room physician apparently conducted the usual thorough evaluation, he reported no basis for making any referral to NMHI and discharged Clustka.6 ER432.
H. Clustka Is Arrested On A Misdemeanor Charge, Not Found to Be Suicidal And Assigned To The Mental Health Unit.
Just before noon on April 27, RPD Officer Fox was dispatched to Clustka’s mother’s home on a report of an individual violating a temporary protective order. Fox met with Clustka’s brother who was escorting Clustka out of the house. Fox confirmed the issuance of the protective order and took Clustka to jail for violating it. ER51.
At the jail, Clustka was medically screened by the PHS nurse. When an inmate is admitted on a criminal charge, the nursing staff can access that person’s history to see whether she was previously placed on a suicide watch at the jail. The nurse can look at the medical file maintained by the jail for that person and review her history. Those records are kept by the jail for two years. If an inmate is behaving normally when she comes in, but has a history of a suicide problem at the *21 jail, it would be helpful for the nursing and jail staff to know that. ER168@30:16-24; @31:1-7; @32:2-20.
Although medical records for an inmate previously jailed in connection with a criminal charge are available to the nursing staff, information related to a prior confinement for CPC status are typically not accessed by the nurse when someone is subsequently arrested and brought to jail. Specifically, for Clustka who was brought in on CPC the prior day, unless the same nurse was working intake when Clustka was brought in for CPC and had knowledge of the reported conduct and was also working the next day when Clustka was evaluated, there would be no way for the second nurse to know about the prior CPC information.7 And even if the nurse on the subsequent occasion knew of the prior conduct, at the most that information would have provided a “heads-up”. Even if the screening nurse knew an individual had made a suicidal threat the day before, that information would not have been sufficient to make an absolute determination regarding placement. A variety of variables would come into play in assessing the individual including the fact she was intoxicated when the threat was made. ER174@54:18 - 55:9.
*22 Clustka made no suicidal comments when screened. However, because of Clustka’s anxiety disorder, substance abuse and mental health history (including the jail suicide watch a month earlier), Clustka was placed in Housing Unit 3 (“HU3”), the mental health unit at the jail. HU3 is where an inmate who is too psychotic or needs a more supportive environment is placed. HU3 does not contain the suicide watch cells which are typically maintained in the jail infirmary. Despite the availability of records that revealed the prior suicide watch Clustka had been placed on, an evaluation by the psychiatric nurse was delayed until April 28. ER36; AOB, p.15; ER58; ER315@67:19-25.
I. Clustka Commits Suicide. 10

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On the morning of April 28, Clustka left HU3 for her arraignment. Clustka acted confused and asked why she was being housed in HU3. She seemed tired but in a good mood upon reaching the video courtroom. However, after pleading not guilty, Clustka appeared upset. She blamed the police for everything that had happened to her. As Clustka neared her cell, she told the deputies she wanted to call a local attorney to get her out of jail. She was told she could make a call later and became upset as she was placed in her cell.8 Clustka was returned to her cell at 8:35. ER36, 60, 61.
*23 At 8:42 a security check was logged on the shift activity log. At 9:15, another deputy called Clustka over the intercom for tier time with no response from Clustka. At 9:17, it was discovered Clustka had committed suicide by hanging herself by a bed sheet tied around her neck and upper bunk. ER 36.
7. LEGAL DISCUSSION
A. The applicable legal principles.
The premise of plaintiffs’ argument is that Ashton and Robertson caused Clustka’s death because they did not inform County jail employees of the seatbelt incident or take her to the hospital for evaluation on April 26. Plaintiffs allege that defendants had a constitutional obligation to protect Clustka from killing herself and that by choosing not to take these actions, breached that duty.
The Eighth Amendment, which applies to the States through the Due Process Clause of the Fourteenth Amendment, prohibits the infliction of “cruel and unusual punishments” on those convicted of crimes. Wilson v. Seiter, 501 U.S. 294, 296-297 (1991). To be cruel and unusual punishment forbidden by the Eighth Amendment, conduct that does not purport to be punishment must involve more than ordinary lack of due care for the prisoner’s interests or safety. Whitley v. Albers, 475 U.S. 312, 319 (1986). The Supreme Court’s cases mandate inquiry *24 into the official’s state of mind when it is claimed that the official has inflicted cruel and unusual punishment. Wilson v. Seiter, supra, at 299. “The source of the intent requirement is the Eighth Amendment itself which bans only cruel and unusual punishment.” Id. at 300 (emphasis in original). “The infliction of punishment is a deliberate act intended to chastise or deter.” Id.(quoting with approval Duckworth v. Franzen, 780 F.2d 645, 652 (7th Cir. 1985), cert. denied, 479 U.S. 816 (1986)). “The thread common to all [Eighth Amendment prison cases] is that ‘punishment’ has been deliberately administered for a penal or disciplinary purpose.” Id. (quoting 481 F.2d 1028, 1032 (2nd Cir. 1973), cert. denied sub nom. John v. Johnson, 414 U.S. 1033 (1973).
In Estelle v. Gamble, 429 U.S. 97 (1976), the Supreme Court first acknowledged that the Eighth Amendement could be applied to some deprivations that were not specifically part of a formal sentence but were suffered during imprisonment. In that case, however, the Court rejected the claim that prison doctors had inflicted cruel and unusual punishment by inadequately attending to the inmate’s medical needs because he failed to establish they possessed a sufficiently culpable state of mind. Wilson, supra at 297. Because the Court had previously established that only the “unnecessary and wanton infliction of pain” implicates the Eighth Amendment, a prisoner advancing such a claim must, at minimum, allege “deliberate indifference” to an inmate’s “serious” medical needs. *25 Id. (quoting Estelle, at 429 U.S. at 104). It is only such indifference that can violate the Eighth Amendment; allegations of inadvertent failure to provide adequate medical care simply fail to establish the requisite culpable state of mind. Id. Thus, when the claim involves an alleged failure to meet a prisoner’s medical needs, it is “obduracy and wantonness, not inadvertence or error in good faith” that characterizes the conduct prohibited by the Cruel and Unusual Punishments Clause. Whitley v. Alters, supra, at 319.
The obligation to take reasonable measures to address inmate safety includes addressing serious physical and mental health needs. Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982). The rights of a pre-trial detainee arise under the Fourteenth Amendment Due Process Clause. Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). Because pretrial detainees’ rights under the Fourteenth Amendment are comparable to prisoners’ rights under the Eighth Amendment the same standards are applied to both claims. Id.
To state a claim under the 8th and 14th Amendments, plaintiffs must establish three elements: (1) the alleged deprivation was objectively sufficiently serious; (2) the individual defendants were “deliberately indifferent” to Clustka’s health and safety; and (3) the harm was caused by the indifference. Farmer v. Brennan, 511 U.S. 825, 834 (1994); Jett v. Penner, 439 F.3d
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1091, 1096. (9th Cir. 2006).
*26 B. The officers did not subject Clustka to a substantial risk of serious harm.
For a claim based on a failure to prevent harm to a detainee, it must be shown she has been incarcerated under conditions posing a substantial risk of serious harm. Farmer v. Brennan, 511 U.S. 825, 834 (1994). When the claim is that a serious medical need was not addressed, it must be demonstrated that the failure to treat the condition could result in further significant injury or the unnecessary and wanton infliction of pain. Jett v. Penner, 439 F.3d 1091, 1096. (9th Cir. 2006). Indicia of a serious medical need include (1) the existence of an injury that a reasonable doctor would find important and worthy of comment or treatment, (2) the presence of a medical condition that significantly affects an individual’s daily activities, and (3) the existence of chronic or substantial pain. Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994).
Plaintiffs failed to establish that Clustka presented such an objectively serious threat of suicide that incarcerating her without reporting her conduct to jail personnel or taking her to the hospital subjected her to a substantial risk of serious harm. The officers were faced with an intoxicated woman who did not want to be taken to jail. REMSA personnel had performed a mental and physical evaluation and released her for transport for CPC. The only experience either officer had with Clustka was Ashton’s observations of her while she was treated for injuries before being arrested on a domestic battery charge more than a month earlier. The only *27 other information the officers had was Clustka possessed violent tendencies, abused drugs and alcohol and had unspecified mental health problems. Clustka was placed in the van for transport to jail with no objective reason to believe she was suicidal.
When Clustka realized she was headed to jail instead of to her home, she tapped on the camera to get the officers to stop the van. When that didn’t work, she wrapped the seatbelt around her neck and the officers stopped the van. Her actions were reasonably understood to be nothing more than an attempt to manipulate the situation. When she told the officers to kill her or she would kill herself, the officers had no more reason to believe Clustka would kill herself than she did that the officers would actually kill her.
Robertson had repeatedly heard many sober and intoxicated detainees threaten to kill themselves over the years when being taken to jail. Both officers understood that intoxication is a factor to consider when assessing credibility, but also considered all the circumstances presented. Their assessment of the situation is supported by Dr. Caplan’s testimony that intoxication changes a person’s state of mind and judgment to the point that an intoxicated person might say something she doesn’t really mean such as I’m going to kill myself if I don’t get my way. The judgment of an intoxicated person is simply not as good as someone who is not *28 intoxicated. The officers reasonably believed Clustka’s actions occurred because she was angry and was attempting to manipulate that situation.
Not only did the facts available to the officers fail to indicate that Clustka presented an objectively serious threat of suicide, the remaining facts also did not support such a finding. First, Dr. Caplan judged Clustka not to be a risk of suicide just hours before Ashton and Robertson transported Clustka. Second, the REMSA medical personnel found no basis for concluding that Clustka presented a risk of suicide and released her to the police officers for transport to jail. Third, no determination was made that Clustka was at risk for suicide when evaluated by the intake nurse upon her arrival at the jail. Fourth, Clustka made no threat of suicide while confined at the jail for CPC. Fifth, Clustka was hot found to be a suicide risk by the emergency room doctor at WMC just hours after her release from CPC detention.
While it is apparent that suicide itself is an objectively serious harm, the question presented with respect to the first factor is whether plaintiffs have shown that Clustka presented an objective “serious medical need” at the time that the defendants chose not to take additional action. The fact that Clustka ultimately took her own life two days later does not establish this requirement. Rather, it was plaintiffs’ burden to show that Clustka presented an objective serious medical need at the time when defendants are accused of not taking appropriate action.
*29 In addition to the foregoing factors, none of the indicia of a serious medical need identified in Doty, supra, are present here. There is no evidence that Clustka’s acts, without reference to her prior medical history, would be worthy of comment or treatment by any reasonable doctor or that she had a medical condition that significantly affected her daily activities. There is also no evidence that either chronic or substantial pain was involved with Clustka’s actions.
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Plaintiffs’ argument on this point is based on the assumption that Clustka actually tried to commit suicide and ignores the need to make an objective assessment of the situation based on all the circumstances presented. Plaintiffs’ approach puts the cart before the horse in the analysis. The real question presented is whether Clustka had an objective serious medical need while being transported to jail without having the information that Clustka would commit suicide two days later. The facts available at the time of the incident demonstrate that Clustka did not then have an objective serious medical need.
Plaintiffs’ attempt to analogize to a situation where one is bitten by a rattlesnake does not provide support for their position. It is obvious the officers were not presented with a situation involving an injury inflicted by an outside agent under circumstances where death could immediately result. The choice under the circumstances plaintiffs describe is simple. The choice made by the officers under the circumstances presented to them was far more involved.
*30 This Court has held that, under circumstances far more egregious than those presented here, where officers reasonably believe an inmate’s comments about committing suicide are merely a joke, there is no basis for finding deliberate indifference. In Estate of Cartwright v. City of Concord, 856 F.2d 1437 (9th Cir. 1988), a pretrial detainee committed suicide in his cell after speaking of committing suicide while in jail. However, because the jail personnel reasonably believed he was continuing the joke his companion had started earlier in the evening and no other statements gave them reason to believe he needed preventative care, the individual defendants were not held liable for not taking additional precautions. Although neither officer considered Clustka’s acts to be a “joke”, there was also no objective basis for concluding she had a serious medical need. Plaintiffs failed to establish the first required element of the claim.
C. Defendants Were Not Deliberately Indifferent To Clustka’s Health Or Safety.
The second requirement follows from the principle that only the unnecessary and wanton infliction of pain implicates the Eighth Amendment. Farmer, supra, at 834. To violate the Cruel and Unusual Punishments Clause, the official must be shown to have a sufficiently culpable state of mind that amounts to deliberate indifference to the detainee’s health or safety. Id. An official cannot be held liable unless he knew of and disregarded an excessive risk to the detainee’s health or safety. Id at 837. The official must be both (1) aware of facts from which the *31 inference could be drawn that a substantial risk of serious harm exists and (2) actually draw that inference. Id; Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004). If an official should have been aware of the risk but was not, no violation has been established no matter how severe the risk. Toguchi, at 1057. This subjective approach focuses only on what a defendant’s mental attitude actually was. Id. Mere negligence in diagnosing or treating a medical condition does not violate a prisoner’s constitutional rights. Id. In a jail suicide case, deliberate indifference requires that the defendant disregard a strong likelihood rather than a mere possibility that the selfinfliction of harm will occur. Snow v. City of Citronelle, 420 F.3d 1262, 1268 (11th Cir. 2005); Cook ex rel. Estate of Tessier v. Sheriff of Monroe County, Fla., 402 F.3d 1092, 1115 (11th Cir. 2005). The undisputed facts of this case are insufficient to meet these standards.
Plaintiffs were required to present sufficient evidence that would allow a trier of fact to conclude the officers knew Clustka was suicidal. The officers testified they did not believe Clustka was actually trying to harm herself in the back of the transport vehicle on April 26 because of the following facts:
1. Clustka attempted to get their attention the entire duration of the trip, even getting out of her seat and tapping on the camera in the rear of the vehicle to get their attention, but they did not stop in response to those efforts.
*32 2. Clustka became angry when she saw she was being taken to jail rather than home as she had been told. Clustka put the seatbelt around her neck only when she saw she was not going home and the prior attempts to get the officers to stop the vehicle had failed.
3. Clustka knew the officers were watching her when she put the seatbelt around her neck.
4. Clustka was intoxicated. Both officers believed intoxication is a factor when assessing credibility.
5. Clustka told them to kill her before she said she was going to kill herself.
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6. There was no indication from any other conduct by Clustka that she was suicidal.
7. Clustka lacked the means to commit suicide. Even if she had managed to pass out from the seatbelt, she would have lost all tension on the belt and could not have killed herself.
8. Clustka was angry when she arrived at jail.
9. Both officers reached the conclusion that Clustka was not trying to harm herself based on the totality of the circumstances.
Plaintiffs produced no evidence that either officer actually knew Clustka was at substantial risk of serious harm. Instead, they argue only that the circumstances *33 support an inference that they were negligent in diagnosing her condition and that the officers were motivated by their own self interest in not taking further action to inform others of Clustka’s conduct.
Plaintiffs contend that the following factors point to the officers awareness of Clustka’s vulnerability to suicide: (1) the words stated by Clustka, (2) the officers’ supposed awareness of Clustka’s history of mental problems, (3) Clustka’s disorientation and intoxication, (4) knowledge that Clustka’s mother had obtained a temporary protective order against her, and (5) knowledge that Clustka continued to face stressors that contributed to her substance abuse and disoriented condition. AOB, p.29-30. The facts referenced by plaintiffs do not provide evidence of actual knowledge.
First, the fact that officers saw Clustka wrap the belt around her neck did not mean they knew she wanted to kill herself. The officers knew her actions were an attempt to get them to stop the vehicle and that she could not commit suicide.9 All the cases cited by plaintiff at page 29 involved knowledge of an undisputable attempt at suicide that is not present here.
Second, the words spoken by Clustka did not mean the “officers plainly got *34 the message” that she actually intended to kill herself. As discussed at length above, the officers had ample reason to conclude she did not intend to do so and did not believe she intended to do so. Plaintiffs’ assertion that Clustka’s failure to say she was just joking should have lead the officers to conclude she was suicidal is a misguided attempt to characterize a complex situation as something a child could resolve. That was clearly not the situation presented to the officers.10
Plaintiffs’ citation to Coleman v. Parkman, 349 F.3d 534 (8th Cir. 2003), does not support plaintiffs’ position. In Coleman, the arresting officer was told by several people the day before and of Coleman’s arrest that he would kill himself if jailed. When Coleman was arrested, the person with Coleman told the officer Coleman had threatened suicide. After Coleman was arrested, he told the same officer he had contemplated suicide the day before. The same officer told the jailer Coleman was a suicide risk. Id. at 536. Under these facts, the court found a factual issue as to whether the arresting officer and jailer knew Coleman presented a substantial suicide risk. The facts known to the two officers here do not approach the level of knowledge held by the officers in Coleman.
Third, the officers had no reason to know Clustka was suicidal because the *35 warrants check stated Clustka had a history of mental problems. There is no evidence that knowledge of a history of unspecified mental problems must or even should lead one to conclude the individual is suicidal.
Plaintiffs also claim that Ashton had personal awareness of Clustka’s mental illness and substance abuse from having arrested her the prior month and that Robertson thought she was seriously mentally ill. Plaintiffs have misstated the evidence. It is undisputed that the only role Ashton played in the March 19 incident was to stand by at WMC while Clustka received medical treatment for the physical injuries she sustained. ER 30-31. And the only reason Robertson thought Clustka “might be seriously mentally ill” was because she was intoxicated. ER 235 @128:12-16. Neither fact establishes sufficient evidence to demonstrate a genuine issue of fact regarding either officers’ state of mind.
Fourth, the officers did not know Clustka was suicidal because she was disoriented and intoxicated. Plaintiffs contend the officers knew she was suicidal because Dr. Caplan, the examining psychiatrist at NMHI, testified that disorientation and intoxication should set off “alarm bells” for an increased suicide risk for Clustka.11 But Dr. Caplan was actually asked, knowing he had evaluated *36 Clustka for being at risk of suicide on April 26, if he would consider her intoxication and substance abuse if she was returned the next day based on a second suicide attempt in assessing her suicide risk. ER 336
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@23:12-16. It is obvious in the context of his testimony that he was not saying that the mere fact of intoxication or substance abuse by any individual is an indication the person is at risk of suicide. There is no basis in the record for attributing the experience Dr. Caplan had with Clustka to the two officers.
Fifth, the officers’ knowledge that Clustka’s mother had obtained a temporary protective order against her did not mean the officers knew Clustka was suicidal. Plaintiffs contend this knowledge was “sufficient to put the officers on notice to take her seriously.” AOB, p.30. The issue though is not whether the officers took Clustka seriously, but whether they knew Clustka was at substantial risk of serious harm. The fact that a protective order was issued does not present a genuine issue of material fact. There is no evidence that indicates any officer should conclude that one is at risk of committing suicide because of a protective order.
Sixth, the officers had no personal knowledge of Clustka’s history and didn’t know if any stressors she faced would make her suicidal. The fact that the officers were not psychologists, who may take years to assess the causes of a person’s troubles, does not mean they thought Claustka was suicidal.
*37 In addition to the foregoing factors, plaintiff also contend the officers knew they had violated department policies regarding the handcuffing and seat belting of prisoners in the transport vehicle and failed to report Clustka’s conduct because they were concerned they would be disciplined if they did.12 The record does not support this argument.
Ashton thought not reseatbelting Clustka was against policy and state law, but would take the same action again because he thought it would cause an unnecessary confrontation if he did. Robertson thought it was also against policy and state law if he is “not mistaken.” With respect to handcuffing, Robertson did not believe policy required handcuffing. Ashton didn’t know at the time if policy required handcuffing although he didn’t think she should have been cuffed. 185@25:4-25;@26:1225;ER213@40:6-16;ER213@143:2-4;ER182 @14:18-24.
Sergeant Evans was the immediate supervisor of both officers. He agreed it was discretionary on the officers’ part as to whether to handcuff an intoxicated person and he may well have also continued on to the jail without stopping to reseatbelt Clustka. No discipline was imposed against either officer for any claimed violation of law or policy. Given the fact that no injury occurred to Clustka from *38 any failure to initially handcuff her or to re-seatbelt her, there is simply no basis for inferring that either officer failed to report Clustka’s conduct because of any fear of discipline. ER 286@75:5-17; 288 @8492.
Plaintiffs failed to show there was sufficient evidence to raise a genuine issue of material fact regarding the officers’ knowledge of a substantial risk of serious harm to Clustka. The district court properly granted summary judgment.
D. Plaintiffs Failed To Show The Officers’ Acts Were A Cause In Fact Of Clustka’s Suicide.
Even if plaintiffs were able to establish the two elements of a deliberate indifference claim, they failed to show the officers caused any harm to Clustka by their conduct. In order to maintain their claim, plaintiffs must show the defendants’ alleged deliberate indifference caused the harm in question. Jett v. Penner, supra, at 1096.
The requirement of establishing causation under a section 1983 claim is not unique to Eighth Amendment claims. In any section 1983 claim, the plaintiff must show the defendants deprived him of a right. Arnold v. International Business Machines Corp., 637 F.2d 1350, 1355 (9th Cir. 1981). The statute creates liability for any person who “subjects, or causes to be subjected” particular persons to the deprivation of a constitutional right. Id. A person “subjects” another to the deprivation of such a right if he does an affirmative act, participates in another’s affirmative acts, or omits to perform an act which he is legally required to do that *39 causes the deprivation. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). A person “causes” a deprivation not only by directly participating in the deprivation but also by setting in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury. Id. A defendant’s conduct is a cause of an event if the event would not have occurred but for that conduct; conversely, the defendant’s conduct is not a cause of an event if the event would have occurred without it. White v. Roper, 901 F.2d 1501, 1505 (9th Cir. 1990); W. Prosser & W. Keaton, The Law of Torts, sec. 41, at 266 (5th ed. 1984) (“Prosser”).
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It is undisputed that the harm at issue is Clustka’s suicide. Plaintiffs advance three theories as to how the officers’ conduct caused this harm: 1. The officers could have taken Clustka to a hospital under a Legal 2000 procedure and reported what they saw and heard to emergency room staff;
2. The officers could have informed jail personnel who would have had the option of refusing her and sending her to a hospital for assessment and treatment; or
3. The jail had the option of admitting her and placing her under a suicide watch until she was detoxified and then sending her to a hospital under a Legal 2000.
*40 Plaintiffs contend that under any of these options, Clustka would have been assured suicide intervention by qualified medical staff until she was determined not to be at risk of suicide. AOB, p.7. Plaintiffs’ arguments are not supported by the evidence and amount to mere speculation as to what might have occurred if any one of these courses of action had been pursued.
(1) Choosing Not To Initiate A Legal 2000 Commitment Did Not Cause Clustka’s Suicide.
Plaintiffs initially contend the officers could have taken Clustka to a hospital under a Legal 2000 procedure and reported what they saw and heard to emergency room staff.13 But plaintiffs’ theory under this scenario does not stop here. Plaintiffs also contend that if this occurred, Clustka’s mental health history would have been flagged and carefully scrutinized by emergency room personnel who would then have transferred her to NMHI where she would have remained for days and presumably never have committed suicide. AOB, p.39. Plaintiffs’ contentions are not supported by the evidence and amount to mere speculation.
Whenever an individual is brought to WMC, a new evaluation is performed. Each encounter with an individual is evaluated based solely on its merit as to whether a patient needs to be placed under a Legal 2000 and transferred to a psychiatric facility. The mere fact that a patient was found to require psychiatric *41 treatment for suicidal ideation on day one and was returned for evaluation the very next day for a repeat suicide threat or attempt would not change this approach; the same evaluation process based solely on the merits of the circumstances presented on the second day would be performed anew. Thus, Dr. Gansert who evaluated Clustka on April 25 and found her to be suicidal testified that he could only speculate on what action he might have taken with Clustka if he had evaluated her on April 26 even with the additional information of a repeat suicide attempt and threat. The claim that Clustka would have been referred to a psychiatric facility if she had been taken by the officers to the emergency room on a new claim of attempted suicide is pure speculation. Nobody knows what conclusion an evaluation would have reached at the emergency room. ER324@7:25 -8:4; ER325@10:1-6; ER327@18:6-25 19:1-11.
The record of Clustka’s evaluations performed at emergency rooms other than on April 25, 2005, does not support plaintiffs’ theory. On September 14, 2001, and on August 16, 2003, Clustka was evaluated in an emergency room and transferred to NMHI. On April 3, 2004, although a psychiatrist recommended that Clustka be admitted to NMHI, Clustka informed the social worker at WMC that if she was sent to NMHI she would lose her new job. There is no evidence Clustka was transferred to any psychiatric facility from the hospital. And on April 26, *42 2005, the parties agree that Clustka was not transferred to any psychiatric facility after evaluation at WMC.
There is also no basis for the assertion that Clustka’s mental health history would have been flagged and carefully scrutinized by emergency room personnel if she had been taken for evaluation to the emergency room by the officers on April 26. There is no evidence any evaluation of Clustka performed prior to 2005 was ever reviewed by medical staff in any subsequent evaluation. Dr. Gansert did not review any such document on April 25, 2005. There is no evidence the emergency room doctor reviewed any health history on April 27 even though Clustka had been referred to NMHI from that same emergency room just two days earlier. Plaintiffs’ assertion that Clustka’s mental health history would have been flagged and carefully scrutinized by emergency room personnel if she had been taken for evaluation on April 26 is also pure speculation.
16

Charla CONN; Dustin Conn; Estate of Brenda Clustka,..., 2007 WL 4266351...
There is also no evidence to support plaintiffs’ claim that if Clustka had been transferred to NMHI on April 26, she would have remained there for days. On September 14, 2001, Clustka was kept at NMHI for less than 12 hours. On August 17, 2003, she was kept for one day. On April 25, 2005, Clustka was kept 17 hours. Even though the statutes allow a patient to be kept for up to 72 hours without a court order, the undisputed evidence is that a patient admitted at NMHI on a Legal 2000 is kept only until the physician determines she is no longer at risk for *43 suicide. ER88@80:18 -81:7. Plaintiffs’ assertion that Clustka would have been kept at NMHI for days on April 26 is not supported by the evidence and is pure speculation.14
The undisputed evidence is that medical intervention for one contemplating suicide does not “cure” an individual from entertaining similar thoughts in the future. Plaintiffs contend that had Clustka been given appropriate care such as being sent to NMHI for intervention, “she likely would have resisted the lure of suicide.” AOB, p.41. There is no evidence to support this assertion. NMHI keeps a potentially suicidal patient only until the medical staff concludes the patient is no longer at risk of committing suicide. NMHI cannot provide a cure for a person with suicidal thoughts and doesn’t even provide ongoing treatment for a suicidal patient. For example, although Clustka’s potential intoxication was viewed as a risk to her future safety, NMHI does not provide substance abuse treatment. Instead, typically the patient is referred to substance abuse treatment and all NMHI does is “hope” the patient attends. Although Clustka was assessed on April 25 as requiring “medically monitored residential services,” there is no evidence that *44 Clustka obtained that level of care or that she had any plan for doing so. ER90@105:15 - ER90@106:9; ER138.
The records for the treatment Clustka received for suicidal ideations prior to April 25, 2005, demonstrate that none of the medical facilities where she was evaluated provided ongoing treatment of any underlying cause of suicidal ideation. Instead, these facilities simply kept her until she was determined to no longer be a high risk of immediate suicide and left any ongoing treatment up to Clustka to obtain. In September 2001, Clustka tried to cut her wrist with a piece of glass because she was depressed. Increased suicide risk factors included substance abuse, poor insight and an unresponsive family. The only action taken by NMHI to address any of these factors was to prescribe medication and refer her to counseling and group therapy. In August 2003, Clustka again tried to kill herself after overdosing on an over the counter medication and drinking tequila because she was upset. NMHI discharged her with instructions to follow up with her primary care physician, alcoholics anonymous and clinical services if needed. ER101, 103, 104, 106, 107, 110, 118, 120.
Plaintiffs’ argument that Clustka would not have killed herself if she had been taken to the hospital on April 26 has no support in the evidence and is just additional speculation. Even if a Legal 2000 had been initiated, it is speculative to conclude that Clustka would have been admitted to NMHI at all. If she had been, *45 she would have been kept only until she no longer presented an immediate risk of suicide. NMHI’s role was only to keep her until she no longer presented an immediate risk of suicide and provide a discharge treatment plan for her to follow on her own. Upon discharge Clustka would have been able to access the same substances that lead her to attempt suicide previously. The record is replete with Clustka’s attempts to commit suicide and the evidence suggests she would have tried again no matter what action was taken.
(2) The Act Of Not Informing Jail Personnel Of Clustka’s Conduct Did Not Cause Her Suicide.
There is also no basis in the evidence for concluding that Clustka would not have committed suicide if the officers had informed jail personnel of the seatbelt incident. Plaintiffs argue that if the officers had done so, jail personnel either could have refused admittance to Clustka and sent her to the hospital on a Legal 2000 or placed her on a suicide watch. The first assertion has already been addressed. Likewise, any attempt to predict how jail personnel would have dealt with Clustka if they had been given this information is speculative. While at the jail during her confinement for CPC, there is no evidence Clustka threatened to kill herself. There is no evidence Clustka made any gesture indicating any intention to kill herself. In fact, the undisputed evidence is that Clustka did not attempt to harm herself in any way while confined for CPC on April 26. Because no harm came to Clustka while confined for CPC, the lack of a report about the seatbelt incident *46 caused no harm to her during the only confinement initiated by Ashton and Robertson.
If the officers had informed jail personnel of Clustka’s conduct, there is also no basis for concluding that Clustka’s suicide two days later would have been prevented because jail personnel would not have had access to the information associated with her CPC confinement. As discussed above, although medical records for an inmate previously jailed in connection with a criminal charge are available to the nursing staff, information related to a prior confinement for CPC status are typically not accessed by the nurse when someone is subsequently arrested and brought to the jail. Unless the same intake nurse working
17

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when Clustka was brought in for CPC was also working the next day when Clustka was evaluated, there would be no way for a second nurse to know about the prior CPC information. Even if the screening nurse knew that an individual had made a suicidal gesture and threats the day before, that information would not have been sufficient to make a determination regarding placement. A variety of variables would have come into play in assessing the individual including the fact that she was intoxicated when the gesture and threats were made. There is no basis for concluding that not reporting Clustka’s conduct to jail personnel affected anything they did when Clustka was admitted to jail on April 27.
*47 Even without the additional information from the officers on April 26, the jail already had sufficient information to allow it to determine appropriate precautions for Clustka during her confinement that began on April 27. The jail was aware she had been on a suicide watch there less than a month before. Clustka was placed in Housing Unit 3, the mental health unit, because of her anxiety disorder, substance abuse and mental health history, including the jail suicide watch a month earlier, and a psychiatric evaluation was scheduled for her. Even though all this information was taken into account in determining her placement, Clustka was still not placed on a suicide watch. And even with all this information, the deputy who escorted her back to her cell just prior to when she committed suicide failed to report her disturbing conduct he witnessed. There is simply no basis for finding that even if the additional information from April 26 had been available that Clustka’s suicide would have been prevented.
The fact that Clustka sustained no harm during the time she was confined as a result of defendants’ actions and only after she was confined on different charges the next day also shows the lack of causation. The cases that plaintiffs cite do not support their position and are not analogous to the facts presented here. In Cabrales v. County of Los Angeles, 864 F.2d 1454 (9th Cir. 1988), plaintiff claimed that the county and its employees at the jail were deliberately indifferent to her son’s medical needs and should be held liable in damages for his suicide. On *48 December 16, 1983, the decedent attempted to commit suicide in his jail cell but was saved by two deputies. The decedent was subsequently examined by a psychiatrist who determined the suicide attempt was simply a gesture undertaken to get out of his housing assignment On January 3, 1984, while in jail continuously from the prior incident, the decedent committed suicide. Summary judgment was granted to the psychiatrist. At trial, the plaintiff succeeded only on her claim that the county maintained a policy or custom of deliberate indifference to the safety and medical needs of inmates. No individual was held liable for causing the subsequent suicide.
In Snow v. City of Citronelle, 420 F.3d 1262 (11th Cir. 2005), summary judgment in favor of Officer Chennault was reversed. Although he told the decedent’s parents the decedent was suicidal, Chennault placed the decedent in a cell knowing she should be checked every 15 minutes and that items that could be used to harm herself should be removed without taking either action. The decedent killed herself the next morning while continuously confined. Understandably, no issue of causation was raised. In Turney v. Waterbury, 375 F.3d 756 (8th Cir. 2004), summary judgment for the sheriff was reversed because although he knew the decedent had tried to kill himself three days earlier and had violently resisted efforts to stop him, the sheriff still placed him directly in a regular cell where he *49 committed suicide just hours later. Again, no issue of causation was raised. None of these cases are similar to the circumstances of this case.
The record does not provide a basis for finding the existence of a genuine issue of material fact regarding actual causation. Accordingly, summary judgment was properly granted.
E. Plaintiffs Failed To Show The Officers’ Acts Were The Proximate Cause Of Clustka’s Suicide.
The officers’ acts were not only not a cause in fact of her suicide, they were also not the proximate cause of her death. The causation requirement is not satisfied by a mere showing of causation in fact. Arnold, at 1355. Rather, the plaintiff must establish proximate or legal causation. Id. The problem of proximate cause is “one of the policy as to imposing legal responsibility.” Hunley v. Ace Maritime Corp., 927 F.2d 493, 497 (9th Cir. 1991) (quoting Prosser, sec.44 at 301). Conduct is not the proximate cause of an injury if another cause intervenes and supersedes the actor’s liability for the subsequent events. White v. Roper, supra, at 1506. Whether an intervening cause superseded the defendant’s liability for the results of his own conduct depends on what was reasonably foreseeable at the time. Id.
Plaintiffs contend that once the individual officers became aware of Clustka’s conduct in the transport vehicle and did not immediately report it, they “rendered themselves potentially liable no matter when the suicide actually *50 occurred.” AOB, p.42.15 The prospect of unlimited liability asserted by plaintiffs is exactly why the proper application of proximate cause is
18

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crucial.
The undisputed evidence is that, regardless of a patient’s history of suicidal threats or attempts, the determination of whether one presents an immediate danger of suicide is based upon the current situation of the patient. Dr. Gansert testified that every psychiatric evaluation he performs on a patient is based on its individual merit and according to the specific circumstances presented for that evaluation. Thus, he could only speculate on what action he might have taken with Clustka if he had evaluated her on April 26 even with the additional information of a repeat suicide attempt and threat. When Dr. Caplan was asked whether Clustka was a risk of suicide when he discharged her on April 26, his response was that, “At that moment in time she was judged not to be a risk.” ER91@108:16-19. He believed that her suicide two days later occurred because her state of mind and possibly her situation, including the fact of incarceration, had changed. ER91@108:20 - 109:25.
Clustka received several medical evaluations after she was removed from the transport vehicle on April 26: (1) she was evaluated by the nurse at the jail when she was detained for CPC on April 26; (2) she was evaluated by a physician *51 at WMC and (3) she was given a full evaluation by the intake nurse at the jail on April 27. None of the evaluators concluded Clustka was suicidal at any one of these points in time.
The undisputed evidence is that Clustka was suicidal only at specific times and for limited time periods. None of these medical professionals found Clustka to be suicidal and the only reasonable conclusion that can be drawn is that she was not suicidal at those times of evaluation. If Clustka was suicidal the entire time between the seatbelt incident and when she committed suicide, the failures of the medical professionals to properly diagnose her were superseding causes of her suicide that were not foreseeable to the officers. If she was not suicidal at the time of those evaluations, the officers could not reasonably foresee that choosing not to report the seatbelt incident could result in Clustka’s suicide two days during a separate confinement. Even if actual causation was established, a finding that their mere failure to report a claimed suicide attempt in the transport vehicle makes them responsible for any suicide attempt by Clustka no matter when or where it occurs would exceed all bounds established by the principle of proximate cause.
The circumstances under which Clustka was confined were also very different on April 26 from those on 27. On April 26, Clustka was told she was simply being taken in for CPC, a confinement that lasts only until the prisoner becomes sober, and she was held only a few hours. On April 27 however, she was *52 booked on a misdemeanor charge of violating a protective order. The last time she had been booked on a misdemeanor charge in March, 2005, she was held for over a month and was placed on suicide watch her second day of confinement. When she was booked on the misdemeanor charge on April 27, she committed suicide the second day. Dr. Caplan’s view that Clustka’s suicide two days later occurred because her state of mind and possibly her situation, including the fact of incarceration, had changed bears considerable weight. The policy as to imposing legal responsibility cannot lead to the conclusion that defendants are the proximate cause of Clustka’s death under these circumstances.
F. The Individual Defendants Are Entitled To Qualified Immunity.
If the grant of summary judgment is upheld, there is no reason to address the issue of whether the individual officers are entitled to qualified immunity for their actions. A court required to rule upon the qualified immunity issue must consider, then, this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right? Saucier v. Katz, 533 U.S. 194, 201, (U.S., 2001). If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity. Id. On the other hand, if a violation could be made out on a favorable view of the parties’ submissions, the next, sequential step is to ask whether the right was clearly *53 established. Id. This inquiry must be undertaken in light of the specific context of the case, not as a broad general proposition. Id. The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. Id. at 202. If the law did not put the officer on notice that his conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate. Id.
The concern of the immunity inquiry is to acknowledge that reasonable mistakes can be made as to the legal constraints on particular police conduct. Id. at 205. It is sometimes difficult for an officer to determine how the relevant legal doctrine will apply to the factual situation the officer confronts. An officer might correctly perceive all the relevant facts but have a
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mistaken understanding as to whether a particular course of conduct is legal in those circumstances. If the officer’s mistake as to what the law requires is reasonable, however, the officer is entitled to the immunity defense. Id. The question is what the officer reasonably understood his powers and responsibilities to be, when he acted, under clearly established standards. Id. at 208.
The application of these principles here must lead to the conclusion that the individual officers were entitled to qualified immunity. As discussed at length above, the circumstances under which the officers were acting provided reasonable *54 grounds for them to conclude that the actions they were taking did not violate Clustka’s constitutional rights. Neither officer was aware of any prior suicide attempt by Clustka and the facts indicated they had an angry intoxicated subject who did not want to go to jail like any other detainee who was willing to try to manipulate the situation to avoid doing so. They knew she would be released from custody when she sobered up and had no idea she would be arrested and again confined at the jail on a new criminal charge. Plaintiffs have not identified a clearly established rule applicable to the circumstances presented that the officers disregarded. Accordingly, the individual officers were entitled to qualified immunity.
G. There Is No Basis For Municipal Liability.
A municipality may be held liable only where it inflicts an injury; it may not be held liable under a respondeat superior theory. Monell v. Dep’t of Social Services of City of N.Y., 436 U.S. 658, 691 (1978). Gibson v. County of Washoe, 290 F.3d 1175, 1185 (9th Cir. 2002). Liability may be established by what the municipality does or by what it fails to do; that is, there may be direct liability or liability by omission. Id. at 1186. Plaintiffs do not contend the City directly violated Clustka’s constitutional rights. Therefore, the City can be held liable only if there is a legally cognizable basis for imposing liability against it for a failure to act.
*55 To impose liability against a city for a claimed failure to act, plaintiffs must show that a (1) City employee violated Clustka’s rights; (2) the City has customs or policies that amount to deliberate indifference; and (3) these policies were the “moving force” behind the employee’s violation of Clustka’s constitutional rights. Id. at 1193-94. As discussed above, plaintiffs failed to show that either of the individual defendant officers violated Clustka’s constitutional rights. Therefore, there is no basis for imposing liability against the City. However, even if the first element was satisfied, plaintiffs have failed to show that the remaining elements have been satisfied.
There is no basis for imposing liability against the City on any of the four theories asserted by plaintiffs. Plaintiffs rely on the theory that a failure to train may serve as a basis for recovery where a violation of federal rights may be a highly predictable consequence of a failure to equip law enforcement officers with specific tools to handle recurring situations. Long v. County of Los Angeles, 442 F.3d 1178, 1186 (9th Cir. 2006). The availability of that theory depends upon a showing of the likelihood that the situation will recur and the predictability that an officer lacking specific tools to handle that situation will violate citizens’ rights. Id.
Plaintiffs have failed to show that the type of situation encountered by the officers here is one that is likely to recur. Plaintiffs produced no evidence that any member of the City’s police force has ever encountered any situation like that *56 presented by Clustka on April 26, 2005. The City has a policy regarding civil protective custody detentions that was in existence at the time of the incident. ER 399. Plaintiffs contend that it is well-known that suicide is the number one cause of death in U.S. jails and that therefore, the City’s officers should be trained in suicide prevention. But plaintiffs ignore the fact that the City does not own or operate the jail. Furthermore, if Clustka was attempting to kill herself in the transport vehicle, the officers kept her from doing so. Therefore, is no basis for finding that the lack of specific training on how to deal with the kind of situation presented by Clustka caused her suicide to occur.
There is also no basis for finding that a failure to have a policy that specifically addresses suicide prevention caused a constitutional deprivation. Plaintiffs quote extensively from Long with respect to this theory but failed to include the very next sentence from that decision that follows the language quoted: “When policymakers know that their medical staff members will encounter those with urgent mental health needs yet fail to provide for the identification of those needs, it is obvious that a constitutional violation could occur.” Long, supra, at 1189 (quoting Gibson, supra, at 1196). However, Dr. Caplan testified that Clustka could not have been taken to NMHI while intoxicated and that taking her to jail in order to detox her was a proper way to address Clustka’s needs at the time. The City also already has a policy regarding the transport of
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mentally ill. ER401. As *57 shown by the action of City police officers in bringing Clustka to WMC after she was released from CPC custody on April 26 when the jail refused her admittance, the officers did what they could do to obtain treatment for her. It was the physician on duty who saw no need for further treatment to be provided to Clustka. Thus, there is no basis for claiming that the lack of a specific policy caused Clustka’s suicide.
There is no basis for plaintiffs’ assertion that the City was aware of similar conduct by Officer Robertson in the past and failed to take reasonable precautions against similar behavior in the future. There is nothing in any of the material submitted by plaintiffs’ from Robertson’s personnel file or other documents that contain any indication that he had ever engaged in conduct that could ever be considered as providing grounds for a claim of deliberate indifference with respect to any member of the public.
Finally, there is also no basis for the claim that the City is liable for a claimed failure to discipline either of the officers involved. The evidence does not establish a basis for disciplining either officer.

*58 8. CONCLUSION For the foregoing reasons, defendants request that the judgment of the district court be affirmed. RESPECTFULLY SUBMITTED this 21st day of September, 2007.

Footnotes

1

Reno Police Department (“RPD”) procedures direct, pursuant to NRS 458.270, officers to take intoxicated persons who cannot

care for themselves to the detoxification center at the Washoe County Jail (“jail”). ER399-400; ER248.

2

See Appellants’ Opening Brief (“AOB”), p. 2, note 1, for an explanation of a Legal 2000.

3

Plaintiffs state that Clustka was transported to WMC by Reno Police and arrested by Officer Ashton. AOB, p.8. Neither assertion

is accurate. ER 30-31.

4

A person taking a substantial amount of Xanax could mirror an intoxicated state. ER418@40:6-8.

5

NRS 484.641(1)(b) provides: 1.It is unlawful to drive a passenger car manufactured after: (b) January 1, 1970, on a highway,

unless it is equipped with a lap-type safety belt assembly for each permanent seating position for passengers. This requirement

does not apply to the rear seats of vehicles operated by a police department or sheriff’s office.

6

Although plaintiffs claim Clustka was only “briefly” examined by the emergency room physician, the report states, “Time seen:

Hours”. ER432. There is no other evidence in the record which indicates the length of the evaluation. Plaintiffs agree WMC

“emergency staff performs a thorough medical screen.” AOB, p.21.

7

It is undisputed that the nurse who performed the intake assessment of Clustka on April 26 in connection with her confinement for

CPC was not the same nurse who performed Clustka’s intake assessment on April 27 when arrested on the criminal charge. ER

428-429; 56-58.

8

The report describing this conduct was not written until nearly eight hours later and there is no evidence the deputy informed any

medical or supervisory personnel prior to Clustka’s death of what occurred despite Clustka’s recent placement on a suicide watch

and a psychiatric exam scheduled for later that day. ER61.

9

Plaintiffs argue that the fact that Clustka could not kill herself by wrapping a seatbelt around her neck is irrelevant. Dr. Gansert’s

diagnosis that Clustka was suicidal was based on the fact that she had a plan to commit suicide and the ability to carry it out.

ER141. The fact that Clustka could not carry out any alleged plan is clearly relevant.

10

Plaintiffs contend there is no evidence the officers considered the fact that Clustka had enough breath to scream at them when they

removed the seatbelt or that they observed no bruises on her. It is undisputed that the officers considered all the circumstances in

assessing whether Clustka was attempting to harm herself and the intake nurse saw no sign of any injury.

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11

Plaintiffs repeatedly use the term “alarm bells” throughout their opening brief as though this phrase has some accepted meaning to

the officers. The use of the term originated in a question asked by plaintiffs attorney of Dr. Caplan. ER336@25:48. No witness

ever used that term.

12

Plaintiffs expressly admit they do not assert that a claimed violation of policy amounts to a constitutional violation. AOB, p.36.

13

It is undisputed that the officers would not have been able to take Clustka directly to NMHI because of her intoxication.

ER92@150:5-12.

14

Dr. Caplan did not personally know the average length of stay of involuntarily admitted patients at NMHI, but did not dispute the

average length of stay is three weeks. However, it is apparent from the context that this time period was with reference to all such

patients, and not specifically those at risk for suicide for whom no court order of confinement had been obtained. ER332@6-7.

15

It is undisputed that Clustka’s own family had specific knowledge of her history of suicidal threats and attempts. There is no

evidence they ever informed anyone at the jail of these facts.

End of Document

22

 </s> Court of Appeal Docket No. 07-15572

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

***
CHARLA CONN, DUSTIN CONN, Plaintiff-Appellants,
VS.

FILED
JAN3 12IO_
,, l, _ A.OATTERSO_lI,_. IJ.S.COUROT /APPEAL,

CITY OF RENO, RYAN ASHTON, DAVID ROBERTSON,

Defendants-Appellees.

District Court No. 3:05-cv-00595 HDM
***
APPEAL FROM GRANT OF SUMMARY JUDGMENT
UNITED STATES DISTRICT COURT DISTRICT OF NEVADA
UNITED STATES DISTRICT JUDGE HOWARD D. MCKIBBEN

PLAINTIFFS-APPELLANTS' REPLY BRIEF

TERRI KEYSER-COOPER Law Office of Terri Keyser-Cooper Nevada Bar Number 3984

DIANE K. VAILLANCOURT Law Office of Diane K. Vaillancourt Cal. Bar No. 181348, Nev. Bar No. 9277

,k

3365 Southampton Drive

Reno, Nevada 89509

849 Almar Avenue, Suite C403 Santa Cruz, CA 95060

(775) 337-0323

(831) 458-3440

Attorneys for Plaintiff-Appellants' Charla Conn and Dustin Conn

TABLE OF CONTENTS

TABLE OF CONTENTS .......................................................................

i

TABLE OF AUTHORITIES .................................................................

iii

I. FOURTEENTH

AMENDMENT

REQUIRES

"MORE

CONSIDERATE TREATMENT" ....................................................

1

II. DEFENDANTS ARE WRONG ON THE FACTS, MISTAKEN

ON THE LAW, MISGUIDED ON THE ANALYSIS ............................

3

A. Deliberate Indifference to Suicide Threats ........................................

3

1. Triable Issue Whether Officers Had Discretion to Disregard

Clustka's Suicide Threats ..........................................................

3

a. Triable Issue re Intoxication ....................................................

4

b. Triable Issue re Need for Medical/Psychiatric Care .......................

6

c. Jail Changed Policy Upon Clustka's Death ..................................

8

d. Defendants Disingenuous in Claiming No Suicide Risk

Because Others Did Not Recognize It ........................................

8

2. Triable Issue re Actual Knowledge ........ . .....................................

9

a. Triable Issue Based on Ashton's Pre-Lawsuit Admissions ............... 11

b. Triable Issue re Lethality of Seatbelt Choking .............................

12

c. Triable Issue Over Policy Violations ........................................

13

d. Triable Issue re Requirement to Report All Suicide Threats ............. 14

B. Fourteenth

Amendment

Balancing

Requires

"More

Consideration" than Owed a Convicted Criminal ................................

14

C. Triable Issue Whether Officers' Violation Caused Clustka's Jail

Suicide .................................................................................

16

1. Officers' Duty to Protect Under Custodial Detention Exception

to DeShaney Rule ..................................................................

16

2. Triable Issue over Cause in Fact ................................................

18

a. Triable Issue Whether Clustka's Suicide Threats Would Have

Been Addressed If Reported ...................................................

18

b. Triable Issue Whether Clustka Would Have Been Sent to

Hospital on Legal 2000 ........................................................

19

c. Triable Issue Whether Medical Intervention Would Have

Prevented Clustka's Death .....................................................

20

3. Triable Issue re Proximate Causation ..........................................

22

a. Foreseeable Clustka Would Attempt Suicide in Jail .......................

22

b. There Was Neither Intervening nor Superseding Cause .................. 22

D. Qualified Immunity Lacking ........................................................

23

E. Triable Issue re City's Liability Based on Failure to Train and

Lack of Suicide Prevention Policy .................................................

23

III. CONCLUSION .........................................................................

26

CERTIFICATE OF COMPLIANCE ........................................................

27

CERTIFICATE OF SERVICE ...............................................................

28

ii

TABLE OF AUTHORITIES

Cases
Center v. Mink, 322 F.3d 1101 (9th Cir. 2003) City of Canton v. Harris, 489 U.S. 378 (1989) Clement v. Gomez, 298 F.3d 898 (9th Cir. 2002). DeShaney v. Winnebago County Dept. of Soc. Servs., 489
U.S. 189, 197 (1989) Farmer v. Brennan, 511 U.S. 825 (1994) Gibson v. County of Washoe, 290 F.3d 1175 (9_ Cir. 2001) Huffman v. County of Los Angeles, 147 F.3d 1054 (9 th Cir.
1998) Jones v. County of Sacramento, 393 F.3d 918 (9thCir. 2004) Kneipp v. Tedder, 95 F.3d 1199 (3rd Cir. 1996). L.W.v. Grubbs, 974 F.2d 119 (9thCir. 1992) Lee v. City of Los Angeles, 250 F.3d 668 (9_ Cir. 2001) Lolli v. County of Orange, 351 F.3d 410 (9 th Cir. 2003) Monell v. Dep't of Social Services of New York, 436 U.S.
658 (1978) Youngberg v. Romeo, 457 U.S. 307 (1982)

2, 3, 15, 16 23 23 16
lO 10, 24
16
3 17 16 25 10 24-25

iii

Brenda Clustka's life was a sad story. Equally disturbing is defendants' cynical answering brief ("AB"). The big picture of what defendants assert is "nothing matters." It does not matter to them that Clustka attempted to choke herself, yelled she wanted to die, begged to be killed, and screamed she would kill herself, the officers had no idea she was serious. It does not matter that the officers knew they were required to report all suicidal gestures and failed to do so, nobody would have helped Clustka in any event.
It is defendants' position throughout that they were free to close their eyes to what they saw, close their ears to what they heard, and turn their back on their duty to protect this obviously unbalanced, self-destructive, and intoxicated detainee. The Fourteenth Amendment says different--when these officers took Clustka into protective custody, they assumed an obligation to protect her from self-harm. They failed in that obligation and her death was the result.
Io
FOURTEENTH AMENDMENT REQUIRES "MORE CONSIDERATE TREATMENT"
Defendants misstate the law to apply in this case. They assert, "The Eighth Amendment, which applies to the States through the Due Process Clause of the Fourteenth Amendment, prohibits the infliction of 'cruel and unusual punishments' on those convicted of crimes" (AB 23:16-19).

Defendants disregard that, when Robertson and Ashton encountered Clustka, she was not convicted of any crimes. She was not arrested for any crime (ER 189@41:1-3). She was a civil detainee in protective custody. This case is not about "cruel and unusual punishment" because the officers had no right to punish her. They took her into custody because she was incapable of caring for herself (ER 189@41:4-7). When the officers took Clustka into custody, they took on a duty to protect.
As stated in plaintiffs' opening brief ("OB"), "The Fourteenth Amendment - rather than the Eighth Amendment - applies to protect" persons in civil protective custody (OB 25). Because Clustka was not convicted of any crime, her constitutional rights derive from the substantive due process clause of the Fourteenth Amendment and not the Eighth.
Accordingly, the Eighth Amendment may not be used to delimit Clustka's rights. It provides "a minimum standard of caret" not the ceiling. Oregon Advocacy Center v. Mink, 322 F.3d 1101, 1120 (9 th Cir. 2003). In Mink, the Ninth Circuit emphasized, "We reject [the defendants'] claim that the deliberate indifference standard governs the due process rights of incapacitated criminal defendants." Id.
Thus, while defendants assert the Eighth Amendment "bans only cruel and unusual punishment," the concept of punishment has no place in this analysis. Clustka was entitled to greater constitutional protections than is afforded a convicted criminal. In Youngberg v. Romeo, 457 U.S. 307 (1982), the Supreme Court held, "Persons who have been involuntarily committed are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish." Id. at 321-22.

In Jones v. County of Sacramento, 393 F.3d 918 (9th Cir. 2004), the Ninth Circuit applied Mink to the civil detainee context, finding, "If an incapacitated criminal defendant need not prove "deliberate indifference" to state a substantive due process claim, then neither should a civil detainee, who retains greater liberty protections than his criminal counterpart." Id. at 933.
II.
DEFENDANTS ARE WRONG ON THE FACTS_ MISTAKEN ON THE LAW, MISGUIDED ON THE ANALYSIS
A. Deliberate Indifference to Suicide Threats le Triable Issue Whether Officers Had Discretion to Disregard Clustka's Suicide Threats
Defendants assert Robertson and Ashton "reasonably understood" Clustka's act in wrapping the seatbelt around her neck to be simply an attempt to "manipulate" her situation (AB 27:11-12, 28:1-2). According to defendants, because it was not a "serious" suicide attempt, they had discretion to ignore it: "When she told the officers to kill her or she would kill herself, the officers had no more reason to believe Clustka would kill herself than she did that the officers would actually kill her" (AB 27:6-15). Cynically, both officers deny her actions were in any way connected to suicide. Ashton was clear: "It was not a suicide attempt" (ER 186@31:2224). Robertson was equally clear: Suicide threats by intoxicated persons "don't count" (ER 230@108:5-11).
Thus, the officers claim: (1) They were free to assume Clustka was being manipulative; and (2) because she was being manipulative, her suicidal

threats were not serious. To them, her death by suicide two days later was unforeseeable, something they could not know would occur and for which they are not liable. In their eyes, it bore no relationship to what they saw and heard her do in the paddy wagon.
Defendants' position runs counter to the testimony of RPD officials, jail officials, and medical staff. It runs counter to admissions by Robertson and Ashton, counter to common sense and counter to Ashton's understanding of the police officer's purpose, to "help people in need" (ER 197@76:6-8) as well as Robertson's belief that it is "his job" to take every precaution to ensure people do not harm themself (ER 225@86:20-24). The officers' admissions create a triable issue whether Clustka's conduct constituted a suicide attempt that the officers knew to take seriously, whether they had discretion to ignore it, whether it was connected to her death two days later, and whether it was reasonable for them to fail to report it.
a. Triable Issue re Intoxication
Defendants claim Clustka's intoxication nullified their obligation to take her suicide attempt and threats seriously. (AB 27:16-28:2). Robertson testified he is not obligated to take seriously suicide threats made by intoxicated persons (ER 216@51:4-7, 230@107:5-11). It is "his call" to decide whether or not someone making such a threat means it and whether or not he will report it to jail staff (ER 216@51:8-14, 216@52:6-14). Ashton agreed, he would not consider a statement from an intoxicated person "credible" (ER 193@58:17-24).
Robertson's and Ashton's supervisor Sgt. David Evans, RPD Deputy Chief James Johns, Washoe County Lt. Milt Perry (a former RPD officer), and Washoe County Jail Health Services Administrator Gall Singletary all

contradicted defendants' position. They testified that all suicidal statements must be taken seriously. It was not for Robertson and Ashton to decide whether Clustka was serious, manipulative or unreasonable when she tightened her seatbelt around her neck and screamed suicidal threats. These witnesses were clear: These officers had no discretion to disregard Clustka's suicidal gestures and words even if she was intoxicated.
Robertson and Ashton had no idea what Clustka was capable of. What they did know from the wants and warrant's check was that she had violent tendencies and a history of mental problems (ER 181@11:12-18). What they saw was a woman unable to care for herself, disheveled, angry, emotional, distraught, unable to walk and yelling at the top of her lungs she wanted to die, begging to be killed and choking herself with a seatbelt (ER 188@37:5-38:23).
Johns testified it is "never" okay to ignore a suicide threat (ER 264@55:15-18). A threat of suicide from an intoxicated detainee should be taken as seriously as a threat from a non-intoxicated detainee (ER 262:47:2548:4). It is "not" RPD's policy to ignore suicide threats by intoxicated people (ER 262@21-24).
Evans testified that threats of suicide from intoxicated persons are not to be disregarded (ER 276@34:4-14). He would "never" advise officers under his control to disregard a detainee's suicide threat (ER 275@29:2530:15). Evans further testified it would not be appropriate for transporting officers to disregard an intoxicated person's suicide threat because it's an "important statement" (ER 276@34:15-35:25).
Perry added it would be "against the rules" to disregard the suicide threats of an intoxicated person." "IT]he threat to kill themself by any detainee should be taken seriously" (ER 305@27:6-21). Had he transported

an intoxicated person who said she wanted to kill herself and wrapped a seatbelt around her neck, he would have told jail staff" (ER 259@35:9-19).
Finally, Singletary testified that "threats of an intoxicated person...should be taken seriously" (ER 165@19:20-20:7). She never heard that the suicide threat of an intoxicated person should be disregarded (ER 165@20:15-20). She is aware of a statistical correlation between intoxication and suicide (ER 165@18:24-19:7).
b. Triable Issue re Need for Medical/Psychiatric Care Defendants insist Clustka's suicidal threats were unworthy of "comment or treatment" by a doctor (AB 29:2-5). They argue her gestures and threats did not demonstrate an "objectively serious medical need," required no medical care, and triggered no reporting obligation (AB 29:1419). Perry, Singletary, Evans, and Johns flatly disagree. These witnesses testified that, anytime the "possibility" of suicide is raised, it must be reported because that is the only way to insure medical care. There is no discretion to not report. Perry, a former RPD officer and jail operations chief, testified he wants every suicide threat taken seriously and every person making such a threat to be seen by medical personnel (ER 316@69:23-70:3). Jail procedures dictate that a report of suicide threats will initiate medical intervention. When a person expresses suicidal intent, the jail must consult with medical staff (ER 313@59:22-50:9) "We rely on the medical staff and [ask what] we should do" (ER 309@43:3-6). All communications between transporting officers and jail staff regarding even the "possibility" of suicide must be reported and documented and given to medical staff (ER 312@53:15-19).

Whether an inmate is in CPC or the regular jail does not change the equation. Regardless of where an inmate is placed, suicidal persons must be reported so medical help may be obtained. Perry testified it is "very important" to monitor an inmate in CPC who has stated intent to kill oneself: "We have a duty to make sure people don't hurt themselves" (ER 302@16:5-17:21).
Singletary testified that the threats of "anyone" who states they want to commit suicide should be inquired into. Such persons are in need of urgent medical intervention and the only way that can be obtained is ff the threats are reported when heard (ER 165@20:9-13). She agreed such threats are important because "two-thirds" of all suicide victims communicate intent to commit suicide before actually doing it (ER 165@20:21-166@21:1). At the very least, the information should be given to a nurse who will then do an "assessment" (ER 171@41:3-16). "[T]he more information that can be given to medical staff at a jail about a potential suicide at a jail about a potential suicide risk the better job the medical staff can do to avert suicide" (ER 164@14:11-15).
Evans testified the reason medical personnel should be involved whenever suicide threats are made is because "a doctor is probably better suited than a police officer to make determinations" regarding the potential for suicide. In his opinion, someone with some type of medical training is in a "better position" to accurately evaluate a person who has threatened to kill themself than a police officer (ER 274@25:7-23). Accordingly, when an officer hears from someone that they intend to kill themself, the officer should make a report (ER 274@28:24-29:6). Had Evans transported

someone who said he wanted to kill himself, he would have reported it to jail staff (ER 279@47:14-18, 288@81:18-23,280@49:10-21).
Finally, Johns confirmed that the officers should have told jail staff what Clustka had done in their transport vehicle: "They should have told the jail when they were there" (ER 260@39:13-19). He would want someone at the jail with medical training to handle the matter (ER 265@58:22-59:1).
c. Jail Changed Policy Upon Clustka's Death So seriously does the jail take its need to be alerted to potential suicide threats that it changed its policy one month after Clustka's death to add a written reporting requirement. No longer may transporting officers simply "drop off" detainees for booking and processing. Now they a11 must fill out a form specifically designed to elicit information regarding potential suicides (ER 166@21:19-24). This new policy is expressly designed to prevent what happened to Clustka. Singletary testified that because suicide prevention is such a high priority, "when officers transport individuals to the jail they're given this form which references suicide risk" (ER 166@23:21-25). All transporting officers must" complete it and hand it to the intake nurse (ER 166@22:1920). This policy change is strong circumstantial evidence of the importance the jail places on reporting such conduct and its recognition of the harm "discretionary" failures to report suicide threats can cause.
d. Defendants Disingenuous in Claiming No Suicide Risk Because Others Did Not Recognize It
Defendants further claim that, not only did the facts fail to indicate that Clustka presented an objectively serious threat of suicide, others besides Robertson and Ashton failed to recognize the threat as well - inferentially,

because others did not recognize the threat, it was reasonable for Robertson and Ashton to not recognize the threat. Defendants point to Dr. Caplan, ambulance medical technicians, the jail intake nurse, and the emergency room physician who saw Clustka hours after her release from CPC. They argue that "none of these people who came in contact with Clustka thought she was a suicide risk" (AB 28:3-6). This argument is disingenuous.
The fallacy with defendants' approach is that only Robertson and Ashton witnessed Clustka wrap the seatbelt around her throat and yell she wanted to die. These others did not. Dr. Caplan, the ambulance technicians, the jail intake nurse, and the emergency room doctor did not see or hear what Robertson and Ashton saw and heard. The jail intake nurse and the emergency room doctor saw her after the paddy wagon incident but had no knowledge of it. None of these persons were privy to what Robertson and Ashton saw and heard. Accordingly, without notice of the suicide attempt, none of them had a basis to consider Clustka at risk for a repeated suicide effort. That is the point of this lawsuit, had Robertson and Ashton simply told these others what they witnessed when they witnessed it, there would have been opportunity to save her.
2. Triable Issue re Actual Knowledge In addition, defendants maintain that the evidence set forth by plaintiffs is not probative of the officers' awareness that Clustka was at risk of self-harm (AB 33:5-15). First, defendants assert, the fact that the officers saw Clustka wrap the belt around her neck did not mean they knew she wanted to kill herself (AB 33:16-18). Second, defendants assert, the words spoken by Clustka ("Kill me, or I'll kill myself") conveyed nothing of significance to them.

Despite the officers' denials, their knowledge may be inferred based on circumstantial evidence. In LoUi v. County of Orange, 351 F.3d 410 (9th Cir. 2003), the Ninth Circuit recognized the importance of circumstantial evidence in the analysis of deliberate indifference. Id. at 420-21. In Lolli, the plaintiff testified he told the defendant officers that he was diabetic and needed food. To establish that the officers acted with deliberate indifference, however, the plaintiff must also demonstrate that the officers "inferred from this information that Lolli was at serious risk of harm if he did not receive the food." Id. at 420. Like Robertson and Ashton, the officers in Lolli denied they knew of this risk of harm.
Notwithstanding the officers' denials in Lolli, the Ninth Circuit found an issue of fact over their indifference based on the detainee's extreme behavior, his obviously sickly appearance and his explicit statements that he needed food because he was a diabetic. The court stated, "Much like recklessness in criminal law, deliberate indifference to medical needs may be shown by circumstantial evidence when the facts are sufficient to demonstrate that a defendant actually knew of a risk of harm." Id. at 421.
Whether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence,...and a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.
Farmer v. Brennan, 511 U.S. 825, 842 (1994); see also, Gibson v. County of Washoe, 290 F.3d 1175, 1197 (9th Cir. 2001) (plaintiff may demonstrate officers "must have known" of risk of harm by showing obvious and extreme nature of detainee's behavior).
10

Plaintiffs have set forth much circumstantial evidence from which the officers' indifference to Clustka's suicide risk may be inferred. Clustka's attempt to choke herself by lapping the seatbelt about her neck was so obvious and extreme that the officers immediately stopped the paddy wagon, went to the back, unwrapped the seatbelt from her neck, restrained her with handcuffs and secured her with the seatbelt. Clustka's attempt to choke herself coupled with her repeated threats to kill herself is obviously extreme conduct that would place any officer on notice of her suicide risk.
The officers admit Clustka was disheveled, belligerent, angry, "clearly upset," "agitated," and "irrational" when she arrived at the jail (ER 188@37:5-17, 188@37:24-38:5, 195@38:3-23). She was so "emotionally distraught" that, Ashton testified, she yelled she wanted the officers to "kill her" or she would "kill herself" (ER 188@39:4-17, 188@40:2-7). What more could Clustka have done to communicate her extreme distress and urgent desire to kill herself?. At the very least, the obvious and extreme nature of her behavior creates a triable issue over whether the officers actually knew she presented a suicide risk.

ao

Triable Issue Based on Ashton's Pre-Lawsuit

Admissions

Defendants further assert that neither Ashton nor Robertson inferred a

serious risk of harm from Clustka's conduct in the paddy wagon. However, before Ashton was sued - before defendants manufactured their defense

dismissing Clustka's gesture and threats as manipulation and not suicidal he made revealing admissions. On April 28, 2005, the day Clustka killed herself, Ashton admitted to jail deputy Dennis Hippert that two days earlier,

while he and Robertson transported Clustka to the jail, she had "tried to

11

hang herself" in the paddy wagon and they made a decision to not report her "suicide attempt" (ER 74). Ashton did not tell Hippert at the time, before he was sued, that Clustka was "manipulating" the situation - he told Hippert straight out she had attempted suicide. Ashton made additional admissions to the effect Clustka had actually attempted suicide. Before this lawsuit was filed, Ashton expressed to other individuals that Clustka had "tried to choke herself" (ER 180@7:14-20, 149:18-19). Also, in the heat of the moment, when he saw Clustka wrap the seatbelt around her neck through the video monitor, Ashton told Robertson she was "choking herself" (ER 195@65:2-7).
Ashton also told Hippert immediately after the suicide that he "would be writing a report" and his "sergeant would be pissed" (ER 74). From this, it may be reasonably inferred that Ashton knew his failing to report what he witnessed was improper.
Ashton had such a guilty conscience that the day after Clustka was transported to the jail, he confessed to an associate, Officer Kelly Fox, how he was "uncomfortable with Clustka's transport and the fact that she had wrapped the seatbelt around her neck." Ashtori's "confession" took place the day before Clustka actually took her life (ER 288@83:5-86:9). It may be inferred from his confession that he knew he had done the wrong thing in not reporting her suicide attempt and felt guilty.
b. Triable Issue re Lethality of Seatbelt Choking In their answering brief, defendants assert as though it were fact that the officers were not deliberately indifferent to a serious risk of harm because "Clustka lacked the means to commit suicide." They state:
12

Even had she managed to pass out from the seatbelt, she would have lost all tension on the belt and could not have killed herself (AB 32). However, there is a clear triable issue as to their indifference based on the obvious extremity of her conduct. First, as a tool for suicide, a seatbeR is easily as lethal as a rope, a bed sheet, or any other hanging device. It can also make a loop that can be tightened about the neck. To kill herself, Clustka needed only to buckle the seatbelt into a loop after lapping it about her neck then drop her weight to the floor--exactly what she did with a bed sheet two days later. Second, even if Clustka could not have killed herself using the seatbelt as a means to hang herself and merely "passed out" as defendants proffer, there can be no reasonable doubt that "passing out" also presented a serious risk of harm that the officers cannot have ignored. Third, as Perry testified, it was obvious Clustka wanted to harm herself: "By wrapping it [seatbelt] around her neck whether or not it was tight, to me that would indicate that she's making ideations of wanting to harm herself" (ER 318@79:17-23). According to Evans, even if someone threatens suicide, stating they want to kill themself but without means to effect the deed, he would still feel it important to have the person "checked and explored a bit further" (ER 277@38:15-39:15).
c. Triable Issue Over Policy Violations Ashton testified unequivocally to his belief that he and Robertson violated department policy and state law by failing to seatbelt Clustka on the drive to the jail (ER 185@25:11-15). Regardless of defendants' arguments-that technically the officers' failure to handcuff or seatbelt Clustka may not
13

have violated department policy or state law--the significance of Ashton's admission is undeniable. Because the officers were convinced they had violated department policy and state law, they were motivated to conceal their role in the resulting incident. They were reluctant to inform jail staff of her suicide attempt because that would necessarily mean they would have to explain why she was walking about the vehicle and how she happened to lap the seatbelt around her neck. Such explanations would reveal their ineptness. It matters not whether it actually was or was not a policy violation, Ashton thought it was and was motivated to keep quiet about it.

d. Triable Issue re Requirement to Report All Suicide Threats
Defendants further assert in their answering brief that Robertson and Ashton were not required to write reports or notify jail staff of what they witnessed. However their own testimony belies all claims to the contrary. Robertson testified there was a policy requirement that suicide threats must be reported to a supervisor (ER 237@133:13-19). Ashton similarly testified he knew suicide attempts should be reported and officers do not have discretion to decide not to report a suicide attempt (ER 197@75:15-17, 197@75:18-20).

B. Fourteenth

Amendment

Balancing

Requires

Consideration" than Owed a Convicted Criminal

"More

Robertson and Ashton exercised their discretion to transport Brenda Clustka to jail in a civil protective custody. This is a decision they made, a decision that deprived Clustka of her liberty. The officers recognized Clustka was a troubled person in need of help and protection. In deciding to transport her to jail, they took on a constitutional obligation to respond reasonably to

14

her suicide risk. That is the essence of "civil protective custody"--to protect. As Perry testified, "Once someone's been placed in our care we've taken away their civil liberty to move around in normal care and part of that as peace officers we have a duty to protect them" (ER 302@16:5-17:21).
The officers recognized Clustka was impaired to the point where she was unable to care for herself. They cajoled her into entering the paddy wagon by lying to her. Robertson told Clustka they were taking her home to retrieve her belongings when they had no intention of doing so. Instead they took her to jail. When she saw the jail out the paddy wagon window, she became "emotionally distraught," grabbed a paddy wagon seatbelt and attempted to choke herself.
In a Fourteenth Amendment due process analysis, the court must first identify the substantive right at issue. Mink, 322 F.3d at 1121. As an incapacitated civil detainee, Clustka had a liberty interest in having her threats of self-harm responded to appropriately. Id. In Mink, the Ninth Circuit defined the liberty interest of incapacitated criminal detainees as an interest in a "realistic opportunity...to improve the mental condition for which they were confined." The next step after defining the liberty interest at stake is for the court to balance Clustka's liberty interest in receiving appropriate care against "the legitimate interests of the state." ld.
When Clustka threatened suicide in their presence, the officers thus were obliged to take steps to improve her mental condition by providing "a realistic opportunity" to protect her against suicide. Robertson and Ashton deliberately chose to do nothing besides unwrapping the seatbelt and securing her in her seat. They said nothing to the jail staff about what they had witnessed. Whether the officers' failure to take any steps to protect
15

Clustka violated her substantive due process rights depends on the result of the balancing of her rights against legitimate state interests.
The officers obviously fail such a balancing because there is no legitimate state interest in the officers' failure to report Clustka's suicide attempt and threats. Robertson testified it would have taken five seconds to advise jail staff of her suicide attempt (ER 215@48:1-9). This is not even a case about lack of funds, staff or facilities, as was argued without success in Mink. It is a case of "the officers couldn't care less." As Ashton admitted when asked why he didn't inform anyone at the jail about her suicide attempt, "Honestly, I didn't even think about it... [it] never really even crossed my mind" (ER 152:6-8).

Co

Triable Issue Whether Officers' Violation Caused Clustka's Jail

Suicide

1. Officers' Duty to Protect Under Custodial Detention Exception to DeShaney Rule

"There are two exceptions to the general rule that 'a State's failure to protect an individual against private violence...does not constitute a violation of the Due Process Clause.'" Huffman v. County of Los Angeles, 147 F.3d 1054, 1058 (9th Cir. 1998) (citing DeShaney v. Winnebago County Dept. of Soc. Servs., 489 U.S. 189, 197 (1989)). "First, 'when the State takes a person into its custody and holds him there against his will, the Constitution imposes some responsibility for [that person's] safety and general wellbeing.'" Huffman, 147 F.3d at 1057-58. Second, where the state affirmatively places the individual in a dangerous situation. See L.W.v. Grubbs, 974 F.2d 119, 121 (9thCir. 1992). "The state-created danger theory provides that a constitutional duty to protect may be imposed when state

16

actors have affirmatively acted to create a plaintiff's danger, or to render a

plaintiff more vulnerable to danger. Kneipp v. Tedder, 95 F.3d 1199, 1207 (3rdCir. 1996).

There is no doubt that Robertson and Ashton took Clustka into custody

and owed her a duty of protection. The dispute revolves around the question

whether that duty of protection extends to a duty to report Clustka's suicide

attempt and threats. Had the officers reported what they had witnessed, that

report would likely have triggered medical intervention--either a Legal 2000

initiated by jail or nursing staff or suicide prevention protocol while she was

in CPC followed by a Legal 2000 if she continued to exhibit suicidal

ideation. According to Perry and Singletary, under either scenario, Clustka

likely would have been taken to the hospital for suicide assessment. The

officers acted affirmatively to harm Clustka by failing to report her suicide

attempt to jail staff, thereby intervention.

depriving

her of appropriate

suicide

The officers also acted affirmatively to harm Clustka because they

enticed her into the paddy wagon by lying that they would take her home to

retrieve her possessions. They lied because itwas the only way she would

cooperatively enter the wagon. They admit they intentionally lied to her (ER

188@37:5-8, 213@39:4-9). They further acknowledge she was not suspected

of committing any crimes when they lied to her (ER 189@41:1-3). The sole

reason the officers took her to jail was because she had a diminished capacity

to care for herself due to intoxication (ER 189@41:4-7). Their betrayal of

Clustka's trust and the prospect of being jailed is what triggered her suicide

attempt in the paddy wagon. The officers endangered her with their lies and

17

false promise, then they failed her by not reporting her resulting suicide attempt and threats.
2. Triable Issue over Cause in Fact a. Triable Issue Whether Clustka's Suicide Threats Would Have Been Addressed If Reported
Jail officials Perry and Singletary agree there were several options available to protect Clustka had the officers only reported her suicide attempt. Had Perry been the intake sergeant at CPC when Clustka was brought to the jail, he would have placed her on suicide watch, mental health professionals would have talked to her, and she could have been taken on a Legal 2000 to the hospital (ER 318@77:20-78:16). Perry was adamant, it would have been a "sure thing" she would have been seen by a mental health professional (ER 319@83:11-84:3).
Singletary testified that, had Robertson and Ashton reported Clustka's suicide attempt, the jail nurses would have done a more complete evaluation (ER 174@53:13-54:6). Her recent suicide attempt and history of attempts would have been relevant (ER 175@57:6-10). Singletary added that, generally when staff is informed of a suicide attempt, the person is transported to a local emergency room on a Legal 2000 (ER 173@51:14-15, 173@52:9-18).
While it can never be certain whether being evaluated by mental health professionals would have prevented Clustka's suicide in jail two days later, what is certain that those individuals are trained to protect against suicide. Following each of Clustka's previous suicide attempts - when she received medical attention for suicide issues - her suicidal ideation ceased for a time. The medical professionals bought her time by injecting clear thinking into
18

her self-destructive tendencies. Because Robertson and Ashton failed to report Clustka's suicide threats, they deprived her of an opportunity for the suicide assessment, counseling, and supportive assistance she so desperately needed.
While it is a triable issue whether appropriate intervention would have prevented Clustka's suicide two days later, it is non-disputed that in the past medical intervention had consistently protected her. It consistently worked to buy her more time. Accordingly, it is not speculative that Clustka would have received the protections she needed on April 26, 2005, had the officers reported what they witnessed. It is highly likely her threats would have been taken seriously and she would have been helped to avert the crisis as she had been before.
b. Triable Issue Whether Clustka Would Have Been Sent to Hospital on Legal 2000
Defendants are mistaken when they assert that, because Clustka was intoxicated, she would not have been sent to the hospital on a Legal 2000 but would have been made to sober up first (AB 17:9-12). 1 Their position is contrary to the evidence. Perry, an RPD oi'ficer for eight years and a Washoe County sheriff's deputy for 14 years, knows how officers transport detainees to the jail and how the jail handles them once transported. Perry testified that, just because someone is intoxicated does not mean that person must go to CPC. The jail is not prohibited from taking an intoxicated person
! Defendants misrepresent psychiatrist Caplan's testimony that Clustka could not have been taken to the psychiatric hospital while intoxicated (AB 56:23-25). They ignore emergency physician Gansert's testimony that Clustka would have been taken, first, to the emergency room for detoxification/initial suicide assessment, then to the psychiatric facility as appropriate (ER 325@12:9-19).
19

to the hospital (ER 315@65:3-9, 314@63:13-24). Singletary added, if transporting officers alert CPC personnel of a suicide attempt, its staff are trained to refuse entry to the jail (ER 172@47:1-8; 48:3-12). Accordingly, had Robertson and Ashton notified jail staff of Clustka's suicide threats, deputies or nursing staff would likely have refused her entry to the jail and instructed she be taken to the hospital on a Legal 2000.

Co

Triable Issue Whether Medical Intervention Would

Have Prevented Clustka's Death

Defendants cynically assert there are no guarantees Clustka would not have killed herself anyway had she been taken to the hospital on a Legal 2000. Defendants' position is belied by the fact that Clustka had attempted suicide many times before and, after each intervention, was no longer suicidal. After previous suicide commitments, she generally remained "suicide free" between eight and 24 months (ER 97-142).
There is no dispute that Clustka was despondent and mentally ill when the officers took her to jail on April 26. She was estranged from her mother, locked out of her home, and intoxicated. But she had experienced similar problems before and, with appropriate intervention, successfully warded off her suicidal ideation. While Washoe Medical Center emergency physician Gansert could not testify with one-hundred percent certainty what would have happened had Clustka been taken to the hospital on April 26, 2005, he was able to testify with one-hundred percent certainty that the hospital would have taken her suicide threats very seriously (ER 325@12:21-13:2). Clustka would have received a thorough screening, evaluation, and an "alert team" would have assessed her. If warranted, she would have been transferred to a

20

psychiatric facility, 324@7:24-8:20).

generally

NNMHI

(ER 323@5:24-324@6:10,

According to NNMHI psychiatrist Caplan, had Clustka been transferred to his facility following her renewed suicide threat, she would have been kept overnight, carefully assessed, closely monitored, and nurses and social workers would have interacted with her to remove suicidal

thoughts and address her psychological issues (ER 336@14:16-15:2). According to Dr. Caplan, "most people" who are suicidal want to be saved

and the fact that Clustka had "improved rapidly while receiving appropriate intervention and care" before was "a sign of a person who would want to be saved" (ER 335@20:12-21:1). She had a close relationship with her children. She had been at NNMHI only the day before, April 25, and had she been sent there again on April 26, most likely she would have been kept

on an involuntary commitment because, according to Dr. Caplan, her intoxication and her repeated suicide attempts - two suicide attempts within two days - would have set off "alarm bells" (ER 336@25:4-23).
Medical intervention for someone as emotionally distraught as Clustka was absolutely necessary. Just as with heart at(ack victims or stroke sufferers there never are guarantees medical help will save a life. Just because medical

help is necessary does not mean it will necessarily be successful. But one thing is certain: Without help, without effort, without trained professional intervention, heart attack victims, stroke sufferers, and the suicide prone have a reduced chance of survival. It is a triable issue that medical

intervention for Clustka's renewed suicide threats in the paddy wagon would have saved her.

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3. Triable Issue re Proximate Causation
a. Foreseeable Clustka Would Attempt Suicide in Jail It was foreseeable to the officers that Clustka would attempt suicide in the jail within 48 hours of her encounter with Robertson and Ashton because they knew the prospect of being jailed was precisely what provoked her attempt to choke herself. The officers had deceived her into believing they were going to retrieve her belongings and she became extremely agitated on realizing they were taking her instead to jail. If Robertson and Ashton did not get the message before, they certainly got it when she screamed at them, "You lied to me. Just kill me or I'll kill myself then" (ER 150:1-8, 195:66:7-10, 353:21-25, 363:10-15). The fact that she did not commit suicide during her initial brief stay at the jail but rather after being returned there the next day does not absolve the officers of responsibility for their failure to protect. Prompt medical attention could have assisted her as it had in the past. Had the officers reported what they saw when they saw it she would have received the intervention she so desperately needed and would likely have been protected.
b. There Was Neither Intervening nor Superseding Cause Defendants further claim that Clustka's "several medical evaluations after she was removed form the transport vehicle on April 26" constituted an intervening and superceding cause of her suicide. They assert, "[T]he failures of the medical professionals to properly diagnose her were superseding causes of her suicide that were not foreseeable to the officers" (AB 50:22-51:14). Defendants' argument is that medical professionals failed to discern she was a suicide risk, so how could the officers? They ignore that none of the medical evaluations Clustka received during the time between
22

her suicide threats and her death contained the vital information that she had again attempted suicide. This vital information was known only to Robertson and Ashton and not shared with anyone who could have helped her. The medical professionals who encountered Clustka between her paddy wagon suicide threats and her ensuing death were never informed of those threats. They did not implement appropriate precautions because they had no way to know they were necessary. Given that no suicide precautions were in place, Clustka was foreseeably at high risk of killing herself on being returned to jail the next day.
D. Qualified Immunity Lacking
Robertson and Ashton lack qualified immunity. Long before the incident giving rise to this case, by at least 1995, it was clearly established that "officers could not intentionally deny or delay access to medical care." Clement v. Gomez, 298 F.3d 898, 906 (9th Cir. 2002).
E. Triable Issue re City's Liability Based on Failure to Train and Lack of Suicide Prevention Policy Plaintiffs allege that City of Reno is liable for deliberate indifference
to Clustka's serious medical needs because of its lack of policy regarding reporting potential suicides and absence of training for police officers who frequently encounter suicidal persons. The "inadequacy of police training may serve as the basis for §1983 liability only where the failure to train 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)." City may be held liable under section 1983 if its deliberate policy caused the constitutional violation alleged. See MoneU v. Dep't of Social
23

Services of New York, 436 U.S. 658, 694 (1978); see also Lee v. City of Los Angeles, 250 F.3d 668, 681 (9t_ Cir. 2001).
Because the policy plaintiffs complain of is a failure to train, they must show: (1) deprivation of a constitutional right, (2) that the municipality had a training policy that "'amounts to deliberate indifference to the [constitutional] rights of the persons' with whom [its police officers] are likely to come into contact;" and (3) that the constitutional injury would have been avoided had the municipality properly trained those officers. Lee, 250 F.3d at 681; Gibson, 290 F.3d at 1193-94.
As to the first requirement, plaintiffs have raised an issue of fact over the denial of necessary medical care to Clustka, a constitutionally protected right given her custodial status. As to the second, RPD's absence of a police policy or training procedure caused the defendant officers' erroneous belief they had "discretion to decide" whether Clustka's clear suicidal overtures were sufficiently "serious" to report, hence it caused a constitutional wrong. As to the third, had the City properly trained Robertson and Ashton to report all suicide attempts and threats, suicide precautions would have been in place to save Clustka's life.
While law enforcement officials agree suicidal attempts and threats should always be reported, Robertson and Ashton were never trained in their duty to report. Ashton testified he received no training at RPD on what is or is not a suicide attempt (ER 186@32:12-15). Ashton acknowledged that training in how to deal with potential suicide would "help to do the job better" and he thought he should have the training (ER 193@59:24-60:4; 194:62:13-18). Robertson, a 17-year RPD veteran, similarly testified he had
24

not received any training or classes on how to deal with potentially suicidal detainees (ER 228@98:2-4, 231@ 111:16-19).
RPD Deputy Chief Johns testified he was "not sure" if there was a policy in writing requiring officers to report suicide threats by detainees but agreed there should be: "I think that would be a good policy to have in writing," Johns testified (ER 261:40:21-41:15). He added, it is never "okay to ignore a suicide threat" by a detainee (ER 264@55:15-18). Evans similarly agreed he was not aware of "any" suicide prevention training given RPD officers (ER 274:26:3-9). He did not recall receiving suicide training in his 27 years with RPD (ER 277@18-38:13).
Defendants assert that plaintiffs cannot raise a failure to train issue because Clustka's situation was unique and not likely to reoccur (AB 55:2526). This too is untrue. Robertson testified he regularly confronts suicidal individuals - approximately 500 to 1000 persons have told him they wanted to kill themselves during his career (ER 231@111:20-25). These high numbers are expected because police often encounter despondent people whose lives, through economic misadventures or criminal activities, are deteriorating. If one officer, Robertson, has encountered so many potentially suicidal persons, it is highly likely other officers have as well. Accordingly, what happened to Clustka could easily reoccur.
Suicide training is especially urgent for RPD officers because both Robertson and Ashton testified that should they encounter the same situation again -an intoxicated person making suicide gestures and verbal threats they would do exactly as before and make no report (ER 236@130:6-7, 187@35:5-7). So long as officers like these believe they have complete discretion to ignore their duty to report potential suicides and so long as they
25

to fail to report such incidents, detainees like Clustka will continue to be at risk. The conduct at issue in this case took place in 2005. In 2006, when depositions were taken in this case, no new policy was in place. Johns admitted such a policy would be a "good idea" - yet he has done nothing to enact such a policy and knows of no such policy in the works. As defendants point out in their answering brief, Robertson and Ashton were never disciplined for their acknowledged failure to report Clustka's suicide attempt and threats. Accordingly, City of Reno through its police officers has demonstrated a deliberate indifference to a serious risk of harm for suicidal detainees.
III. CONCLUSION
For reasons stated, plaintiffs again respectfully ask this Court to reverse the lower court's grant of summary judgment to the defendants and to remand this case for trial.

DATED this .,_0 day of

,2008.

TERRI KEYSER-COOPER DIANE K. VAILLANCOURT Attorneys for Plaintiffs-Appellants

26

CERTIFICATE OF COMPLIANCE Fed. R. App. 32(a)(7)(c) and Circuit Rule 32-1

Pursuant to Fed. R. App. P. 32(a)(7)(c) and Ninth Circuit Rule 32-1, I certify that the attached Reply Brief of Plaintiffs-Appellants is proportionately spaced, has a typeface of fourteen points and contains 7000 words (excluding all permitted material).

DATED this _

/
day ofJ_,z._..a_j

, 2008.

DIANE K. VAILLANCOURT Attorney for Plaintiff-Appellants

CERTIFICATE OF SERVICE
I declare that: I am a citizen of the United States, employed in the town of Santa Cruz, California, over the age of eighteen years, and not a party to the within cause. On this date, I served the attached document by placing a true and correct copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the United States mail at Santa Cruz, California, addressed as follows:
APPELLANTS' REPLY BRIEF (2 COPIES)
JOHN J. KADLIC, ESQ. Reno City Attorney DONALD L. CHRISTENSEN, Deputy Reno City Attorney P.O. Box 1900 Reno, NV 89505
I declare under penalty of perjury that the foregoing is true and correct.
DATED:
DIANE K. VAILLANCOURT

 </s> Case: 07-15572 05/20/2011 Page: 1 of 24 ID: 7760165 DktEntry: 53

No. 07-15572 _____________________________________________________________________
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
_____________________________________________________________________ CHARLA CONN & DUSTIN CONN, Plaintiffs-Appellants,
v.
CITY OF RENO, RYAN ASHTON & DAVID ROBERTSON,
Defendants-Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA

APPELLANTS’ SUPPLEMENTAL BRIEF

Terri Keyser-Cooper 3300 Skyline Blvd., #274 Reno, NV 89509 (775) 337-0323
Diane K. Vallancourt 849 Almar Ave., Ste. C403 Santa Cruz, CA 95060 (831) 458-3440

Charles A. Rothfeld Paul W. Hughes MAYER BROWN LLP 1999 K St. NW Washington DC 20006 (202) 263-3146 phughes@mayerbrown.com

May 20, 2011

Attorneys for Plaintiffs-Appellants

Case: 07-15572 05/20/2011 Page: 2 of 24 ID: 7760165 DktEntry: 53

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ........................................................................ ii INTRODUCTION ........................................................................................ 1 ARGUMENT ................................................................................................ 3 I. CONNICK DOES NOT ALTER THIS COURT’S HOLDING
WITH RESPECT TO INDIVIDUAL LIABILITY. ............................. 4 II. CONNICK DOES NOT ALTER THIS COURT’S HOLDING
WITH RESPECT TO MUNICIPAL LIABILITY................................ 7 A. The Failure To Train Does Not Turn On A Single-
Incident Theory. ........................................................................ 8 B. Even Absent A Pattern Of Past Events, A Failure To
Train Claim Is Cognizable Here. ............................................ 10 C. Municipal Liability Is Also Established By The City’s
Unconstitutional Policies. ....................................................... 16 CONCLUSION........................................................................................... 19

i

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TABLE OF AUTHORITIES

CASES

Page(s)

Brady v. Maryland, 373 U.S. 83 (1963) ............................................ 3, 14, 17

City of Canton v. Harris, 489 U.S. 378 (1989) ............................................ 11

City of Reno v. Conn, 131 S. Ct. 1812 (2011) ................................................ 2 Conn v. City of Reno, 591 F.3d 1081 (9th Cir. 2010) ...........................passim

Connick v. Thompson, 131 S. Ct. 1350 (2011) .....................................passim

Kodimer ex rel. Ramskill v. County of San Diego, 2011 WL 805859 (S.D. Cal. 2011) ............................................................ 7

Simmons v. Navajo County, 609 F.3d 1011 (9th Cir. 2010) ..................... 6, 7

Whitt v. Stephens County, 529 F.3d 278 (5th Cir. 2008) ............................ 14

ii

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INTRODUCTION While in the custody of defendants-appellees Ryan Ashton and David Robertson, City of Reno police officers, Brenda Clustka attempted to commit suicide by wrapping a safety belt around her neck. After the officers forcibly removed the belt from her neck, Clustka screamed at the defendants that she wanted to commit suicide. Rather than report this incident to subsequent custodians, Ashton and Robertson did nothing. Clustka was released and subsequently arrested the following day. Because her custodians were not informed of her recent suicide attempt and threat, no suicide precautions were taken and a bed sheet was provided in her cell. Clustka committed suicide, hanging herself with the sheet. Clustka’s death was not the only suicide at Washoe County Jail. Between January 2004 and August 2005, five other detainees committed suicide at the facility. Less than a month after Clustka’s suicide, the Reno Police Department commenced a training program for its officers with respect to suicide prevention and also implemented a new suicide prevention policy to screen arrestees at intake. Cluskta’s survivors, plaintiffs-appellants here, filed suit against Ashton, Robertson, and the City of Reno. The district court granted summary judgment in favor of the defendants, but this Court reversed, finding
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triable issues of fact with respect to both individual and municipal liability. Conn v. City of Reno, 591 F.3d 1081 (9th Cir. 2010). Defendants sought certiorari, and the Supreme Court granted, vacated, and remanded in light of its recent decision in Connick v. Thompson, 131 S. Ct. 1350 (2011). See City of Reno v. Conn, 131 S. Ct. 1812 (2011). Nothing in Connick, however, alters the outcome of this appeal.
In Connick, the Supreme Court reiterated the standard for municipal liability. The Court reaffirmed the longstanding view that “a municipality’s failure to train its employees in a relevant respect” may be challenged under 42 U.S.C. § 1983 when it “amount[s] to deliberate indifference to the rights of persons with whom the untrained employees come into contact.” Connick, 131 S. Ct. at 1359 (alteration & quotation omitted). “[W]hen city policymakers are on actual or constructive notice that a particular omission in their training program causes city employees to violate citizens’ constitutional rights, the city may be deemed deliberately indifferent if the policymakers choose to retain that program.” Id. at 1360. Accordingly, a “pattern of similar constitutional violations by untrained employees is ordinarily necessary to demonstrate deliberate indifference for purposes of failure to train.” Ibid. (quotation omitted).
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Because the plaintiff in Connick did not assert a pattern of past events, he attempted to rely solely on a “single-incident” theory of liability, where a “showing of ‘obviousness’ can substitute for the pattern of violations ordinarily necessary to establish municipal culpability.” 131 S. Ct. at 1361. Although the Court noted that “unconstitutional consequences of failing to train could be so patently obvious that a city could be liable under [Section] 1983 without proof of a pre-existing pattern of violations,” the Court held that a failure to train government attorneys to avoid violations of Brady v. Maryland, 373 U.S. 83 (1963), is not such a circumstance. Connick, 131 S. Ct. at 1361-63.
ARGUMENT Connick has no implications for this Court’s prior holding in this case, with respect to either individual or municipal liability. As it solely dealt with a municipal claim, Connick has no bearing on the individual liability theory that turns on deliberate indifference. Nor does Connick call into question municipal liability here, insofar as the plaintiffs’ claims are based on a series of past events. Moreover, quite unlike the circumstance considered in Connick, the need for municipalities to train officers to report known suicide attempts and threats is obvious, rendering unnecessary the need for a series of past constitutional violations. Finally, Con-
3

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nick’s holdings with respect to a failure to train claim do not speak to a municipality’s unconstitutional policies, which are also implicated here. The Court should affirm its prior ruling in its entirety. I. CONNICK DOES NOT ALTER THIS COURT’S HOLDING
WITH RESPECT TO INDIVIDUAL LIABILITY. As an initial matter, Connick—which adjudicated solely a question of municipal liability—has no implications with respect to the liability of the individual defendants. Indeed, in supplemental briefing before the Supreme Court, defendants recognized that Connick does not alter “the scope of individual officers’ liability.” Pet. Supp. Br. at 4, City of Reno v. Conn, 131 S. Ct. 1812 (No. 09-1361), 2011 WL 1321237. Connick thus provides no basis to revisit the holding on deliberate indifference. Previously, the Court concluded that “[a] heightened suicide risk or an attempted suicide is a serious medical need.” Conn, 591 F.3d. at 1095. Where there is “sufficient evidence” that an individual has an “objective, serious medical need,” an officer must respond reasonably. Ibid. Accordingly, when a police officer witnesses a detainee attempt to commit suicide and hears the detainee announce an intention to kill herself, a reasonable response entails writing an incident report or otherwise informing future custodians about these events to permit appropriate medical treatment. Id. at 1098. Given the substantial evidence in the record, the Court
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properly found triable questions of fact with respect to the individual defendants’ subjective knowledge, as well as causation. Id. at 1098-1102.
Perhaps recognizing that this case is a pedestrian application of fact to law, defendants attempted to change the terms of debate when seeking certiorari. In their petition, they argued that Conn somehow creates a duty for officers to “diagnose and report detainees’ symptoms of suicidal tendencies” (see Pet. for Writ of Cert. at i, City of Reno, 131 S. Ct. 1812 (No. 09-1361), 2010 WL 1861008 (emphasis added)), and invoked a supposed duty to “diagnose” literally dozens of times. Defendants further asserted that this Court’s opinion creates “novel, undefined, and potentially costly psychiatric-training duties on thousands of cities and towns,” and “obligates officers to make nuanced psychiatric diagnoses.” Id. at 3. Their characterization was dire: “in the Ninth Circuit officers must now detect and report myriad potential symptoms of suicidal ideations in all 38,000 arrestees each day to prevent less than one actual suicide among them.” Id. at 16-17. Defendants speculated that this Court’s opinion “might require formal psychological exercises or even clinical training.” Id. at 17.
But this case simply has nothing to do with the fanciful theory that defendants have now concocted. This Court never held that police officers must detect hidden symptoms of suicidal intention. It never suggested
5

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that officers must become psychiatrists, diagnosing mental disease. And it surely does not require officers to undergo “formal psychological exercises” or “clinical training.”
Rather, the legal holding of this Court was plain and plainly correct: when an officer watches a detainee attempt to commit suicide and then hears the detainee state an affirmative intention that she will kill herself, the officer has sufficient knowledge of a serious medical condition that requires a reasonable response. Conn, 591 F.3d at 1096. These observations require no more of a “diagnosis” than does an officer’s observation that an arrestee is suffering from a bullet wound to the leg—both are patently obvious, absent any “clinical training,” and both require an officer to take appropriate action.
The proof of the pudding is that neither this Court nor the district courts have viewed Conn as creating anything akin to the duty imagined by defendants. In Simmons v. Navajo County, 609 F.3d 1011 (9th Cir. 2010), for example, a boy committed suicide while detained. This Court affirmed summary judgment for the defendants, finding there was no evidence that defendants actually knew the boy “was ‘in substantial danger’ of killing himself.” Id. at 1018. Changes in the boy’s mood were not sufficient evidence for a claim. Id. at 1019-20. The Court’s analysis turned sole-
6

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ly on what the defendants saw and heard—not whether they properly “diagnosed” certain “symptoms of suicidal ideations.” District courts have viewed Conn similarly. See, e.g., Kodimer ex rel. Ramskill v. County of San Diego, 2011 WL 805859, at *3 (S.D. Cal. 2011) (“[A] nurse is not expected to employ the expertise of a psychiatrist * * *.”).
In sum, this Court’s holding with respect to individual liability does not require police officers to become psychiatrists. Rather, it merely obligates an officer to respond reasonably to a detainee’s known suicide attempt or threat. We are unaware of any court that has reached a contrary result. Defendants have attempted to manufacture a conflict where none exists, and Connick provides no occasion to revisit this issue. II. CONNICK DOES NOT ALTER THIS COURT’S HOLDING
WITH RESPECT TO MUNICIPAL LIABILITY. Connick similarly does not affect the municipal liability claim. Quite unlike Connick, the claim here is based on a series of incidents. Past suicides provided notice to the City of Reno Police Department of the need to better train its officers. Because single-incident liability is not necessary here, Connick is simply beside the point. Even assuming, for sake of argument, that no other suicides could have notified the City of its deficient training, a reasonable jury could nonetheless find municipal liability. Because the record demonstrates that
7

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police officers routinely confront detainees who threaten or attempt to commit suicide, and because police officers (unlike the prosecutors at issue in Connick who come equipped with extensive legal training) receive their essential training only from the municipality that employs them, the duty of a police department to train its officers with respect to reporting suicide attempts and threats is obvious. The City of Reno’s shortcomings here could thus establish liability consistent with Connick, even absent past constitutional violations.
Finally, plaintiffs have asserted an independent basis for municipal liability—that the City’s suicide prevention policy (or lack thereof) at the time of Clustka’s death was constitutionally deficient. Connick does not touch this claim.
A. The Failure To Train Does Not Turn On A SingleIncident Theory.
In their supplemental briefing before the Supreme Court, defendants recognize that Connick addresses only failure-to-train claims that arise from a single-incident liability theory. Pet. Supp. Br., supra, at 1. Thus, as defendants appear willing to concede, Connick has no bearing on a case where liability is based on a “pattern of similar” past events. Connick, 131 S. Ct. 1360. Defendants, however, contend that this case does not present a “pattern” claim.
8

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That contention is wrong. Plaintiffs’ theory throughout this case has grounded municipal liability in the pattern of past prison suicides, demonstrating that the City of Reno Police Department should have been wellaware of the need to train its officers to respond to suicidal detainees. For example, plaintiffs alleged in the complaint that “[t]he Washoe County Detention Facility has had several jail suicides. Less than one month before Clustka succeeded in killing herself, on March 29, 2005, inmate Patrick Boyle was found hanging in his cell.” ER9 ¶ 48. The complaint emphasized that “[d]espite the known prevalence of jail suicides, City of Reno Police Department failed to train its officers on their responsibilities to report information they have regarding suicide attempts by detainees.” Id. ¶ 49.
Similarly, on appeal to this Court, plaintiffs argued that Clustka’s death was the fifth of six suicide deaths in less than two years at the Washoe County Jail. Pl.-App. Opening Br. at 19. See also ER 392, 395-96. Officer Robertson testified that he had encountered between 500 and 1,000 suicidal individuals. Conn, 591 F.3d at 1103. Yet prior to Clustka’s death, the Reno Police Department had no written suicide policy. ER260-61; 27477. It was not until after Clustka’s death that the Department began to train its officers to respond to suicide attempts and threats. There are accordingly triable questions of fact as to whether the prior suicides were
9

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sufficient to provide the Reno Police Department “notice that a course of training is deficient in a particular respect.” Connick, 131 S. Ct. at 1360.
And that is how this Court understood the claim, too. Because of the past suicide deaths and the frequent encounters of law enforcement with suicidal individuals, the Court found that the “failure to train officers on how to identify and when to report suicide risks produces a ‘highly predictable consequence’: that police officers will fail to respond to serious risks of suicide and that constitutional violations will ensue.” Conn, 591 F.3d at 1103. The Court thus properly concluded that the several other suicides preceding Clustka’s create questions of fact for the jury.
To the extent that any question remains, the appropriate course would be to remand this case to the district court to permit plaintiffs the opportunity to further develop their municipal liability claim in light of Connick’s new guidance.
B. Even Absent A Pattern Of Past Events, A Failure To Train Claim Is Cognizable Here.
Although this case is decidedly not premised solely on a singleincident theory of liability, a pattern of past unconstitutional occurrences is unnecessary to demonstrate a municipality’s duty to properly train its officers to respond to suicide attempts and threats.
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Connick squarely permits municipal liability in circumstances where “the unconstitutional consequences of failing to train could be so patently obvious that a city could be liable under § 1983 without proof of a preexisting pattern of violations.” 131 S. Ct. at 1361. Citing the hypothetical introduced in City of Canton v. Harris, 489 U.S. 378, 390 (1989), the Court explained that “[g]iven the known frequency with which police attempt to arrest fleeing felons and the predictability that an officer lacking specific tools to handle that situation will violate citizens’ rights,” it is possible that “a city’s decision not to train the officers about constitutional limits on the use of deadly force could reflect the city’s deliberate indifference to the highly predictable consequence, namely, violations of constitutional rights.” Connick, 131 S. Ct. at 1361 (quotation omitted). Because there is “no reason to assume that police academy applicants are familiar with the constitutional constraints on the use of deadly force,” and “in the absence of training, there is no way for novice officers to obtain the knowledge they require,” “there is an obvious need for some form of legal training.” Ibid.
That analysis describes precisely the situation at issue here. First, it is a virtual certainty that a police department’s officers will encounter suicidal individuals. See Conn, 591 F.3d at 1103 (“[P]laintiffs have provided evidence that officers predictably face situations where they
11

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must assess and react to suicide risks in order to prevent grave harm to people under their protection.”). One defendant here testified that, over the course of his career, he had “encountered between 500 and 1,000 people threatening to kill themselves.” Ibid. Plaintiffs demonstrated that suicide is the leading cause of death in U.S. jails, making training critical. ER385.
Second, appropriate training is necessary for police officers to respond correctly to suicide attempts and threats. The individual officers here testified that they believed it appropriate for officers to fail to report suicide attempts and threats. Conn, 591 F.3d at 1103. But they are wrong; it is standard practice to require officers to report such incidents. Prison Health Services Director Gail Singletary, for example, testified that “[a]ll law enforcement officers should be aware of the signs and symptoms of suicide to communicate it and help avert it.” E167. Lieutenant Perry of the Washoe County Sheriff’s Office similarly testified that if a deputy hears an inmate announce an intention to commit suicide, the officer is “supposed to take action and tell a supervisor.” ER311. And Reno Police Deputy Chief James Johns testified that the officers should have reported the suicide attempt and threat. ER260 & 264. Because appropriate training by the city and proper policies could have avoided the constitutional errors by the in-
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dividual defendants, the “highly predictable consequence” of the City’s failure to act despite an “obvious” risk was that constitutional violations would result. Connick, 131 S. Ct. at 1361.
Third, notwithstanding the obvious risk of constitutional violations, there is no dispute that the City of Reno had no relevant training programs whatsoever at the time of Clustka’s death. Conn, 591 F.3d at 1103 (Plaintiffs “have provided substantial evidence in the form of deposition testimony that before Clustka’s suicide the City did, in fact, fail to train its officers in suicide prevention and the identification of suicide risks.”). See also ER186, 228, 260-61, 274-77. As there is “no reason to assume that police academy applicants are familiar with the constitutional constraints” with respect to deliberate indifference, and “in the absence of training, there is no way for the novice officers to obtain the legal knowledge they require” (Connick, 131 S. Ct. at 1361), it can come as little surprise that the individual officers misunderstood the relevant constitutional duties at stake here.
In sum, a jury could conclude on the basis of this record that the risk of police officers failing to appropriately address suicide attempts and threats is “obvious,” and that a city’s failure to train thus has the “highly predictable consequence” of a constitutional violation. See, e.g., Whitt v.
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Stephens County, 529 F.3d 278, 284 (5th Cir. 2008) (“In the specific context of prison suicide prevention, municipalities must provide custodial officials with minimal training to detect obvious medical needs of detainees with known, demonstrable, and serious medical disorders, but a failure to train custodial officials in screening procedures to detect latent suicidal tendencies does not rise to the level of a constitutional violation.” (quotation omitted)).
Connick is not to the contrary. The Supreme Court rejected municipal liability in Connick because substantially different facts there caused the Court to conclude that the risk a prosecutor would commit a Brady violation was not “obvious.” This was based on the extensive catalog of training that lawyers receive:
 Law school and licensing: “Before [attorneys] may enter the profession and receive a law license, all attorneys must graduate from law school or pass a substantive examination; attorneys in the vast majority of jurisdictions must do both.” Connick, 131 S. Ct. at 1361.
 Continuing legal education: “Most jurisdictions require attorneys to satisfy continuing-education requirements.” Id. at 1362.
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 Mentorship: “Attorneys who practice with other attorneys, such
as in district attorney’s offices, also train on the job as they learn
from more experienced attorneys.” Ibid.
 Character and fitness: “[A]ttorneys in all jurisdictions must sa-
tisfy character and fitness standards to receive a law license and
are personally subject to an ethical regime designed to reinforce
the profession’s standards.” Ibid.
The Court concluded that “[i]n light of this regime of legal training and
professional responsibility, recurring constitutional violations are not the
‘obvious consequence’ of failing to provide prosecutors with formal inhouse training about how to obey the law.” Id. at 1363.1
1 In concurrence, Justice Scalia suggested a yet narrower ground for Connick’s rejection of municipal liability: because the constitutional violation occurred due to the purposeful conduct of a “miscreant prosecutor” who “willful[ly] surpress[ed] evidence he believed to be exculpatory,” it “was almost certainly” not caused by the municipality’s “failure to give prosecutors specific training.” Connick, 131 S. Ct. at 1368 (Scalia, J., concurring). Such intentional conduct—“a bad-faith, knowing violation”—can “not possibly be attributed to lack of training.” Id. at 1369.
Here, plaintiffs do not assert that the officers engaged in intentional, affirmative conduct designed to harm Clustka. Rather, the officers failed to respond reasonably to her obvious medical needs because they—as the officers have testified—were unaware that it was their constitutional duty to do so. Conn, 591 F.3d at 1103. Unlike the miscreant actor for whom training is irrelevant, the failure of the City to adopt any training thus had the “highly predictable consequence” of permitting this constitutional violation. Connick, 131 S. Ct. at 1361 (quotation omitted).
15

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As the Supreme Court in Connick acknowledged, no such training regime exists for police officers. 131 S. Ct. at 1361. Police officers, unlike lawyers, depend on the municipality to train them with respect to their constitutional obligations. Ibid. And “legal training is what differentiates attorneys from average public employees.” Ibid. (alterations & quotation omitted). Indeed, in urging the Supreme Court to grant certiorari notwithstanding Connick, defendants themselves acknowledged that “this case arises in a distinct factual context involving police rather than lawyers.” Pet. Supp. Br., supra, at 1.
Police officers are not lawyers. Many police officers will see detainees attempt suicide or hear them threaten it, but absent appropriate training, officers will be unaware of their constitutional obligation to respond reasonably. The City of Reno’s failure to adequately train its officers thus had the obvious and predictable consequence of causing the constitutional violation here.
C. Municipal Liability Is Also Established By The City’s Unconstitutional Policies.
Finally, Connick has no bearing on the claim for municipal liability that turns on the City’s unconstitutional policies. In Connick, the plaintiff sought municipal liability because of both a failure to train and unconstitutional municipal policies. But the “jury rejected [the] claim that an un-
16

Case: 07-15572 05/20/2011 Page: 20 of 24 ID: 7760165 DktEntry: 53
constitutional office policy caused the Brady violation,” because of testimony that “office policy was to turn crime lab reports and other scientific evidence over to the defense.” 131 S. Ct. at 1357. Thus, when Connick reached the Supreme Court, no claim for an unconstitutional policy was at issue.
Not so here. Prior to Clustka’s death, the City of Reno lacked any suicide prevention policy; there was thus no policy that required officers to notify future custodians of suicide attempts or threats. Conn, 591 F.3d at 1104 (“The Conns assert—and appear to be correct—that there was no written policy on reporting suicide threats at the time of Clustka’s suicide.”). The fact that the City implemented a policy (forced upon it by Washoe County) after Clustka’s death underscores that none existed at the time of her suicide. Ibid. A jury could thus conclude, in the face of prior prison suicides and the obviousness of the risk to City officials, that the City of Reno’s “lack of affirmative policies or procedures * * * amount[ed] to deliberate indifference.” Ibid. (quotation omitted). The City’s deficient policy thus provides a municipal liability theory apart from its failure to train.
****
17

Case: 07-15572 05/20/2011 Page: 21 of 24 ID: 7760165 DktEntry: 53
Several disputed questions of fact remain in this case. With respect to individual liability, the parties dispute whether the officers had subjective knowledge of Clustka’s medical condition and, if they did, whether their conduct contributed to her suicide. If a jury concludes that the individual officers are liable, it must then consider whether the prior suicides put the City on notice of its deficient training or whether the risk of detainee suicide was sufficiently obvious that the City’s failure to adopt any training program was, in part, responsible for Clustka’s death. The jury must likewise consider whether the City’s failure to adopt a suicide prevention policy was deliberately indifferent. This case must proceed to trial, where a jury will resolve these factual questions.
18

Case: 07-15572 05/20/2011 Page: 22 of 24 ID: 7760165 DktEntry: 53

CONCLUSION For the foregoing reasons, the Court should reinstate its prior opinion, reversing the judgment of the district court.

DATE: May 20, 2011

Respectfully submitted,
/s/ Paul W. Hughes _ Paul W. Hughes Charles A. Rothfeld MAYER BROWN LLP 1999 K Street, N.W. Washington, D.C. 20006 (202) 263-3147 phughes@mayerbrown.com
Terri Keyser-Cooper 3300 Skyline Blvd., #274 Reno, NV 89509 (775) 337-0323 keysercooper@yahoo.com
Diane K. Vallancourt 849 Almar Ave., Ste. C403 Santa Cruz, CA 95060 (831) 458-3440
Counsel for Plaintiffs-Appellants

19

Case: 07-15572 05/20/2011 Page: 23 of 24 ID: 7760165 DktEntry: 53
CERTIFICATE OF COMPLIANCE WITH RULE 32(a) Pursuant to Fed. R. App. P. 32(a)(7)(C), the undersigned counsel for appellants certifies that this brief: (i) complies with the word limitation of this Court’s order of April 22, 2011, because it contains 3,794 words, including footnotes; and (ii) complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6).
/s/ Paul W. Hughes
1

Case: 07-15572 05/20/2011 Page: 24 of 24 ID: 7760165 DktEntry: 53
CERTIFICATE OF SERVICE I certify that on this 20th day of May 2011, I served the foregoing Appellants’ Supplemental Brief on all counsel via the Court’s ECF system.
/s/ Paul W. Hughes Paul W. Hughes

 </s> No. 09-1361

- -: -~ ' ~- ' : ~ ~- . . .. -~
JUN s- 2010 \

IN THE
~upreme <!Court of tbe Wniteb ~tate~

CITY OF RENO, RYAN ASHTON, AND DAVID ROBERTSON,
Petitioners, v.
CHARLA AND DUSTIN CONN,
Respondents.
On Petition for a Writ of Certiorari to the United States Court ofAppeals for the Ninth Circuit
BRIEF OF AMICI CURIAE INTERNATIONAL MUNICIPAL LAWYERS ASSOCIATION,
NATIONAL LEAGUE OF CITIES & NATIONAL ASSOCIATION OF COUNTIES IN SUPPORT OF PETITIONER

LARs ETZKORN

STEPHEN B. KINNAIRD

National League of Cities

COUNSEL OF RECORD

1301 Pennsylvania Ave., N.W. Washington, DC 20004-1763

TAMARAL. GRAHAM

etzkorn@nlc.org

MICHAEL W. STEVENS

Paul, Hastings, Janofsky &

JACQUEUNE J. BYERS
National Ass'n of Counties

WalkerLLP

25 Massachusetts Ave. NW 5th Fl. 875 15th Street, N.W.

Washington, DC 20001

Washington, DC 20005

jbyers@naco.org

(202) 551-1700

stephenkinnaird@paulhastings.com

Counsel for Amicus Curiae IMLA

WILSON-EPES PRINTING Co., INC. - {202) 789-0096 - WASHINGTON, D. C. 20002

Blank Page

1
TABLE OF CONTENTS
Page(s)
TABLE OF AUTHORITIES ......................................iii
STATEMENT OF INTEREST ................................... !
SUMMARY OF ARGUMENT .................................... 3
ARGUMENT ............................................................... 5
I. The Ninth Circuit's Decision Below Places An Insupportable Burden On Municipalities To Ensure That Law Enforcement Officers Are Equipped To Make Medical Diagnoses of Suicidal Tendencies ........................................................ 5
A. The Split Among The United States Courts Of Appeals Provides No Clear Guidance To Municipalities On The Kind Of Training To Provide To Law Enforcement Officers To Meet Legal Standards .................................... 5
B. This Court's Resolution Of The Question Presented Is Important In Light Of The Fiscal Challenges Municipalities Face ............................... 6
C. The Decision Below Represents Inappropriate Judicial Interference With The Effective Deployment Of Resources By Municipalities ........................................ 9

11
TABLE OF CONTENTS (continued)
Page(s)
II. The Ninth Circuit's Decision Below Threatens To Divert The Training Of Law Enforcement Officers, Thus Making Them Less Effective In Their Primary Duties ............................................................. 12
A. Burdening Law Enforcement Officers With Diagnosis Of Psychological Conditions Will Detract From Their Training In Their Primary Law Enforcement Duties................................................... 12
B. Burdening Law Enforcement Officers With Identification Of Suicidal Ideation Is Unnecessary When The Detainee Will Be Evaluated By Medical Professionals ........................................ 15
CONCLUSION ......................................................... 18

111
TABLE OF AUTHORITIES
Page(s)
CASES
Barber v. City of Salem, 953 F.2d 232 (6th Cir. 1992) ................................. 5
Burns v. City of Galveston, 905 F.2d 100 (5th Cir. 1990) ................................. 5
City of Canton v. Harris,
489 u.s. 378 (1989) ............................... 3, 4, 10, 15
Conn v. City of Reno, 591 F.3d 1081 (9th Cir. 2010) ............. 9, 15, 16, 17
Estate of Boncher v. Brown County, 272 F.3d 484 (7th Cir. 2001) ................................. 5
Horne v. Flores, 129 S. Ct. 2579 (2009) .................................. 10, 11
Manarite v. City of Springfield, 957 F.2d 953 (1st Cir. 1992) .................................. 5
Perdue v. Kenny A., 130 S. Ct. 1662 (2010) ................................... 10, 11
Popham v. City of Talladega, 908 F.2d 1561 (11th Cir. 1990) ............................. 5
Simmons v. City of Philadelphia, 947 F.2d 1042 (3d Cir. 1991) ................................. 6

IV
TABLE OF AUTHORITIES (continued) Page(s)
STATUTES
42 U.S.C. § 1983................................................ 2, 3, 10
RULES
Supreme Court Rule 37.6 ........................................... 1
REGULATIONS
Nev. Admin. Code§ 289.140 (2008) ................... 13, 14 Nev. Admin. Code§ 289.230 (2008) ......................... 14 Nev. Admin. Code§ 289.300 (2007) ......................... 13
OTHER AUTHORITIES
Alan Greenblatt, Local Squeeze: The Budget Pain Felt by State Lawmakers for the Past Two Years Has Made Its Way to Cities and Counties, National Conference of State Legislatures (May 2010) ....................................... 7

v
TABLE OF AUTHORITIES (continued)
Page(s)
BRIAN A. REAVES, BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, CENSUS OF STATE AND LOCAL LAW ENFORCEMENT
AGENCIES, 2004 (June 2007) ............................... 11
CHRISTOPHER W. HOENE & MICHAEL A.
PAGANO, NAT'L LEAGUE OF CITIES, CITY
FISCALCONDITIONS IN 2009 (SEPT. 2009) ........... 6, 7
CITY OF NEW YORK OFFICE OF MANAGEMENT AND BUDGET, FINANCIAL PLAN SUMMARY
FISCAL YEARS 2010-2014 (Jan. 28, 2010) .............. 8
CITY OF RENO, NEVADA 2009/10 BUDGET III (May 22, 2009) ....................................................... 8
Jacqueline J. Byers, How Are Counties Doing? An Economic Survey, National Association of Counties (Nov. 2009) ..................................... 7, 8
Kari Petrie, Tighter Budgets Make Police Training an Issue, ST. CLOUD TIMES, Mar. 8, 2010 .................................................................... 9
Kevin Johnson, Economy Limiting Services of Police, USA TODAY, May 18, 2009 ........................ 8
SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS
ONLINE (2006) ...................................................... 11

Vl
TABLE OF AUTHORITIES (continued)
Page(s)
VIRGINIA DEP'T OF CRIMINAL JUSTICE SERVICES, PERFORMANCE OUTCOMES, TRAINING OBJECTIVES, CRITERIA, AND LESSON PLAN GUIDES FOR COMPUlSORY MINIMUM TRAINING FOR LAW ENFORCEMENT OFFICERS
(2009) ................................................................... 14

STATEMENT OF INTERESTl
Amicus curiae the International Municipal Lawyers Association ("IMLA") is a non-profit, nonpartisan, professional organization consisting of more than 3,500 members that has been serving local government attorneys since 1935. The membership is comprised of local government entities, including cities and counties, and subdivisions thereof, as represented by their chief legal officers; state municipal leagues; and individual attorneys who represent municipalities, counties, and other local government entities. Since its establishment, IMLA has advocated for the rights and privileges of local governments and the attorneys who represent them. IMLA has appeared as amicus curiae on behalf of its members before the United States Supreme Court, in the United States Courts of Appeals, and in state supreme and appellate courts.
Amicus curiae the National League of Cities ("NLC") is the oldest and largest organization representing municipal governments throughout the United States. Its mission is to strengthen and promote cities as centers of opportunity, leadership, and governance. Working in partnership with 49 State municipal leagues, NLC serves as a national
1 Pursuant to Supreme Court Rule 37.6, counsel for amici certify that no counsel for a party authored this brief in whole or in part, and no counsel or party made a monetary contribution intended to fund the preparation or submission of this brief. No person other than amici made such a monetary contribution. Letters from the parties consenting to the filing of this amicus brief have been filed with the Clerk of the Court.

2
advocate for the more than 19,000 cities, villages, and towns it represents.
Amicus curiae the National Association of Counties ("NACo") is the only national organization that represents county governments in the United States. Founded in 1935, NACo provides essential services to the nation's 3,068 counties. NACo advances issues with a unified voice before the federal government, improves the public's understanding of county government, and assists counties in finding and sharing innovative solutions through education and research.
In their petition for certiorari, Petitioners have demonstrated in detail the error of the Ninth Circuit's ruling and analyzed the conflicts of authority justifying this Court's intervention. Pet. 17-39. Amici agree with Petitioners that the circuit split regarding the purported duty of municipalities to train law enforcement officers to diagnose suicidal tendencies is ripe for resolution by the Court. Petitioners are also correct in their legal analysis of the 42 U.S.C. § 1983 deliberate indifference standard: diagnosing suicidal ideation is not within the scope of a law enforcement officer's regular and foreseeable duties, and it was not deliberate indifference on the part of the city of Reno to determine that licensed medical professionals should be the ones to diagnose a detainee's tendency to commit suicide.
IMLA, NLC, and NACo offer this brief as amici curiae to emphasize to the Court the importance of its granting the requested writ and reversing the erroneous ruling of the Ninth Circuit for three

3
reasons: (1) the Court must resolve the split among the circuits to give clearer guidance to municipalities on the constitutional requirements of lawenforcement training; (2) the Ninth Circuit's ruling should not be allowed to stand, because the resultant broadening of City of Canton v. Harris, 489 U.S. 378 (1989), would place a grave economic burden on struggling municipalities and impose the will of the federal courts over decisions best made by democratically elected state and local officials; and (3) broadening Harris to require training of law enforcement officers to diagnose suicidal tendencies will divert training resources, detract from the officers' primary duties, and stray into areas that are and should be the province of medical professionals.
SUMMARY OF ARGUMENT
In the decision below, the Ninth Circuit, over the strong dissent of seven of its judges, has joined the minority side of a five-to-two inter-circuit split regarding whether municipalities may be held liable under 42 U.S.C. § 1983 for failure to train law enforcement officers to diagnose the suicidal tendencies of detainees. By solidifying that split in authority, the Ninth Circuit has further complicated the legal landscape and made it more difficult for municipalities to know how to proceed in training their law enforcement officers. Amici ask the Court to grant certiorari in this case to resolve the split and thus provide definitive guidance to municipalities in their efforts to establish constitutionally sufficient training programs.

4
Further, the Ninth Circuit's decision to expand the reach of Harris places an insupportable burden on municipalities to provide additional and expensive specialized training to their law enforcement officers. The Court should not constitutionalize a suicide-risk training requirement during these difficult economic times, when municipalities are facing significant budget shortfalls and the restriction of already stretched resources. One of the consequences of the Ninth Circuit's ruling below is to force municipalities to allocate their limited funds as the courts, rather than democratically elected local officials, see fit.
Finally, the ruling below will force municipalities to divert the training of law enforcement officers, rendering them less effective in the most important aspects of their duties. The city of Reno and most other municipalities have medical screening procedures already in place and staffed by personnel properly trained to diagnose suicidal ideation. Requiring law enforcement officers to add psychiatric diagnoses to their more traditional duties of protecting their communities and enforcing the law will only serve to undermine the services those officers have been hired to provide.

5
ARGUMENT
I. The Ninth Circuit's Decision Below Places An Insupportable Burden On Municipalities To Ensure That Law Enforcement Officers Are Equipped To Make Medical Diagnoses of Suicidal Tendencies.
A. The Split Among The United States Courts Of Appeals Provides No Clear Guidance To Municipalities On The Kind Of Training To Provide To Law Enforcement Officers To Meet Legal Standards.
As Petitioners have pointed out, the United States Courts of Appeals are divided over the issue of whether law enforcement officers must be trained to diagnose suicidal ideation in detainees. The First, Fifth, Sixth, Seventh, and Eleventh Circuits have all ruled that it is not deliberate indifference for a police officer not to diagnose and report the suicidal tendencies of detainees. See Estate of Boncher v. Brown County, 272 F.3d 484, 485-86 (7th Cir. 2001); Manarite v. City of Springfield, 957 F.2d 953, 959-60 (1st Cir. 1992); Barber v. City of Salem, 953 F.2d 232, 240 (6th Cir. 1992); Popham v. City of Talladega, 908 F.2d 1561, 1564 (11th Cir. 1990); Burns v. City of Galveston, 905 F.2d 100, 104 (5th Cir. 1990). In each of these cases, like in the case below, officers were faced with intoxicated detainees who ultimately committed suicide, but each court concluded that the officers' constitutional duties did not include diagnosing the suicidal tendencies of the detainees.

6
The Ninth Circuit's decision to join the minority view of the Third Circuit only widens and solidifies the split. See Simmons v. City of Philadelphia, 947 F.2d 1042, 1049 (3d Cir. 1991). The ruling throws municipalities across the country into confusion regarding the constitutional requirements for training their law enforcement officers. The split in authority makes it impossible for municipalities to know precisely how expansive to make their lawenforcement training and just how much expanding the training will cost them. Amici ask this Court to grant certiorari to resolve this issue regarding police training and provide definitive guidance to state and local governments.
B. This Court's Resolution Of The Question Presented Is Important In Light Of The Fiscal Challenges Municipalities Face.
This Court's resolution of the question presented is particularly critical given the financial straits in which many municipalities operate. The global economic downturn since 2008 has caused especially significant financial harm to local governments. Eighty-eight percent of city finance officers reported that in 2009 they were less able to meet their fiscal needs than they were in 2008, as sales tax and general fund revenues fall. See CHRISTOPHER W. HOENE & MICHAEL A. PAGANO, NAT'L LEAGUE OF CITIES, CITY FISCAL CONDITIONS IN 2009, 1, 3 (Sept. 2009).
More troubling for local governments is the nearly unprecedented decline in the real-estate market.

7

Local governments are largely dependent on property tax revenue. Because of the delay in appraised values leading to reduced tax collections, the full extent of the bursting of the real-estate bubble has not yet been felt and may cause even greater economic havoc in 2010, 2011, and 2012. Id. at 3.

Large cities such as Chicago and San Francisco are facing budget shortfalls in excess of $500 million, while smaller cities such as Bossier City, Louisiana, have thirteen-percent shortfalls and face cutting equivalent percentages of city positions. Alan Greenblatt, Local Squeeze: The Budget Pain Felt by State Lawmakers for the Past Two Years Has Made Its Way to Cities and Counties, National Conference of State Legislatures (May 2010), available at http://www.ncsl.org/?tabid=20180.

Amicus NACo conducted a survey of counties to

gauge the continuing impact of the economic

downturn on a sample of counties across the country.

See Jacqueline J. Byers, How Are Counties Doing? An

Economic Survey, National Association of Counties

(Nov.

2009),

available

at

http://www.naco.org/Template.cfm?Section=Surveys&

template=/ContentManagement/ContentDisplay.cfm

&ContentiD=32326. According to the survey, fifty-

six percent of counties report starting their fiscal

years with up to $10 million projected shortfalls. Id.

at 3. Forty-seven percent stated that their shortfall

increased after the beginning of the fiscal year, with

those additional shortfalls nearing $10 million. Id.

These shortfalls have been produced by a decrease in

the traditional revenue streams from property taxes,

state and federal funding, and sales taxes. Eighty-

8
two percent of these counties anticipate the shortfalls extending into the next fiscal year. Id. Counties, like cities, are dealing with the economic turmoil by slashing their budgets and shuffling their resources.
Although local governments often cut police and public safety funding only as a last resort, the current economic difficulties have forced them to make such cuts. In Pennsylvania, nineteen suburban and rural police agencies closed over a fifteen-month period ending in May 2009, and seven others cut patrols; in Minnesota, nine small police agencies closed in a fivemonth period. Kevin Johnson, Economy Limiting Services of Police, USA TODAY, May 18, 2009, at 01A. The problem is not limited to small or rural communities: if adopted, the New York Governor's 2011 proposed state budget cuts would lead to the layoffs of over 3,000 New York City police officers. CITY OF NEW YORK OFFICE OF MANAGEMENT AND BUDGET, FINANCIAL PLAN SUMMARY FISCAL YEARS 2010-2014 23 (Jan. 28, 2010), available at http://www .nyc.govlhtmVomb/downloads/pdflsum 1_1 0 .pdf.
Police-training budgets in particular are facing drastic cuts. Even the city of Reno cut its policetraining budget by more than twenty percent between fiscal years 2008/2009 and 2009/2010, from $1.69 million to $1.35 million. CITY OF RENO, NEVADA 2009/10 BUDGET lll-245 (May 22, 2009), available at http://www.reno.gov/index.aspx?page=171. Reno is not alone in the need to reduce police-training budgets: the state of Minnesota has decreased its police-training reimbursement rate from $423 per officer per year in 2003 to $341 per officer per year in

9
2010, a reduction of almost twenty percent, not taking into account inflation. Kari Petrie, Tighter Budgets Make Police Training an Issue, ST. CLOUD TIMES, Mar. 8, 2010, available at http:/lminnesota.publicradio.org/display/web/2010/03/ 08/police-training. Local law enforcement agencies are already stretched thin. Before municipalities allocate scarce resources to comply with the Ninth Circuit's erroneous ruling, this Court should resolve the conflict in authority.
C. The Decision Below Represents Inappropriate Judicial Interference With The Effective Deployment Of Resources By Municipalities.
In his dissent to the opinion below, Chief Judge Kozinski warns that the majority opinion represents "unprecedented judicial interference in our local institutions." Conn v. City of Reno, 591 F.3d 1081, 1085 (9th Cir. 2010) (Kozinski, J., dissenting). Deployment of limited local resources is an undertaking best conducted by the people closest to and with the most knowledge of those resources and the needs of the local community. Kozinski's dissent recognizes that "any redefinition of the role of the state should occur under the superv1s1on of democratically elected officials, not unaccountable federal judges." !d.
This Court, in the opinion that the Ninth Circuit seeks to widen with its ruling in Conn, cautioned against the danger presented by increased judicial scrutiny over the training programs of law enforcement officers to the autonomy of

10
municipalities, as well as to the principles of federalism. The Court in Harris narrowed its holding to avoid retrospective judicial evaluation of policetraining programs precisely because "[i]t would also engage the federal courts in an endless exercise of second-guessing municipal employee-training programs." Harris, 489 U.S. at 392. This kind of second-guessing "the federal courts are ill suited to undertake, as well as [being] one that would implicate serious questions of federalism." Id.
More recently, this Court has expressed sustained concern over the financial impact of federal requirements imposed upon state and local governments, precisely the kind of impact that will result from the Ninth Circuit's ruling. In Horne v. Flores, the Court acknowledged that "[s]tates and local governments have limited funds. When a federal court orders that money be appropriated for one program, the effect is often to take funds away from other important programs." 129 S. Ct. 2579, 2594 (2009). While Horne involved federal requirements for state education spending, the Court has articulated the same concerns in other contexts, such as when state and local governments are ordered to pay exorbitant awards of attorneys' fees pursuant to§ 1983litigation. See Perdue v. Kenny A., 130 S. Ct. 1662, 1677 (2010) ("[S]tate and local governments have limited budgets, [and] money that is used to pay attorneys' fees is money that cannot be used for programs that provide vital public services.").
In the instant case, the Ninth Circuit's ruling, if affirmed, would impose substantial financial burdens

11

on already cash-strapped municipalities. As of 2004,

there were almost 780,000 sworn personnel with

general arrest powers employed by state and local

law enforcement agencies, and the vast majority of

these personnel were employed by local police

departments or sheriff departments. BRIAN A.

REAVES, BUREAU OF JUSTICE STATISTICS BULLETIN,

U.S. DEP'T OF JUSTICE, CENSUS OF STATE AND LOCAL

LAW ENFORCEMENT AGENCIES, 2004 1, 2 (June 2007),

available

at

http://bjs.ojp.usdoj.gov/content/pub/pdflcsllea04.pdf. 2

Training all of these officers to diagnose suicidal

ideation would impose huge costs on municipalities

that would not be borne by the federal government

despite being mandated by a federal court. As this

Court recognized in Horne and Kenny A., any such

training requirement would only mean that other

important legal programs would receive less funding.

The Court should grant certiorari to resolve this issue

and prevent the imposition of unnecessary police-

training costs on and unwarranted judicial

interference with local governments.

22 Data from 2006 indicates a total of 919,274 total officers

(685,611 of them with general arrest powers), 90% of whom were

employed by local police and sheriff departments. See

SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS ONLINE (2006)

available

at

http://www .albany.edu/sourcebooklpdf/t 1262006.pdf.

12
II. The Ninth Circuit's Decision Below Threatens To Divert The Training Of Law Enforcement Officers, Thus Making Them Less Effective In Their Primary Duties.
A. Burdening Law Enforcement Officers With Diagnosis Of Psychological Conditions Will Detract From Their Training In Their Primary Law Enforcement Duties.
One of the more troubling consequences of the Ninth Circuit's ruling below is the burden it will place upon law enforcement officers as they train to serve their role as protectors of our communities. Most states have Peace Officer Standards and Training ("POST'') organizations that establish requirements for the training of law enforcement officers. The POSTs set the curricula for the mandatory minimum basic training that usually takes place in academies for new officers and for the continuing in-service education requirements that officers must satisfy throughout their careers. 3

3 Nearly all states have websites devoted to their POSTs, where

training standards can be reviewed.

See, e.g. ,

http://www.azpost.state.az.usl;

http://www.post.ca.gov/;

http://www .gapost.org/;

http://www . i d a h o - p o s t.org/;

http://www .cole.state .la. us/programs/post.asp;

http://www . d p s . s t a t e .ron. u s / n e w p o s t / p o s t h o m e .a s p ;

http://post.state.nv.us/;

h t t p ://publicsafety.u t a h . g o v / p o s t / i n d e x .h t m l ;

http ://attorneygeneral.state.wy. us/post.htm.

13
In Nevada, in particular, the minimum standards for all law enforcement officers are dictated by state regulation. See Nev. Admin. Code § 289.300 (2007). Basic training for law enforcement officials includes 480 hours of mandatory training in several subject areas. Nev. Admin. Code § 289.140 (2008). Of Law and Legal Procedures, officers-in-training must learn civil liability, constitutional law, crimes against persons, crimes against property, juvenile law, laws governing coroners, laws relating to arrests, laws relating to drugs, miscellaneous crimes, probable cause, rights of victims, search and seizure, traffic laws, and use of force. Id. Officers must also study Patrol Operations and Investigations, including issues pertaining to the abuse of elderly persons, accident investigations, basic patrol procedures, child abuse and sexual abuse of children, domestic abuse and stalking, investigation of crime scenes, collection and preservation of evidence, fingerprinting, principles of investigation, techniques of interviewing and interrogation, DWI detection and standardized field sobriety testing, and unknown-risk and highrisk vehicle stops. Id.
The third general area of study is Performance Skills, including health, fitness and wellness, interpersonal communications, tactics for the arrest and control of suspects, methods for arrest, the use of less-than-lethal weapons, operation of emergency vehicles, provision of emergency first aid and CPR, searching of buildings, training in the use of firearms, and writing of reports. Id. Finally, basic training also includes The Functions of a Police Officer, specifically care of persons in custody, community policing, counter-terrorism and weapons of mass

14

destruction, courtroom demeanor, the g~vmg of testimony, cns1s intervention, ethics in law enforcement, handling of persons who are mentally ill, history and principles of law enforcement, management of stress, National Crime Information Center procedures, survival of peace officers, systems of criminal justice, and the realities of law enforcement. Id. Basic training concludes with the requirement to pass both the state police certification examination and a physical fitness examination. Id.

After an officer in Nevada has completed basic training and has been certified by the state, he or she must annually thereafter complete twenty-four hours of additional training. Nev. Admin. Code § 289.230 (2008). Part of this additional training includes biannual firearms and other weapons certification, defensive tactics, handling of suspects, and reviewing the policies of the officer's employing agency. Id.

Other states follow similar curricula and require a

similar number of hours of training. See, e.g.,

VIRGINIA DEP'T OF CRIMINAL JUSTICE SERVICES,

PERFORMANCE OUTCOMES, TRAINING OBJECTIVES,

CRITERIA, AND LESSON PIAN GUIDES FOR COMPULSORY

MINIMUM TRAINING FOR LAW ENFORCEMENT OFFICERS,

(2009),

available

at

http://www.dcjs.virginia.gov/standardsTraining/comp

ulsoryMinimumTraining/officers.cfm. At a minimum,

law enforcement officers throughout the country

must be trained in the substantive laws they are

enforcing, techniques for investigation and solving

crime, standards for handling suspects and detainees,

use of weapons and other types of force, interpersonal

15
and community interaction, and the constitutional limits to their actions, among other subjects.
To add another level of training as advanced and specialized as the psychiatric diagnosis of mental illness or suicidal ideation would detract from the training that allows them to serve and protect their communities in a safe, professional, and effective manner.
This Court recognized in Harris the multiple areas of training law enforcement officers must master to serve their important role in society. Harris considered cases that addressed police training in just a few areas, including the proper force for arrests, detention, interrogation, obtaining and executing warrants, and searching detainees. See Harris, 489 U.S. at 383 n.3, 387 n.6. The Court should heed Chief Judge Kozinski's warning that "[a]s police devote time and energy to judiciallyimposed obligations, they will have less time and attention to devote to preventing crime, protecting their own safety, and avoiding other types of constitutional violations." Conn, 591 F.3d at 1089 (Kozinski, J., dissenting).
B. Burdening Law Enforcement Officers With Identification Of Suicidal Ideation Is Unnecessary When The Detainee Will Be Evaluated By Medical Professionals.
Chief Judge Kozinski's dissent to the Ninth Circuit's ruling points out the danger of the kind of diversion of resources that amici wish this Court to

16
prevent. If the Ninth Circuit's ruling is allowed to stand, "Judges will henceforth micromanage the police, who in turn will serve as mental health professionals." Id. at 1085 (Kozinski, J., dissenting). Mental health professionals are specially trained and licensed to diagnose and treat the kinds of psychological disorders that lead to suicide attempts. Although a police officer or layperson may at times be able to recognize that a person is at risk to attempt suicide, this Court should not make it a law enforcement officer's constitutional duty to make a diagnosis best left to licensed health-care professionals.
The decision below details that the Reno Police Department and the Washoe County Jail both had systems in place to allow detainees to receive medical attention when needed and to require each detainee to receive a medical screening by professionals trained in recognizing and addressing psychological symptoms that might lead to suicide. Id. at 10911093. Chief Judge Kozinski provided further detail regarding the multiple medical screenings Brenda Clutska herself received from Reno and Washoe County medical professionals:
Right before her arrest, Clutska was evaluated by a team of medics. At intake, she was examined by a nurse who received annual training in suicide prevention. She was then held in a detoxification cell that was regularly monitored by jail staff and nurses. Mter discharge, she was arrested a second time and brought

17
by police to an emergency room, where she was seen by a physician. And when she was arrested a third time, she was booked into the mental health unit of the jail, which is managed by a licensed social worker and staffed around the clock.
Id. at 1087 (Kozinski, J., dissenting). As both the majority and dissenting opinions make apparent, Reno and Washoe County had many procedures in place to provide the grossly intoxicated Clutska with medical and psychiatric screenings warranted by her behavior and condition. Having more extremely specialized training for its law enforcement officers would not have prevented the unfortunate outcome in this case, would serve only to diminish the officers' training in the more crucial aspects of their duty, and most importantly, is not required by the Constitution.

18
CONCLUSION
For all the foregoing reasons, the petition for writ of certiorari should be granted.

Respectfully submitted,

LARS ETZKORN
National League of Cities 1301 Pennsylvania Ave., N.W. Washington, DC 20004 (202) 626-3173
etzkorn@nlc.org
JACQUELINE J. BYERS EDWARD FERGUSON
National Ass'n of Counties
25 Massachusetts Ave., N.W., 5th Fl.
Washington, DC 20001 (202) 202-942-4285

STEPHEN B. KINNAIRD
COUNSEL OF RECORD TAMARA L. GRAHAM
MICHAEL W. STEVENS Paul, Hastings, Janofsky &
Walker LLP 875 15th Street, N.W. Washington, DC 20005 (202) 551-1700 stephenkinnaird@paulhastings.c om
CHARLES W. THOMPSON, JR. Int'l Municipal Lawyers Ass'n 7910 Woodmont Ave, Suite 1440 Bethesda, MD 20814 (202) 466-5424

jbyers@naco.org eferguso@naco.org

CThompson@imla.org

Counsel for Amici

June 9, 2010

 </s> AUG 9- 2D1O
No. 09-1361
3Ju tbe ~upreme ((ourt of tbe mUlteb ~tate~

CITY OF RENO, RYAN ASHTON, AND DAVID ROBERTSON,
Petitioners, v.
CHARLA CONN AND DUSTIN CONN,
Respondents.
On Petition for a Writ of Certiorari to the United States Court of Appeals for the
Ninth Circuit
BRIEF IN OPPOSITION

TERRI KEYSER-COOPER
Counsel of Record Law Office of Terri Keyser-
Cooper 3365 Southampton Drive Reno, NV 89509 (775) 337-0323 keysercooper@yahoo.com

CHARLES A. ROTHFELD ANDREW J. PINCUS PAUL W. HUGHES MICHAEL B. KIMBERLY
Mayer Brown LLP 1999 K Street, NW Washington, DC 20006 (202) 263-3000

DIANE K. VAILLANCOURT Law Office of Diane K. Vaillancourt 849 Almar Ave., Ste. C403 Santa Cruz, CA 95060 (831) 458-3440

Counsel for Respondents

Blank Page

1
QUESTIONS PRESENTED
It is settled that the States have a duty not to deny prisoners necessary care in the face of serious medical needs. Estelle v. Gamble, 429 U.S. 97, 102-03 (1976). A state official who has actual knowledge that a detainee is at imminent risk of serious harm and does nothing thus violates the detainee's constitutional rights. Farmer v. Brennan, 511 U.S. 825, 828 (1994). The lowe'r courts have uniformly held that an imminent risk of suicide constitutes a serious medical need sufficient to trigger a duty to respond by, for example, reporting the risk so that detainee may be placed on suicide watch. See, e.g., Cavalieri v. Shepard, 321 F.3d 616,622 (7th Cir. 2003); Turney v. Waterbury, 375 F.3d 756, 761 (8th Cir. 2004); Snow v. City of Citronelle, 420 F.3d 1262, 1270 (11th Cir. 2005).
The questions presented are:
(1) Whether a custodial officer has actual knowledge that a detainee is at imminent risk of suicide sufficient to trigger a duty to respond - when the officer witnesses the detainee both threaten and attempt suicide in the officer's presence.
(2) Whether, when an officer has violated a detainee's constitutional rights by failing to respond reasonably to a known suicide risk, a municipality may be held liable if the constitutional violation resulted from a municipal policy or failure to train.

11
TABLE OF CONTENTS
Page QUESTIONS PRESENTED ....................................... i TABLE OF AUTHORITIES...................................... iii STATEMENT ............................................................. 1
A. Factual Background ........................................ 2 B. Procedural Posture .......................................... 7 REASONS FOR DENYING THE PETITION ......... 11 I. PETITIONERS WAIVED THE QUESTIONS PRESENTED............................... 13 II. THE INDIVIDUAL LIABILITY HOLDING DOES NOT WARRANT REVIEW..................... 16 A. There Is No Circuit Conflict Concerning
Individual Liability....................................... 17 B. The Ninth Circuit's Decision
Concerning Individual Liability Is Correct........................................................... 22 III.THE MUNICIPAL LIABILITY HOLDING DOES NOT WARRANT REVIEW..................... 25 A. There Is No Conflict Concerning Municipal Liability........................................ 25 B. The Ninth Circuit's Decision Concerning Municipal Liability Is Correct........................................................... 32 CONCLUSION ......................................................... 34

HI
TABLE OF AUTHORITIES
Page(s)
CASES Barber v. City of Salem,
953 F.2d 232 (6th Cir. 1992) .................... 27, 28, 31 Bd. of County Comm'rs v. Brown,
520 U.S. 397 (1997) ..............................................30
Boncher ex rel. Boncher v. Brown County, 272 F.3d 484 (7th Cir. 2001) ................ 6, 29, 30, 31
Burns v. City of Galveston, 905 F.2d 100 (5th Cir. 1990) .................... 25, 26, 31
Cavalieri v. Shepard, 321 F.3d 616 (7th Cir. 2003) ................................24
City of Canton v. Harris, 489 U.S. 378 (1989) .................................. 25, 32, 33
City of Los Angeles v. Heller, 475 U.S. 796 (1986) .............................................. 12
Conn v. City of Reno, 591 F.3d 1081 (9th Cir. 2010) ........................ 21, 31
Cooper ex rel. Estate of Morton v. County of Washtenaw, 222 Fed. App'x 459 (6th Cir. 2007) ......................28
Coscia ex rei. Estate of Coscia v. Town of Pembroke, _ F. Supp. 2d _, 2010 WL 2223685 (June 4, 2010) .......................................................29
Davidson v. Cannon, 474 U.S. 344 (1986) ..............................................22
Elliott v. Cheshire County, 940 F.2d 7 (1st Cir. 1991) .............................. 17, 18

IV
TABLE OF AUTHORITIES - continued
Page(s)
Estelle v. Gamble, 429 U.S. 97 (1976) .......................................... 16, 33
Farmer v. Brennan, 511 U.S. 825 (1994) ...................................... passim
Freedman v. City of Allentown, 853 F.2d 1111 (3d Cir. 1988) ......................... 18, 19
Hare v. City of Corinth, 74 F.3d 633 (5th Cir. 1996) ..................................26
Jutzi-Johnson v. United States, 263 F.3d 753 (7th Cir. 2001) ..................................6
Manarite v. City of Springfield, 957 F.2d 953 (1st Cir. 1992) .............. 18, 28, 29, 31
Popham v. City of Talladega, 908 F.2d 1561 (11th Cir. 1990) ................ 27, 28, 31
Simmons v. City of Philadelphia, 947 F.2d 1042 (3d Cir. 1991) ...............................31
Simmons v. Navajo County, _ F.3d _, 2010 WL 2509181 (9th Cir. June 23, 2010) .............................................. passim
Snow v. City of Citronelle, 420 F.3d 1262 (11th Cir. 2005) ............................ 24
Turney v. Waterbury, 375 F.3d 756 (8th Cir. 2004) ................................24
Whitt v. Stephens County, 529 F.3d 278 (5th Cir. 2008) ................................27
Williams v. Borough of West Chester, 891 F.2d 458 (3d Cir. 1990) ........................... 19, 20

v
TABLE OF AUTHORITIES - continued
Page(s)
Woodward v. Corr. Med. Servo of Illinois, Inc., 368 F.3d 917 (7th Cir. 2004) .......................... 30, 31
Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1 (1993) .................................................. 16
STATUTES, RULES AND REGULATIONS 42 U.S.C. § 1983 .................................................... 7, 27
MISCELLANEOUS Lindsay M. Hayes et al., National Study of
Jail Suicides: Seven Years Later (National Center on Institutions and Alternatives) (1988) ...................................................................... 6 Large Urban Jail System with an Established Suicide Prevention Program, JAIL SUICIDEIMENTAL HEALTH UPDATE, Vol. 11, No. 3 (Fall 2002) ...........................................................5

Blank Page

STATEMENT
Mischaracterizing the holding below, petitioners present questions that holding does not raise. They repeatedly assert that the court of appeals required law-enforcement officers to "diagnose and report detainees' symptoms of suicidal tendencies" and insist that, as a result, municipalities in the Ninth Circuit must now train officers to act as psychiatrists able to "diagnose and report" such symptoms. Pet. i. On at least 35 occasions, petitioners erroneously suggest that the court of appeals imposed a duty to "diagnose."
But this case is not about diagnosis; it is about whether custodial officers who personally witness a detainee threaten and attempt suicide in their presence have a duty to respond reasonably.
Here, while transporting Brenda Clustka to the local jail, the petitioner police officers saw Clustka attempt suicide by choking herself with a seatbelt in the back of the police wagon, and heard Clustka scream that she wanted to kill herself. The court below found, based on the cumulative evidence, that a jury could conclude, first, that the officers were subjectively aware of a serious and imminent risk Clustka would commit suicide and, second, that they acted with deliberate indifference by failing to inform subsequent custodians what they saw and heard.
This holding is neither novel nor incorrect. Indeed, every circuit to consider this issue has reached the same result. In every prison suicide case, the operative question is whether there is evidence in the record from which a jury could conclude the custodian had actual knowledge that the detainee was an imminent suicide risk by virtue of, for example,

2
witnessing recent suicide attempts or threats. If an officer has actual knowledge but fails to respond reasonably, a claim may lie. No court disagrees with the Ninth Circuit's view.
Not only is review therefore unnecessary on its face but, in the court below, petitioners waived the very arguments they now present. There, petitioners argued only, as a matter of fact, that they lacked actual knowledge of Clustka's serious medical need. They conceded that, if they had such knowledge, they failed to respond reasonably. Petitioners now sing a different tune: Their petition turns on the newly minted argument that they lack any duty to report suicide attempts because police officers have no obligation to "diagnose" suicidal tendencies. This novel argument, raised here for the first time, has been waived.
Nor is review warranted of the lower court's holding that respondents presented sufficient evidence to create triable questions of fact regarding municipal liability. The court properly applied settled law to the particular factual circumstances before it, and there is no reason to believe that other circuits would have held otherwise. The petition accordingly should be denied.
A. Factual Background
1. On March 19, 2005, Clustka was arrested for domestic battery of her mother. Pet. App. 18. Clustka's behavior and words suggested she was suicidal; prison officials accordingly placed her on suicide watch. Clustka was released on April 21, 2005. Id. at 18-19.
A few days later, on April 25, 2005, Clustka again became suicidal and was taken (at family

3
members' direction) to Washoe Medical Center, then transferred to Nevada Mental Health Institute where she was involuntarily committed. Clustka was medically evaluated and discharged the next morning. Pet. App. 19.
A few hours later, in the early afternoon of April 26, 2005, petitioners Ashton and Robertson responded to a 911 call that Clustka was passed out on a sidewalk. Pet. App. 19. When the officers arrived, Clustka was intoxicated but not stumbling, falling down, or causing a disturbance. Appellants' Excerpts of Records ("ER") 218. Ashton - who participated in Clustka's March 19 arrest - recognized her and knew of her mental health problems. A warrants check indicated Clustka was known to have "violent tendencies, [that she was] known to abuse drugs, [was an] alcoholic [and had] other mental health problems." Pet. App. 19-20 (internal quotation marks omitted). Petitioners decided to take her into civil protective custody. Ibid.
When petitioners told Clustka they were taking her to jail, she became agitated and uncooperative. To induce Clustka to enter the paddy wagon, Robertson told her, falsely, they were taking her home. Pet. App. 20. Petitioners did not handcuff Clustka. Ibid. En route to the jail, Ashton saw, via the vehicle's video monitor, that Clustka had unlatched her seatbelt and was moving about. Id. at 20-21. He asked Robertson if they should stop to secure Clustka, but Robertson declined. ER 151.
When Clustka saw they were approaching the jail and not her home, she became extremely agitated. Ashton watched Clustka wrap a seatbelt around her throat. He told Robertson she was "trying to choke herself." ER 149; Pet. App. 20-21. The offic-

4
ers stopped the vehicle. It took both officers to "remove [Clustka's] clenched fists from the seatbelt" and unwind it from around her neck. ER 159,195.
Clustka screamed repeatedly, "Kill me or I'll kill myself." ER 150, 195; Pet. App. 21. When they arrived at the jail sally port, Clustka screamed again she "wanted to die." ER 215. The evidence indicates both officers believed she was not "joking" (ER 235, 350; Pet. App. 21), acknowledging she was "emotionally distraught" (ER 195) and "might be seriously mentally ill" (ER 235).
Ashton, who had been a police officer for only seven months, asked Robertson - an eighteen-year veteran - if they should report Clustka's suicide attempt and suicide threats. Robertson answered, "No." The officers rationalized that the threat had not been serious because Clustka could not have killed herself, as the seatbelt would have lost tension after she passed out. ER 151.
As the court below noted, however, the evidence suggests a different explanation for petitioners' failure to report Clustka's suicide attempt and threats: "Both officers believed that failing to handcuff Clustka while transporting her, and failing to fasten her into her seat belt once she unbuckled it, were violations of policy. Had they reported the incident, they would have had to report their own misconduct." Pet. App. 33; see also id. at 33 n.4.
Petitioners did not alert subsequent custodians to Clustka's suicide attempt and threats. Pet. App. 21. Four hours after being held at the Washoe County Jail, Clustka was released without further inquiry. Id. at 22. That evening, she was again taken

5
to the emergency room, observed for gross intoxication only, and subsequently released. Ibid.
The next day, on April 27,2005, Clustka violated a restraining order by returning to the home she had shared with her mother, was arrested, and was again taken to the jail. Pet. App. 22. The nurse who screened Clustka upon her admission was unaware of Clustka's suicide attempt and suicidal statements the day before. Instead of assigning Clustka to suicide watch status, she recommended Clustka be assigned to the general inmate population. Ibid. Had Clustka been placed on suicide watch, the prison would not have provided a bed sheet in her cell. Id. at 22-23.
The morning of April 28, 2005, Clustka, visibly upset, returned to her cell following her arraignment. Pet. App. 23. Mter Clustka did not respond to roll call, a deputy discovered she had committed suicide by hanging herself with her bed sheet. Ibid.
Later that day, petitioner Ashton explained to a jail deputy that he and Robertson knew Clustka had "tried to hang herself' two days earlier (ER 74; Pet. App. 23) but that his more senior partner declined to document the "suicide attempt." Ashton stated he would now write a report and his "sergeant will be pissed." Ibid.
2. While tragic, what happened to Clustka is no isolated incident. Suicide has long been known to be the leading cause of death in United States jails. Goss et al., Characteristics of Suicide Attempts in a Large Urban Jail System with an Established Suicide Prevention Program, JAIL SUICIDE/MENTAL HEALTH UPDATE, Vol. 11, No.3 (Fall 2002) (ER 385). Because a mentally ill person is likely to feel extreme

6
trauma at the point of initial incarceration, the likelihood of suicide is known to be highest in the first fourteen days of confinement. Jutzi-Johnson v. United States, 263 F.3d 753, 757 (7th Cir. 2001) (citing Lindsay M. Hayes et al., National Study of Jail Suicides: Seven Years Later (National Center on Institutions and Alternatives) (1988». The majority of suicide victims communicate suicidal intent before killing themselves. ER 165. The risk "is concentrated in the early days and even hours of being placed in jail, before the inmate has had a chance to adjust to his dismal new conditions." Boncher ex rel. Boncher v. Brown County, 272 F.3d 484,486 (7th Cir. 2001).
Washoe County Jail had witnessed frequent detainee suicides. Between January 2004 and August 2005, six detainees committed suicide while incarcerated there. Pet. App. 23-24. Clustka's suicide followed another detainee's by fewer than 30 days. Ibid. Despite these recurrent suicides, the record indicates the City did not provide its officers with any training on how to respond to suicide attempts or threats. ER 274. Petitioners here testified they never received such training. ER 186, 194,228.
Less than a month after Clustka's suicide, the Reno Police Department presented a training class on how to respond to mentally ill detainees. A new suicide prevention policy was soon implemented, directing transport officers to communicate any suicidal gestures or threats they witness to jail staff. ER 166-67. This policy requires an arresting officer to answer questions about a detainee's mental health at intake, including questions that focus on suicide risk. Pet. App. 24.

7
B. Procedural Posture
1. Respondents, Clustka's survIVmg children, filed this suit under 42 U.S.C. § 1983, alleging in relevant part that Ashton and Robertson violated Clustka's Fourteenth Amendment rights "by making [the] deliberate and intentional decision to not notify Washoe County Detention facility staff of Clustka's suicide attempt and to not write an incident report documenting the attempt." ER 10. Respondents also asserted a claim against the City of Reno, alleging in relevant part that the City's "failure to properly train, supervise, control and/or discipline defendants Ashton and Robertson with respect to their obligations to report suicide attempts by detainees is the cause in fact and proximate cause of the injuries claimed." ER 11.
During discovery, respondents obtained extensive evidence concerning the individual petitioners' subjective awareness of the serious medical risk to Clustka. For example, when Ashton spoke with a jail deputy following Clustka's suicide, Ashton characterized the incident he witnessed as a "suicide attempt," adding "she tried to hang herself in the wagon." ER 74. Ashton further explained he told Robertson that Clustka "was trying to choke herself." ER 149. Responding to requests for admissions, both officers admitted Clustka "became emotional[ly] distraught," "attempted to choke herself," and "threatened to kill herself." ER 349, 359. Robertson testified that reporting the incident would have taken "five seconds." ER 215.
Additionally, respondents obtained substantial evidence concerning the serious medical risk Clustka faced. Jail health director Gail Singletary testified the officers should have let jail nurses know what

8
they saw and heard because there would have been "opportunity to do a more complete evaluation." ER 174. Washoe Medical Center emergency physician Guy Gansert likewise testified that police typically transport a person who threatens suicide to the emergency department where suicide threats are taken "very seriously." ER 323, 325. Finally, psychiatrist Jeffrey Caplan, who previously treated Clustka for suicidal ideation, testified it would have been "critical to get Brenda Clustka to mental health care had she made a repeat suicide threat and attempt on April 26th." ER 337.
2. Upon conclusion of discovery, petitioners moved for, and the district court granted, summary judgment. See Pet. App. 54-74. In the district court's view, although "the actions of Officers Ashton and Robertson in failing to report the seat belt incident may have been negligent conduct, such conduct does not create a triable issue of fact sufficient to support a finding of deliberate indifference." Id. at 67.
The court thus concluded that respondents "failed to establish sufficient facts to support a conclusion by the trier of fact that the conduct of the defendants in failing to report the seat belt incident constituted deliberate indifference to Clustka's rights, or that the conduct of the defendants was the actual cause of Clustka's harm." Pet. App. 71-72. Based on this conclusion, the court held that no claim against the municipality could lie. Id. at 73.
3. The Ninth Circuit reversed, finding that respondents presented sufficient evidence to raise jury questions on both individual and municipal liability.
a. Addressing the claims against the individual officers, the court explained that the deliberate indif-

9
ference claim has three elements: (1) objective, serious medical need; (2) deliberate indifference to that need; and (3) harm caused by the officers' indifference. Pet. App. 27. The court concluded there was sufficient evidence in the record to create triable issues of fact on each of these prongs.
First, the court found that "[a] heightened suicide risk or an attempted suicide is a serious medical need." Pet. App. 27. After reviewing the evidence, the court determined that "[a]n objective juror could certainly conclude that in light of all the circumstances Clustka's actions evidenced a serious medical need." Id. at 30. Petitioners' arguments to the contrary, the court concluded, "merely create a fact question for the jury to resolve." Ibid. Petitioners do not challenge this conclusion.
Second, turning to deliberate indifference, the court explained that this element itself has two requirements: (a) the officer was subjectively aware of the serious medical need, and (b) the officer nonetheless failed to respond reasonably. Pet. App. 30.
Addressing subjective awareness, the court found a triable issue on whether the officers were in fact subjectively aware of Clustka's suicide risk: "Clustka attempted to choke herself with a seat belt and screamed something to the effect of 'kill me or I'll kill myself'; these are warning signs that are difficult for any observer to miss." Pet. App. 32. This conclusion was bolstered by the circumstantial evidence explaining why the officers remained silent: They feared they had violated department policy. Id. at 33. Finally, the court reasoned, the officers' after-thefact statements provided additional support for a factual finding that they were indeed subjectively aware of Clustka's serious medical need. Id. at 33-34.

10
"[C]umulatively," the court concluded, this "evidence is sufficient to create a material issue of fact on the question of the subjective awareness of both officers.
* * * We must leave the question of subjective
awareness to the jury." Id. at 35 (internal quotation marks omitted).
Turning to the reasonableness of the officers' response, the court specifically observed that petitioners did not challenge the legal rule that they now contest here. They never argued that they lacked a duty to respond reasonably to Clustka's serious medical need - they assumed they had such a duty. They argued only that the facts were insufficient to establish actual knowledge: "The defendants do not argue that, if we find that the officers were subjectively aware of Clustka's serious medical need, they nonetheless responded appropriately." Pet. App. 35.
Third, while acknowledging that the "question of
causation is closer," the court was "satisfied * * *
that the [respondents] presented sufficient evidence of actual and proximate causation to defeat summary judgment and give rise to a jury question whether the officers' omissions caused Clustka's eventual suicide." Pet. App. 35-36. In the court's view, "[a] jury could reasonably find that the defendants' failure to report critical information rendered the subsequent medical evaluations ineffectual." Id. at 40. That said, the court also noted that, "[w]hen presented to the jury," petitioners' arguments that their conduct did not cause Clustka's suicide "may well succeed." Id. at 39. Again, petitioners do not challenge this holding.
Finally, the court rejected petitioners' argument for qualified immunity: "When a detainee attempts or threatens suicide en route to jail, it is obvious that the transporting officers must report the incident to

11
those who will next be responsible for her custody and safety. Thus, the constitutional right at issue here has been clearly established." Pet. App. 45.
b. Addressing municipal liability, the court found that respondents presented triable questions of fact here, too. Respondents offered evidence that the City "fail[ed] to train its officers in suicide prevention and the identification of suicide risks" (Pet. App. 47); that this "failure to train officers on how to identify and when to report suicide risks produces a 'highly predictable consequence': that police officers will fail to respond to serious risks of suicide and that constitutional violations will ensue" (id. at 48); and that, had petitioners "been trained in suicide prevention, there is a reasonable probability that they would have responded differently and reported to the jail that Clustka was at risk of suicide, or taken her directly to the hospital" (ibid.). The court thus concluded that respondents "presented sufficient evidence to establish a genuine issue of fact with respect to municipal liability for failure to train." Ibid.
Likewise, the court determined that a jury could find the City liable due to its failure to adopt a suicide prevention policy. Pet. App. 49-51. The court rejected two other municipal liability theories asserted by respondents. Id. at 51-52.
4. The court voted to deny rehearing en banco Chief Judge Kozinski, joined by six others, dissented. See Pet. App. 3-16.
REASONS FOR DENYING THE PETITION
Further review of this case is not warranted for several reasons. First, petitioners have waived the central argument they present here. The individual officers argued below, not (as a matter of law) that

12
they lacked a duty to report assuming they had actual knowledge of an imminent risk of suicidal harm, but only (as a matter of fact) that they lacked actual knowledge. Perhaps recognizing the factbound nature of the arguments pressed below, petitioners assert for the first time that, even if they did have actual knowledge, they lacked a duty to report. That argument, having been waived, provides no basis for granting the petition.
Second, even if the issue had been properly preserved it would not warrant this Court's attention. There should be no dispute that, if an officer has actual knowledge of a detainee's risk of suicide, the officer must respond reasonably. A reasonable response includes reporting this information to subsequent custodians. No circuit has held otherwise.
Third, municipal liability turns, in the first instance, on whether a constitutional violation occurred.! Where an official has violated an individual's constitutional rights by failing to respond reasonably to a known risk of suicide, inquiry may then turn to whether a municipal policy or failure to train caused the constitutional deprivation. That is what the Ninth Circuit did here. There is no reason to think any other circuit would reach a different conclusion.
1 In addressing municipal liability first, petitioners place the municipal cart before the constitutional horse. This Court has long held that a successful claim for municipal liability is predicated upon an independent, underlying constitutional violation. See City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986). Accordingly, the analysis must begin with the question whether the individual officers violated Clustka's constitutional rights.

13
I. PETITIONERS WAIVED THE QUESTIONS PRESENTED.
To begin with, petitioners never argued before the court below that, as a legal matter, they lacked a duty to report suicide risks. Instead, they argued only that, as a matter of fact, they lacked subjective knowledge sufficient to trigger that duty. Petitioners have therefore waived review of the questions presented in the petition.
A Fourteenth Amendment claim for failure to provide a pre-trial detainee adequate medical treatment turns on the long-established deliberate indifference standard. The Ninth Circuit's application of that standard to the unique facts of this case involved no innovation. On the contrary, the court merely concluded that summary judgment was not appropriate because respondents adduced evidence from which a jury could conclude:
(1) that Clustka had a "serious medical need" that, if not treated, "could result in further significant injury" (Pet. App. 27);
(2) that the officers were "deliberately indifferent" to that serious medical need, which requires proof the officers were subjectively aware of the serious risk to Clustka's safety and failed adequately to respond to this risk (id. at 30); and
(3) that the officers' deliberate indifference actually and proximately caused Clustka's injury (id. at 35-36).
Petitioners do not challenge this framework. Nor do petitioners contest the lower court's decision concern-

14
ing the first and third elements of the deliberate indifference inquiry.
Rather, petitioners' argument - addressing both individual and municipal liability - turns exclusively on their contention that they were not deliberately indifferent. As the court below explained, "deliberate indifference" has two distinct parts: "that the officers were (a) subjectively aware of the serious medical need and (b) failed to adequately respond." Pet. App. 30 (citing Farmer, 511 U.S. at 828).
Before the court below, petitioners argued only that Clustka's evidence was insufficient to prove the first prong of the deliberate indifference analysis. They contended respondents could not establish deliberate indifference because, as a matter of fact, they lacked subjective awareness of the medical risk Clustka faced. They did not argue the second prong that, as a matter of law, they lacked a duty to "report," "share," or "communicate" information suggesting a serious risk of suicide (assuming they had actual knowledge of that risk). See Appellees' Answering Br. at 30-38. Petitioners' briefing below focused solely on the sufficiency of respondents' factual showing. See, e.g. id. at 31 ("[Respondents] were required to present sufficient evidence that would allow a trier of fact to conclude the officers knew Clustka was suicidal."); id. at 32 ("[Respondents] produced no evidence that either officer actually knew Clustka was at substantial risk of serious harm."); id. at 33 ("The facts referenced by [respondents] do not provide evidence of actual knowledge."); id. at 35 (Respondents did not "establishD sufficient evidence to demonstrate a genuine issue of fact regarding either officers' state of mind"); id. at 38 ("[Respondents] failed to show there was sufficient

15
evidence to raise a genuine issue of material fact regarding the officers' knowledge of a substantial risk of serious harm to Clustka.").
That is how the Ninth Circuit saw it, too: "The defendants do not argue that, if we find that the officers were subjectively aware of Clustka's serious medical need, they nonetheless responded appropriately." Pet. App. 35 (emphasis in original). Thus, the question presented to the lower court was purely factual - whether respondents offered sufficient evidence for a jury to conclude that the individual petitioners were subjectively aware of Clustka's serious medical need. Petitioners never argued that, if they had such actual knowledge, they were not required to report this information to subsequent custodians.2
Perhaps cognizant that such a purely fact-bound question would not warrant this Court's attention, petitioners have now taken an about-face, arguing that, even if they were subjectively aware of Clustka's serious medical need, they nonetheless acted reasonably because they had no duty to report the information. See, e.g., Pet. i (presenting question whether "law-enforcement officers [must] diagnose and report detainees' symptoms of suicidal tenden-
2 Presaging the waiver problem, petitioners hint that the dis· sent from denial of rehearing en bane demonstrates that the legal issues raised for the fIrst time in the petition were, in fact, presented below. Pet. 40. But that is not so. In fact, the petition for rehearing beat precisely the same drum as the merits briefing, arguing exclusively that the offIcers lacked subjective knowledge of Clustka's medical need. See Pet. for Reh'g En Bane, at 11 ("No reasonable jury could fInd that the officers were aware of an excessive risk that Clustka would commit suicide by not reporting her intoxicated conduct without having information about her history regarding suicidal threats.").

16
cies"); id. at 3 ("whether law-enforcement officers must diagnose and communicate detainees' symptoms of suicidal tendencies"); id. at 16 (whether "the Due Process Clause requires law-enforcement officers to diagnose and report symptoms of mental illness"); id. at 29 (whether "failure to diagnose and share medical information could amount to deliberate indifference"). This is precisely the argument the lower court noted was waived below.
The rule on waiver is well-settled: "Where issues are neither raised before nor considered by the Court of Appeals, this Court will not ordinarily consider them." Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1, 8 (1993) (internal quotation marks omitted). Such a glaring defect is, of itself, sufficient reason to deny review here.
II. THE INDIVIDUAL LIABILITY HOLDING DOES NOT WARRANT REVIEW.
It is hardly surprising that petitioners waived this argument below. This Court has long held that the state is obligated to provide prisoners necessary care in the face of a serious medical need. Estelle v. Gamble, 429 U.S. 97, 102-03 (1976). Likewise, the Court has explained that an official who subjectively knows a detainee is at imminent risk of serious harm but does nothing violates the detainee's constitutional rights. Farmer v. Brennan, 511 U.S. 825, 828 (1994).
The Ninth Circuit's ruling merely applied the tried-and-true deliberate indifference standard to the facts of a case where officers both watched the detainee attempt and heard her threaten suicide. The court correctly held that, when a custodial officer has actual knowledge that a detainee is an imminent

17
suicide risk, the officer has a duty to respond reasonably. Remaining silent and failing to communicate this information to anyone - including subsequent custodial officers - is not a reasonable response. No court of appeals has reached a contrary conclusion.
A. There Is No Circuit Conflict Concerning Individual Liability.
All circuits to consider deliberate indifference in the jail suicide context agree on the controlling standard: If a law-enforcement officer possesses actual knowledge that a detainee in his or her custody has recently attempted to commit suicide or expressly threatened to do so, the officer must take reasonable precautions. While, unsurprisingly, courts sometimes find liability and sometimes not, these different outcomes turn on application of this same legal standard to differing factual situations.
1. Petitioners are incorrect to assert that the holdings of two circuits are in conflict on this point with the ruling below. Pet. 30.3 In Elliott v. Cheshire County, 940 F.2d 7 (1st Cir. 1991), the First Circuit concluded "there can be no deliberate indifference if the defendants are unaware that the detainee poses a risk of harm to himself." Id. at 11. Thus, where "there was no evidence that the corrections personnel had actual notice of [the detainee's] need for protection from himself," no claim could lie. Ibid.
3 Each of the decisions purportedly in conflict with the holding below predates this Court's 1994 decision in Farmer, which announced the now-prevailing deliberate indifference standard. If the decisions cited by petitioners were in tension with the holding below - and as demonstrated in text, they are not - there would be reason to doubt they survive Farmer.

18
Petitioners concede the facts of Elliott "are not identical" to the circumstances here. Pet. 31. There, an eighteen-year-old boy committed suicide after spending some days in detention. The court found the officer who arrested and transported the boy Trooper Ranhoff - not liable because it was "undisputed that [he] did not know of [the detainee's] previous suicide attempts." Elliott, 940 F.2d at 12. Because Ranhoff had no knowledge of any recent suicide attempts or threats, he breached no duty.
The court, however, reversed the district court's grant of summary judgment favoring various corrections personnel. Two inmates alleged they heard the boy threaten suicide while in custody and "reported the suicide threat to corrections officers." Elliott, 940 F.2d at 11. The court concluded - in accord with the decision below - that, if the corrections officers had actual knowledge of the boy's suicide threat yet failed to respond reasonably, they could be found liable. Id. at 11-12.
In Manarite v. City of Springfield, 957 F.2d 953, 956 (1st Cir. 1992), the First Circuit confirmed this view of the proper legal standard, explaining that "when liability for serious harm or death, including suicide, is at issue, a plaintiff must demonstrate 'deliberate indifference' by showing, (1) an unusually serious risk of harm (self-inflicted harm, in a suicide case), (2) defendant's actual knowledge of (or, at least, willful blindness to) that elevated risk, and (3) defendant's failure to take obvious steps to address that known, serious risk" (emphasis added). The Ninth Circuit here applied the same standard.
Nor does the Third Circuit apply a contrary rule. In Freedman v. City of Allentown, 853 F.2d 1111, 1115 (3d Cir. 1988) - decided over 20 years ago - the

19
court held that a claim lies "[w]hen facts have been
pled which * * * demonstrate that the prison officials
actually knew of the suicidal tendencies of a particular prisoner, and ignored their responsibility to take reasonable precautions" (emphasis added). There, a young man, Freedman, committed suicide after being detained. Id. at 1113. Among the defendants were officer Balliet, who detained Freedman, and probation officer Kroboth, who knew Freedman had previously exhibited suicidal tendencies. Ibid.
The court affirmed dismissal of the complaint against Balliet because the plaintiffs did "not allege"
he possessed "actual knowledge * * * of Freedman's
suicidal tendencies." Freedman, 853 F.3d at 1115. At most, plaintiffs' evidence showed "mere negligence
* * * in failing to recognize Freedman's suicidal ten-
dencies from the scars that were readily apparent." Id. at 1116. The court emphasized that, if Balliet did have actual knowledge, he could have been found liable.
The court also affirmed dismissal of the claim against Kroboth. Freedman, 853 F.3d at 1117. Kroboth allegedly knew Freedman had attempted suicide in the past. Ibid. Kroboth, however, had neither custodial responsibility for Freedman nor knowledge of recent suicide attempts or threats suggesting an imminent suicide risk.
Williams v. Borough of West Chester, 891 F.2d 458 (3d Cir. 1990), decided a year later, is no different. In Williams, the court again considered whether custodial officers had actual knowledge of a detainee's recent suicide attempts or threats. In that case, Williams committed suicide while in police custody. Years before his suicide, he had made other suicide attempts and threats. Id. at 462-63. Because there

20
was "no direct evidence" the custodial officers "actually knew" of those prior incidents, the court found the officers could not have been deliberately indifferent. Id. at 465. But the court emphasized that, if those officers did have actual knowledge, they could have been found liable. Id. at 461. The court also dismissed a claim against a police dispatcher, McBride, who knew the detainee had in the past "threatened to jump from a bridge." Id. at 463. As a civilian dispatcher, McBride "had no custodial responsibility for prisoners." Id. at 462 & 466-67. Moreover, the bridge incident occurred seventeen months earlier, giving no basis to believe Williams was in imminent danger. Id. at 463. There is simply no basis to conclude that the Third Circuit's decisions in those decades-old, pre-Farmer cases conflict with the holding here.
2. A recent decision of the Ninth Circuit - issued after the petition in this case was filed - forecloses any suggestion that the Ninth Circuit applies a legal rule at odds with other courts of appeals.
Simmons v. Navajo County, _ F.3d _, 2010 WL 2509181 (9th Cir. June 23, 2010), involved a seventeen-year-old boy who, after one week in custody, told an officer "he had tried to kill himself by cutting his left wrist with a razor." Id. at *1. The boy was placed on suicide watch and evaluated frequently throughout the next month. Id. at *1-2. Over a month later, the boy committed suicide. Id. at *2. The district court granted jail personnel summary judgment, and - relying heavily on its decision in this case - the Ninth Circuit affirmed. Ibid.
Writing for a unanimous panel, Judge O'Scannlain found that jail nurse Jones, who treated the boy for his initial suicide attempt, could not be

21
liable because "over a month had elapsed since his suicide attempt with the razor, during which time [the boy] received counseling, took antidepressants, and by all accounts, was doing better." Simmons, 2010 WL 2509181, at *4. No evidence supported the inference that Jones knew the boy "'was at acute risk of harm' at the time he killed himself." Ibid. (quoting Conn v. City ofReno, 591 F.3d 1081, 1097 (9th Cir. 2010)). For a similar reason, the court found a second nurse not liable. Id. at *6.
The Ninth Circuit also found not liable the officer on duty when the boy committed suicide, noting, "[i]t is uncontested that [the officer] did not know about [the boy's] previous suicide attempt." Simmons, 2010 WL 2509181, at *6. That the boy was on Level II suicide watch did not give the officer knowledge of his immediate danger because that designation "is designed for emotionally unstable, rather than imminently suicidal, detainees." Ibid. Invoking language from this case, the court explained: "While [the boy's] suicide watch status may have alerted [the officer] to the possibility of suicide, we cannot say that the magnitude of the risk was 'so obvious that [he] must have been subjectively aware of it.'" Id. at *7 (quoting Conn, 591 F.3d at 1097).
Simmons demonstrates the baselessness of petitioners' fanciful warning that the holding below "obligates officers to make nuanced psychiatric diagnoses." Pet. 3. Nothing about the lower court's decision requires a law-enforcement officer to play psychiatrist. Rather, the opinion simply obligates a custodial officer to report obvious suicide attempts and threats to subsequent custodians. That holding is wholly unexceptional.

22
B. The Ninth Circuit's Decision Concerning Individual Liability Is Correct.
The decision below is not only consistent with those by other courts of appeals, it is also correct. Law-enforcement officers have a duty to report suicide attempts or threats they personally witness and, because this duty is clearly established, there can be no qualified immunity here.
1. Arguing that "law-enforcement officers' mere failure to communicate falls well short of deliberate indifference" (Pet. 33), petitioners rely heavily on Davidson v. Cannon, 474 U.S. 344 (1986).4 That reliance is misplaced. Davidson (an inmate) wrote a note relating a threatening comment by a fellow prisoner and, subsequently, the prisoner attacked Davidson. Finding Cannon (a prison official who read the note) not liable for Davidson's injury, this Court focused on whether Cannon had actual knowledge of an imminent threat and concluded he did not: "Cannon mistakenly believed that the situation was not particularly serious." [d. at 348. Davidson himself "testified that he did not foresee an attack, and that he wrote the note to exonerate himself in the event [the other prisoner] started another fight." [d. at 346. Davidson also conceded that Cannon was at most negligent. [d. at 347.
Thus, consistent with the decisions described above, Davidson stands for the principle that an official's duty turns on whether, as a subjective matter, he or she has actual knowledge of a detainee's serious risk of harm. In Davidson, where the official
4 Petitioners never cited Davidson below, further demonstrating they have waived this argument.

23
had no subjective knowledge of that risk, no duty attached. But Davidson assuredly does not stand for the very different rule that, if an official has actual knowledge a detainee is at imminent risk of harm, the official is free to do nothing.
Any confusion over the correct rule to apply in these deliberate indifference cases was settled eight years later in Farmer v. Brennan, 511 U.S. 825 (1994). There, the Court explained that, to be held deliberately indifferent, "the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Id. at 837. Actual knowledge may be demonstrated by circumstantial evidence that the risk was obvious:
Whether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from the circums-
tantial evidence, * * * and a fact finder may
conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.
Id. at 842 (internal quotation marks omitted). Once an official has this requisite awareness, he has a duty to respond reasonably under the circumstances. Id. at 837-38, 844-45.
The court below correctly applied this controlling law in deciding respondents presented sufficient evidence to create triable factual questions on deliberate indifference. It evaluated the entire record and concluded that, because the officers witnessed Clustka both attempt and threaten suicide, a reasonable jury could conclude the individual officers had sub-

24
jective awareness of her serious medical need. Pet. App. 31-35. Pointedly, the officers' after-the-fact admissions present strong additional evidence supporting respondents' claim.
Once an official has subjective knowledge of a serious medical risk, he or she must "respondD reasonably to the risk." Farmer, 511 U.S. at 844. If an official "act[s] reasonably," no liability may lie. Id. at 845. As the court below concluded, if the individual officers had subjective knowledge of Clustka's serious medical need, they obviously breached their duty to respond reasonably because they did nothing whatsoever. See Pet. App. 35. It was for good reason that petitioners did not argue below that they "responded adequately to the situation presented." Ibid.
Petitioners' argument that "their single instance of not passing along Clustka's threats to prison guards may perhaps have been negligent" but "[fell] far short of deliberate indifference" (Pet. 34-35) is entirely untethered from the well-established deliberate indifference standard. If the officers had actual knowledge of Clustka's serious medical need yet failed reasonably to respond, the jury could find them deliberately indifferent.
2. Because these legal standards have been clearly established for decades, petitioners' invocation of qualified immunity is unpersuasive. In fact, numerous decisions have held that officers have a duty to report information relating to suicide attempts or threats. See, e.g., Cavalieri v. Shepard, 321 F.3d 616, 622 (7th Cir. 2003); Turney v. Waterbury, 375 F.3d 756, 761 (8th Cir. 2004); Snow v. City of Citronelle, 420 F.3d 1262, 1270 (11th Cir. 2005).

25
III. THE MUNICIPAL LIABILITY HOLDING DOES NOT WARRANT REVIEW.
A. There Is No Conflict Concerning Municipal Liability.
Petitioners get no further with their claim of a conflict in the circuits on the scope of municipalliability. Pet. 17-23. In making this argument, petitioners point to decisions holding only that there can be no municipal liability absent an underlying constitutional violation by individual officers. But those decisions do not stand for the much broader proposition that municipalities never may be held liable "for failing to train law-enforcement officers" on how to respond to threats of suicide. Id. at 18. In fact, petitioners do not identify a single case in which a court held that a jury could not find municipal liability for failure to train where the plaintiff was able to establish a constitutional deprivation by municipal officials. 5
1. In Burns v. City of Galveston, 905 F.2d 100 (5th Cir. 1990) (cited at Pet. 19, 23), the Fifth Circuit readily acknowledged that "municipal liability may be premised on a policy or custom that fairly may be said to have been the cause of or a significant contri-
5 Petitioners' municipal liability argument focuses solely on the Ninth Circuit's holding on the failure-to-train claim. Pet. 17-28. But the court below also held municipal liability could stem from the city's failure to adopt a suicide prevention policy. Pet. App. 49-51. Petitioners entirely ignore this alternative theory of liability. Thus, even if petitioners were correct in their contention that "Harris does not open municipalities to liability for failure to train officers to diagnose detainees' suicidal tendencies" (Pet. 24), the "failure to adopt and implement policies" claim would remain on remand. Review is inappropriate on this basis alone.

26
buting factor to a suicide." Burns, 905 F.2d at 103 (emphasis added). According to that court, a municipality does have an obligation "to train its police officers to recognize and not ignore obvious medical needs of detainees with known, demonstrable, and serious mental disorders." Id. at 104. The court concluded, however, that the defendant municipality could not be held liable in that case, not because municipalities may never be liable for failure to train officers to recognize signs of imminent suicide, but because there was no underlying constitutional violation that could give rise to municipal liability in the first place. As the court explained, the evidence before it did not establish that particular officials had actual, subjective knowledge of the decedent's suicidal intentions. Although the decedent's cellmate testified that the decedent had threatened to kill himself, the officers did not hear the threat. Id. at 101-02. The decedent's mother also gave the officers "no reason to believe [the decedent] had any mental problems or suicidal tendencies." Id. at 102.
Subsequent Fifth Circuit law agrees. Sitting en banc, that court held in Hare v. City of Corinth, 74 F.3d 633, 649 n.4 (5th Cir. 1996), that municipalliability could lie in an inmate suicide case if it were shown that a municipal policy or custom caused an underlying constitutional violation. And quite recently, the Fifth Circuit affirmed that municipalities do indeed have an obligation to train custodial officers to respond to suicide risks of which they have actual knowledge:
In the specific context of prison suicide prevention, municipalities must provide custodial officials with minimal training to detect obvious medical needs of detainees with

27
known, demonstrable, and serious medical disorders, but a failure to train custodial officials in screening procedures to detect latent suicidal tendencies does not rise to the level of a constitutional violation.
Whitt v. Stephens County, 529 F.3d 278, 284 (5th Cir. 2008) (internal quotation marks omitted). That is precisely the holding here.
2. Similarly, in Popham v. City of Talladega, 908 F.2d 1561 (11th Cir. 1990) (cited at Pet. 19), the Eleventh Circuit found no underlying constitutional violation to justify potential municipal liability. The court held "the facts in [that] case [did] not rise to a level sufficient to support the constitutional standard of deliberate indifference" by the individual officers. Id. at 1564. Specifically, those officers "did not know [the decedent had] threatened suicide from his jail cell." Ibid. (emphasis added). Only a neighboring inmate had overheard the decedent's suicide threat, and "[h]e made no attempt to notify authorities." Ibid.
Thus, consistent with the Fifth Circuit, the Eleventh Circuit in Popham rejected the plaintiff's failure-to-train claim, not because such claims are categorically unsustainable - to the contrary, the court recognized that "inadequate police training may pro-
vide a basis for section 1983 liability * * * where fail-
ure to train amounts to deliberate indifference" (908 F.2d at 1564-65) - but because the officers lacked the crucial "knowledge of a detainee's suicidal tendencies." Id. at 1564.
3. The Sixth Circuit's decision in Barber v. City of Salem, 953 F.2d 232 (6th Cir. 1992) (cited at Pet. 20, 23), is no different. In Barber, the court

28
"adopt[ed] the Eleventh Circuit's holding in Popham" and further explained that, under Popham, a municipality may be held liable for failure to train when "the decedent showed a strong likelihood that he would attempt to take his own life in such a manner that failure to take adequate precautions amounted to deliberate indifference." Id. at 239-40. There again, the court rejected municipal liability for purely factual reasons: the decedent's actions in that case "could not be considered abnormal and would not alert the jail authorities to a strong likelihood that [he] would commit suicide." Id. at 240. The court correctly noted that, "where no constitutional violation exists for failure to take special precautions, none exists for failure to promulgate policies and to better train personnel to detect and deter jail suicides." Ibid.
More recently, the Sixth Circuit confirmed that municipalities may be held liable for detainee suicides where the facts suggest an underlying constitutional violation caused by a municipality's failure to take adequate precautions. In Cooper ex rel. Estate of Morton v. County of Washtenaw, 222 Fed. App'x 459, 469, 473 (6th Cir. 2007), the court found that an officer's conduct "arguably constitute[d] [a] constitutional violation" because he "was on notice" that a detainee was a suicide risk. The court reversed dismissal favoring the municipality and remanded for a factual determination whether the officer's "deficient behavior can be fairly characterized as a 'city policy.'" Id. at 473. The Sixth Circuit is thus firmly in accord with the holding of the court below.
4. The First Circuit follows exactly the same approach. In Manarite, 957 F.2d at 959 (cited at Pet. 21, 23), that court held, not that municipalities may

29
never be held liable for failure to train officers to respond to acute suicide risks, but that there was no evidence the particular officers "ha[d] been willfully blind not to have noticedO that the decedent posed a strong risk of suicide," as "the decedent exhibited no manifestations of suicidal tendencies." Moreover, entirely unlike the facts here, the municipality in Manarite had "implemented guidelines and procedures to prevent persons held in protective custody from inflicting harm on themselves." Ibid. On the presumption that municipalities could be held liable under appropriate circumstances but that the city had appropriately trained its officers, the court saw "no basis here for finding that the decedent's suicide is closely related to the failure of the [city] to train its officers in suicide prevention." Ibid. Nothing in Manarite is inconsistent with the result in this case.
Citing both Manarite and the decision below, a district court in the First Circuit recently denied a municipality's motion to dismiss a detainee suicide claim. Coscia ex rel. Estate of Coscia v. Town of Pembroke, _ F. Supp. 2d _, 2010 WL 2223685 (June 4, 2010). That court expressly distinguished Manarite on the factual basis that there was "no information about what the municipality taught officers regarding potentially suicidal detainees and whether that teaching comported with applicable state laws." Id. at *12.
5. So too, the Seventh Circuit's decision in Boncher ex rel. Boncher v. Brown County, 272 F.3d 484 (7th Cir. 2001) (cited at Pet. 20), has adopted the same approach to municipal liability. Although the detainee in that case had made a generalized suicide threat, he did so in a joking manner and, when questioned about it, expressly denied being a suicide risk.

30
On those facts, the court concluded there was not "any doubt that the intake officers believed that he
was joking * * * and that he was not a serious suicide
risk." Id. at 487. The court distinguished other Seventh Circuit precedent on that ground, concluding: "The defendants simply were not alerted to the likelihood that Boncher was a genuine suicide risk." Id. at 488. In analyzing the facts before it, the court in Boncher acknowledged that municipalities that fail to take appropriate "precautions against the possibil-
ity of inmate suicide * * * would be guilty of delibe-
rate indifference in the relevant sense" if, for example, officers were confronted with "evidence of profound mental disturbance" and a statement from the decedent that he "was suicidal" and yet did nothing. Id. at 486-87.
Subsequent Seventh Circuit authority demonstrates how municipal liability turns on the specific factual circumstances. In Woodward v. Correctional Medical Services of Illinois, Inc., 368 F.3d 917, 927 (7th Cir. 2004), the court affirmed a judgment against a private contractor that provided medical and health services to a prison. Applying the standard municipal-liability framework, the court concluded, based on the evidence before it, that the contractor's "actual policy and practice caused its employees to be deliberately indifferent to [the decedent's] serious" risk of suicidal harm. Id. at 928. Given an underlying constitutional violation, the critical question for the court was whether "the violation was a 'highly predictable consequence' of the municipality's failure to act." Id. at 929 (quoting Bd. of County Comm'rs v. Brown, 520 U.S. 397, 409 (1997».

31
That is precisely the question the court below posed before finding a triable issue on municipalliability. Pet. App. 47-48. Woodward thus demonstrates the principle applied by every circuit: When an individual state official is found to have violated a detainee's constitutional rights by failing to respond to an acute risk of suicidal harm, the municipality may be held liable for failure to train.
6. The consistency of the decision below with Burns, Popham, Barber, Manarite, and Boncher was recently confirmed by the Ninth Circuit's decision in Simmons. Relying on the decision below for the governing legal standards, Judge O'Scannlain's decision for the court distinguished the facts in this case from those then before it: In this case "official[s] knew a pretrial detainee was actively suicidal but failed to ensure that precautionary measures were undertaken," but in Simmons "the evidence [did not] supportO the inference that Nurse Jones knew [the decedent] 'was at acute risk of harm' at the time he killed himself." 2010 WL 2509181, at *4--*5 (quoting, Conn, 591 F.3d at 1097). The court focused on whether the jailors in Simmons had subjective knowledge of an acute risk of suicide. Because there was no evidence to establish an "underlying constitutional violation," the plaintiff there "[could] not maintain a claim for municipal liability." Id. at *7. The law of the Ninth Circuit is in complete accord with that of all other courts of appeals.6
6 Petitioners' reliance for their claim of a conflict (Pet. 22-23) on the Third Circuit's judgment in Simmons v. City of Philadelphia, 947 F.2d 1042 (3d Cir. 1991), is inapposite. In that fractured decision, there was a judgment against only the municipality, which the court reviewed under a "highly deferential standard" subject to the municipality's waiver of the "know-

32
B. The Ninth Circuit's Decision Concerning Municipal Liability Is Correct.
The decision below in this case is a straightforward and correct application of settled law to unique facts. In City of Canton v. Harris, 489 U.S. 378, 390 (1989), this Court held municipal liability appropriate when "the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need."
Here, the court below properly applied this standard in holding that unresolved factual questions exist that will determine whether municipal liability is appropriate. In addition to the sharply disputed factual question whether the individual petitioners committed a constitutional violation in the first place, the court found that municipal liability under a failure-to-train theory also turns on several additional questions of fact: (1) whether "the City did, in fact, fail to train its officers in suicide prevention and the identification of suicide risks" (Pet. App. 47); (2) whether "[t]he failure to train officers on how to identify and when to report suicide risks produces a 'highly predictable consequence': that police officers will fail to respond to serious risks of suicide and that constitutional violations will ensue" (id. at 48); and (3) whether, "had the City trained its officers, the violations of Clustka's constitutional rights could have been avoided" (ibid.). In addressing these ques-
ledge" requirement. Id. at 1072 n.30. Writing for himself, Judge Becker appeared to suggest that a municipality could be liable even absent a constitutional violation by an individual officer. Id. at 1049-50. But that was not the holding of the court in this case.

33
tions, the court properly concluded that respondents "presented sufficient evidence to establish a genuine issue of fact" and that "a reasonable jury could find" the City liable. Ibid. (emphasis added).
Petitioners nevertheless assert that taking action in response to a "detainees' suicidal tendencies" is not "within the scope of police officers' duties." Pet. 24. But that blunderbuss contention misstates wellestablished law. This Court has long held that "deliberate indifference to serious medical needs of prisoners" is a constitutional violation. Estelle, 429 U.S. at 104. There is no doubt that an imminent risk a prisoner will commit suicide constitutes such a "serious medical need." Thus, if an official has actual knowledge that a detainee is at imminent risk of suicide, the official must respond reasonably. As the courts of appeals have uniformly held, this is one of
the "tasks * * * officers must perform." See Harris,
489 U.S. at 390.
On this point, it bears emphasis that petitioners, their amicus, and Chief Judge Kozinski in his dissent from denial of rehearing all vastly overstate the scope and practical implications of the holding below. It is plain on the face of the Ninth Circuit's decision that it does not impose "costly psychiatric-training duties" on municipalities, "obligateD officers to make nuanced psychiatric diagnoses," (Pet. 3, 37-39), or
"transform * * * police officers into suicide preven-
tion experts." Pet. App. 5. And it certainly does not direct judges to "micromanage the police" or oblige municipalities "to run [their] suicide prevention program[s] in whatever manner unelected federal judges think best" (id. at 8) - much less "createD novel duties to train and report information that

34
bear no relationship to the fact of incarceration." Id. at 4.
Instead, so far as municipal liability is concerned, all the court below held is that a jury might find deliberate indifference when a municipality did nothing to train officers or adopt suicide prevention policies, in circumstances where the local jail had been the scene of repeated recent suicides. Pet. App. 47-48, 50. There is no hint in the court's holding of any requirement that municipalities train police officers in psychiatry or to be suicide prevention "experts." The only question in this case, after all, is whether officers should be educated to report to subsequent custodians when they see a person in their custody threaten, and actually attempt, suicide. The Ninth Circuit said nothing about what such training or policies might encompass. And the court of appeals' answer to the question here is unexceptional: Reporting known facts indicating serious, imminent risk to persons in custody has long been among the most basic of police duties. Given the pre-trial posture of this case and the incomplete record, nothing here warrants review by this Court.
CONCLUSION
The petition for a writ of certiorari should be denied.

Respectfully submitted.

TERRI KEYSER-COOPER

CHARLES A. ROTHFELD

Counsel of Record

ANDREW J. PINCUS

Law Office of Terri Keyser- PAUL W. HUGHES*

Cooper

MICHAEL B. KIMBERLY

3365 Southampton Drive Mayer Brown LLP

Reno, NV 89509

1999 K Street, NW

(775) 337-0323

Washington, DC 20006

DIANE K. VAILLANCOURT

(202) 263-3000

Law Office of Diane K. Vaillancourt
849 Almar Ave., Ste. C403 Santa Cruz, CA 95060 (831) 458-3440

* Admitted in New York
only; admission to the District of Columbia pending.

Counsel for Respondents
AUGUST 2010

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CITY OF RENO, RYAN ASHTON, and DAVID ROBERTSON,
Petitioners, v.

CHARLA and DUSTIN CONN, Respondents.
--------·--------

On Petition For A Writ Of Certiorari To The United States Court Of Appeals
For The Ninth Circuit
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PETITIONERS' REPLY BRIEF
--------·--------

STEPHANOS BIBAS
NANCY BREGSTEIN GORDON
UNIVERSITY OF PENNSYLVANIA
LAW SCHOOL SUPREME COURT CLINIC
3400 Chestnut Street Philadelphia, PA 19104 (215) 746-2297

JoHN J. KADuc Counsel ofRecord
DONALD L. CHRISTENSEN
CITY OF RENO
Post Office Box 1900 Reno, NV 89505 (775) 334-2050 kadlicj@reno.gov
Counsel for Petitioners

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 OR CALL COLLECT (402) 342-2831

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1
TABLE OF CONTENTS
Page
TABLE OF CONTENTS .................. .......... .......... 1
TABLE OF AUTHORITIES................................. n
I. THE NINTH CIRCUIT'S PER SE RULE OF MUNICIPAL LIABILITY IRRECONCILABLY CONFLICTS WITH DECISIONS OF FIVE OTHER CIRCUITS ....... 2
II. BY AUTHORIZING MUNICIPAL LIABILITY ABSENT PROOF OF A PATTERN OF VIOLATIONS, THE NINTH CIRCUIT'S HOLDING CONFLICTS WITH CITY OF CANTON v. HARRIS................. 6
III. BY AUTHORIZING INDIVIDUAL LIABILITY, THE NINTH CIRCUIT HAS GUTTED FARMER v. BRENNAN'S ACTUAL-KNOWLEDGE REQUIREMENT AND QUALIFIED IMMUNITY, AS PETITIONERS HAVE CONSISTENTLY ARGUED................................................... 8
IV. THE NINTH CIRCUIT'S HOLDING GREATLY BURDENS CITIES AND OFFICERS ...................................................... 13
CONCLUSION..................................................... 14

11
TABLE OF AUTHORITIES Page
CASES
Barber v. City of Salem, 953 F.2d 232 (6th Cir. 1992) ..........................................................................5
Bd. of Comm'rs of Bryan Cty. v. Brown, 520
u.s. 397 (1997) ..........................................................6
Bell v. Stigers, 937 F.2d 1340 (8th Cir. 1991) ............ 11 Boneher ex rel. Boncher v. Brown Cty., 272 F.3d
484 (7th Cir. 2001) ....................................................4 Burns v. City of Galveston, 905 F.2d 100 (5th
Cir. 1990) ...................................................................3 Cavalieri v. Shepard, 321 F.3d 616 (7th Cir.
2003) ........................................................................ 13 City of Canton v. Harris, 489 U.S. 378 (1989).....passim Conn v. City of Reno, 591 F.3d 1081 (9th Cir.
2010) ................................................................passim Cooper ex rel. Estate of Morton v. County of
Washtenaw, 222 F. App'x 459 (6th Cir. 2007) ...........5 Davidson v. Cannon, 474 U.S. 344 (1986) ................. 11 Domino v. Texas Dep't of Crim. Justice, 239
F.3d 752 (5th Cir. 2001) .......................................... 11 Elliott v. Cheshire Cty., 940 F.2d 7 (1st Cir.
1991) ........................................................................ 12
Farmer v. Brennan, 511 U.S. 825 (1994) ...........passim Freedman v. City of Allentown, 853 F.2d 1111
(3d Cir. 1988)........................................................... 12

111
TABLE OF AUTHORITIES - Continued Page
Hare v. City of Corinth, 74 F.3d 633 (5th Cir. 1996) ..........................................................................4
Hope v. Pelzer, 536 U.S. 730 (2002)............................ 10 Manarite ex rel. Manarite v. City of Springfield,
957 F.2d 953 (1st Cir. 1992) ......................................5 Monell v. Dep't of Soc. Servs. of the City of New
York, 436 U.S. 658 (1978)..........................................7 Popham v. City of Talladega, 908 F.2d 1561
(11th Cir. 1990)..........................................................4 Snow v. City of Citronelle, 420 F.3d 1262 (11th
Cir. 2005) ................................................................. 13 Turney v. Waterbury, 375 F.3d 756 (8th Cir.
2004) ........................................................................ 13 Whitt v. Stephens Cty., 529 F.3d 278 (5th Cir.
2008) ..........................................................................4 Williams v. Borough of West Chester, 891 F.2d
458 (3d Cir. 1989) .................................................... 12 Woodward v. Carr. Med. Servs. of Ill., Inc., 368
F.3d 917 (7th Cir. 2004) ........................................... .4 Yee v. City ofEscondido, 503 U.S. 519 (1992) ..............9 Zobrest v. Catalina Foothills Sch. Dist., 509
u.s. 1 (1993) ..............................................................9
CONSTITUTIONAL AND STATUTORY PROVISIONS 42 U.S.C. §1983 ........................................................ 6, 9 U.S. Const. amend. XIV; §1 ..........................................9

l31ank Page

1
Respondents try to portray the Ninth Circuit's decision as an unremarkable application of settled law to the facts of this case, but they cannot obscure the radical holding below. The city and officers here did not "do nothing" (Opp. 23); they followed prescribed procedures to deliver Clustka to trained medical professionals, relying on them for diagnosis and treatment. Yet the Ninth Circuit authorized municipal liability for failure to train police in suicide prevention, even though respondents did not plead a pattern of suicides. The decision below created a per se rule authorizing municipal liability if a city does not train officers in suicide detection and an officer fails to detect a suicide risk.
The Ninth Circuit's per se rule conflicts with decisions of five circuits that have refused to allow municipal liability for jail suicides. Diagnosing the risk of jail suicides is the job of doctors, not police. Respondents cite no other case upholding liability for failure to train law-enforcement officers in these circumstances. The decision below also contravenes City of Canton v. Harris, particularly its respect for federalism and its ban on reasoning backwards, inferring municipal-policy liability from the mere fact of harm. 489 U.S. 378, 390-92 (1989).
The Ninth Circuit's ruling on individual-officer liability also conflicts with decisions of other circuits and of this Court in Farmer v. Brennan, 511 U.S. 825 (1994). Courts faithful to Farmer refuse to base deliberate-indifference liability upon officers' mere awareness of facts indicating risk. And because no

2
previous decision has held officers liable in these circumstances, qualified immunity must protect the officers.
Petitioners have consistently raised these extremely important issues.1 This Court's review IS imperative.
I. THE NINTH CIRCUIT'S PER SE RULE OF MUNICIPAL LIABILITY ffiRECONCILABLY CONFLICTS WITH DECISIONS OF FIVE OTHER CIRCUITS
Respondents never pleaded that Reno had a pattern of jail suicides attributable to inadequate officer training or policies, which might have notified city policymakers of the need to train. On the contrary, they argued only that single-incident liability should lie because the need for suicide-prevention training and policies was obvious. First Am. Compl. 'fi64; Pis.' Opp'n Summ. J. 29-30; Appellants' Opening Br. 47-48.2
1 Although respondents imply that petitioners waived both questions presented, Opp. 13, they discuss waiver only regarding the merits of the officers' individual liability, Opp. 13-16. (We refute that waiver contention infra pp. 8-9.) Respondents do not contest that petitioners have properly preserved the issues of municipal liability and qualified immunity.
2 Respondents never pleaded below that four previous suicides in the sixteen months preceding Clustka's April 28, 2005 suicide, Opp. 6, out of more than 24,000 jail admissions, constituted a pattern of constitutional violations, nor did they adduce
(Continued on following page)

3
The decision below accepted that argument. It effectively adopted a blanket rule that suicide risk is a recurring part of officers' duties that always requires training. That amounts to a per se rule authorizing municipal liability for any jail suicide whose symptoms police officers could have detected, even where no pattern notified the city of a need for trainmg.
The First, Fifth, Sixth, Seventh, and Eleventh Circuits stand squarely to the contrary. They reject municipal liability in similar circumstances, independent of their distinct holdings on individual liability. Cf Opp. 12 n.1, 25. Respondents do not cite a single decision in which these courts affirmed municipal liability for failure to train officers or adopt policies on suicide prevention. Instead, they quote dicta from cases whose holdings conflict with the decision below.
The Fifth Circuit has repeatedly rejected, as a matter of law, municipal liability for failure to train in similar circumstances. Detainees' right to "adequate medical care" does not require cities to train police in suicide-prevention "psychological screening." Burns v. Galveston, 905 F.2d 100, 104 (5th Cir. 1990) (affirming summary judgment). "Failure to train police officers in [suicide] screening procedures" does not "rise to the level of a constitutional deprivation."
any evidence connecting those county-jail suicides to the city's officer-training policies.

4
ld. Burns turned not on whether officers heard the suicide threat, but on a broader recognition that officers lack "the skills of . . . experienced medical professional[s] with psychiatric training." Id.; see also Whitt v. Stephens, 529 F.3d 278, 284 (5th Cir. 2008) (affirming summary judgment); Hare v. Corinth, 74 F.3d 633, 635-36, 645-46 (5th Cir. 1996) (en bane) (vacating individual liability in non-municipal-liability case).
The Seventh Circuit affirmed summary judgment for a county even where officers mistakenly discounted a drunken suicide threat as a joke. Determining whether a threat is serious "is not a judgment likely to be much assisted by special training." Boncher v. Brown, 272 F.3d 484, 488 (7th Cir. 2001) (Posner, J.). Woodward v. Correctional Medical Services, 368 F.3d 917, 928-29 (7th Cir. 2004) is inapposite. It involved failure to train medical professionals - not police -whose jobs involved suicide screening.
Likewise, the Eleventh Circuit recognized that a "suicide threat made under the influence of drugs or alcohol did not furnish jailers with reason to believe decedent was suicidal." Popham v. Talladega, 908 F.2d 1561, 1564 (11th Cir. 1990). Respondents claim that Popham turned on the jailers' failure to hear the threat, but Popham's holding was broader. It followed Harris in rejecting municipal liability for "failure to train jail personnel to screen detainees for suicidal tendencies." Id.

5
The Sixth Circuit likewise rejects municipal liability for failure to train officers to diagnose suicidal symptoms. As a matter of law, neither officers nor a city can be liable for failing to diagnose suicidal tendencies in the distressed or angry statements of a drunk arrestee. Barber v. Salem, 953 F.2d 232, 239-40 (6th Cir. 1992).3
Finally, the First Circuit holds that cities need not train officers to diagnose "intoxicated and potentially suicidal detainees." Manarite v. Springfield, 957 F.2d 953, 959 (1st Cir. 1992). While some suicideprevention policies existed in that case (Opp. 29), here too Clustka received six medical screenings pursuant to standard policy. If this case had arisen in the First Circuit, Manarite would bar recovery.
In short, five circuits have rejected municipal liability for failure to train officers or adopt suicideprevention policies. Those circuits' holdings necessarily conflict with the Ninth Circuit's per se rule authorizing municipal liability wherever a city fails to train officers to diagnose symptoms and prevent a suicide. Apart from the Third and Ninth Circuit cases
3 Cf Cooper v. Washtenaw, 222 F.App'x 459, 469 (6th Cir. 2007) (leaving open possibility of individual liability if officer actually knew inmate was on suicide watch and consciously disregarded it). Cooper did not determine whether the officer's actions might amount to a city policy; it did not substantively discuss suicide-prevention training, let alone resolve the issue. Id. at 473. And the inmate in this case had not been placed on suicide watch, which would have created actual notice.

6
(Pet. 22), respondents cite no case from these five circuits or any other that upholds municipal liability. Only this Court's intervention can resolve this entrenched, 5-2 circuit split. Pet. 23.
II. BY AUTHORIZING MUNICIPAL LIABILITY ABSENT PROOF OF A PATTERN OF VIOLATIONS, THE NINTH CIRCUIT'S HOLDING CONFLICTS WITH CITY OF CANTON v. HARRIS
"[I]nadequacy of police training may serve as the basis for §1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact." Harris, 489 U.S. at 388. Municipal liability for failure to train normally requires a pattern of employee wrongdoing, showing that city policymakers chose to disregard a "plainly obvious" "need for further training." Id. at 390 n.10; accord Bryan Cty. v. Brown, 520 U.S. 397, 409 (1997). Single-incident failure-to-train liability is exceptional and appropriate only in "a narrow range of circumstances." Id. at 409. The only example of single-incident liability this Court hypothesized was quite narrow. It involved giving police guns without teaching them about their lawful use, Harris, 489 U.S. at 390 n.10, where harm to citizens was inevitable.
The risk of injury is not comparably certain if police officers lack training to detect the risk that an arrestee will later commit suicide in jail, when there

7
are medical professionals who screen for that risk. As three concurring Justices warned, "[w]ithout some form of notice to the city, and the opportunity to conform to constitutional dictates both what it does and what it chooses not to do, the failure to train theory of liability could completely engulf Monell, imposing liability without regard to fault." Id. at 395 (O'Connor, J., concurring in relevant part, dissenting in part). Diagnosing mental illness is no part of an officer's usual duties, and there are no constitutional guideposts to direct municipalities. Id. at 395-96. Relying on medical screening, rather than training police to detect jail-suicide risk, is not deliberate indifference to harm that is "substantially certain to result." Id. at 396.
As the dissenters below stressed, the "city more than fulfilled [its] obligation" to make "psychiatric care available to" Clustka. Pet. App. 7. Medical professionals evaluated her on six separate occasions. "The city didn't fail to address the problem of inmate suicide; it failed to address the problem in the way [the majority] think[s] best." Id. at 9. Harris warned against just this type of "judicial meddling," id., as well as "an endless exercise of second-guessing municipal employee-training programs," 489 U.S. at 392; Pet. 27-28.

8
III. BY AUTHORIZING INDIVIDUAL LIABILITY, THE NINTH CIRCUIT HAS GUTTED FARMER v. BRENNAN'S ACTUALKNOWLEDGE REQUIREMENT AND QUALIFIED IMMUNITY, AS PETITIONERS HAVE CONSISTENTLY ARGUED
1. Respondents claim that petitioners waived the individual-liability merits issue by failing to "argue[] that, if they had such actual knowledge," "they lacked a duty to report suicide risks." Opp. 15, 13. They attack a straw man. Petitioners neither made that argument below nor make it now.
Petitioners did, however, advance below the same claim that they make now: evidence of notice of possible symptoms is insufficient alone to support a finding of actual knowledge and deliberate indifference. They argued that "[p]laintiffs were required to present sufficient evidence that would allow a trier of fact to conclude the officers knew Clustka was suicidal," but "[t]he undisputed facts of this case are insufficient to meet these standards" of inference required by Farmer and its progeny. Appellees' Answering Br. 31. "Plaintiffs produced no evidence that either officer actually knew Clustka was at substantial risk of serious harm. Instead, they argue only that the circumstances support an inference that they were negligent in diagnosing her condition...." Id. at 32-33. They disputed, as a matter of law, liability for an "alleged failure to recognize a prisoner's alleged heightened suicidal risk" absent direct evidence of

9
actual knowledge. Pet. Reh'g En Bane 11. That is the same claim advanced here. Pet. 34-35.
Without such knowledge, respondents seem to agree that no claim lies and no duty to report exists. See Opp. 14. Because the officers had no duty to- and did not- diagnose those symptoms, they had no duty to report them.4
2. Respondents deny that the decision below imposed a duty on law-enforcement officers to "diagnose and report detainees' symptoms of suicidal tendencies." Opp. 1. But they repeatedly insist that the officers had actual knowledge that Clustka was at genuine risk of suicide. Opp. 1-2, 12, 16-17, 23-24. Respondents embrace the Ninth Circuit's approach that one can infer actual knowledge of a current
4 The only case respondents cite is inapposite. In Zobrest v. Catalina Foothills, a party failed to argue below that a school district's policy violated the state constitution and federal regulations, brand-new sources of law never mentioned before. 509 U.S. 1, 7-8 (1993). Petitioners in Zobrest thus failed to preserve distinct claims. Here the questions presented involve the same claims under 42 U.S.C. §1983 and the Due Process Clause at issue below. See Yee v. Escondido, 503 U.S. 519, 533-35 (1992) ("Once a federal claim is properly presented, a party can make any argument in support of that claim; parties are not limited to the precise arguments they made below [or] the manner in which the question was framed below."); Harris, 489 U.S. at 383-84 (addressing on merits even party's substantial departure from position below). Furthermore, Zobrest dealt with the canon of constitutional avoidance, not waiver. 509 U.S. at 7-8. And here, the decision below expressly considered and resolved the issues. Pet. App. 10, 30-35.

10
suicide risk from awareness of possible symptoms, such as suicide threats. Despite respondents' semantic quibbling, that is tantamount to imposing a duty on police to diagnose and report jail-suicide risk.
This approach directly conflicts with Farmer. To prove deliberate indifference, plaintiffs must establish two distinct prongs. "[T]he official must both [1] be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and [2] he must also draw the inference." Farmer, 511 U.S. at 837 (emphasis added). The decision below effectively collapsed the second prong into the first one, allowing every plaintiff to defeat summary judgment and nullify Farmer by alleging knowledge based on awareness of symptoms. Here, the officers have consistently described the seatbelt incident as the manipulative actions of a belligerent drunk, not a genuine suicide attempt. Because they are not medical professionals, they could not and did not have to diagnose whether Clustka's threats were serious. As non-medical intermediaries, not charged with her ultimate custody, they did not have to diagnose or treat her. All they had to do was to bring Clustka to medical professionals for screening, which they did.
Only in exceptional cases can a factfinder "conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious." Id. at 842; e.g., Hope v. Pelzer, 536 U.S. 730, 734-35, 738 (1994) (risk obvious where officers tied inmate to hitching post, shirtless under burning sun, for seven

11
hours without bathroom breaks). An inmate's bleeding wound may reflect an obvious risk of harm, but suicidal symptoms rarely reveal such obvious risks and usually require expert medical diagnosis.
Where facts do not clearly prove the seriousness of a threat - as when a belligerent drunk threatens suicide - courts routinely grant summary judgment. Thus, awareness of a suicide threat satisfies Farmer's first prong, but does not suffice to prove that the official actually inferred a genuine suicide risk, as required by Farmer's second prong. See, e.g., Domino v. Texas Dep't Crim. Justice, 239 F.3d 752, 756 (5th Cir. 2001) (affirming summary judgment for prison psychiatrist who mistakenly discounted inmate's statement that "he'd kill himself, he wanted to die"); Bell v. Stigers, 937 F.2d 1340, 1341, 1344 (8th Cir. 1991) (affirming summary judgment despite inmate's comment to jailer: "'Well I think I'll shoot myself."'), overruled on other grounds by Farmer, 511 U.S. at 837.
This Court, in Davidson v. Cannon, rightly distinguished negligent failure to report information from deliberate indifference. 474 U.S. 344, 347-48 (1986). Officials are not deliberately indifferent where they learn of a threat but erroneously or even negligently discount its seriousness. Id. at 347-48. That is exactly what happened here.
3. The decision below conflicts with decisions of the First and Third Circuits. In those circuits, officers cannot be held liable just because they are on notice

12
of possible symptoms; they must actually know of, yet ignore, a risk. Williams v. West Chester, 891 F.2d 458, 465 (3d Cir. 1989) (rejecting liability because there was "no direct evidence" officers "actually knew" of decedent's "suicidal propensity"); Freedman v. Allentown, 853 F.2d 1111, 1113, 1117 (3d Cir. 1988) (refusing to infer actual knowledge of risk from awareness of suicidal tendencies and past attempts); see Elliott v. Cheshire, 940 F.2d 7, 9, 12 (1st Cir. 1991) (officer not liable for not passing along information about possible symptoms of suicide risk). Unlike the decision below, each of these cases put teeth into Farmer's and Davidson's actual-knowledge prong for deliberate indifference. Thus, they found no duty to report information relevant to diagnosing suicidal tendencies.
4. Respondents likewise err in claiming that petitioners have conceded causation, Opp. 13-14, which is subsumed within the questions presented. As the petition argued, "there is no basis here to find either deliberate indifference to a known risk or causation." Pet. 35. Six sets of trained medical professionals screened Clustka but could not detect a genuine suicide risk. Three of those medical screenings, two more arrests, and almost two days intervened between the seatbelt incident and the suicide. Pet. App. 7, 14-15. There is no basis for finding that petitioners' actions caused Clustka's suicide or could have prevented it.
5. Because the First and Third Circuits rejected liability in similar circumstances, qualified immunity

13
protects the officers. Pet. 36-37. They could not have understood that they were violating their duties. Each case respondents cite, Opp. 24, involved direct evidence that custodial officers at a jail knew of and affirmatively disregarded suicide risks. Snow v. Citronelle, 420 F.3d 1262, 1270 (11th Cir. 2005) (jailer told plaintiffs their daughter was suicidal but took no other action); Turney v. Waterbury, 375 F.3d 756, 76061 (8th Cir. 2004) (sheriff "personally knew [decedent] was volatile," had been told of prior suicide attempt, and affirmatively prevented intake officer from filling out suicide-screening form); Cavalieri v. Shepard, 321 F.3d 616, 619-22 (7th Cir. 2003) (after victim's mother warned officer of suicide risk and implored him to put son on suicide watch and not leave him alone, officer promised to do so but did not); Pet. App. 12-13. None involved police who entrusted arrestees to jailers and medical professionals for medical screening.
Iv. THE NINTH CIRCUIT'S HOLDING GREATLY BURDENS CITIES AND OFFICERS
The entrenched conflict among the circuits confuses cities and law-enforcement officers. Pet. 37-39. They need guidance about whether officers must serve as psychiatrists or may instead rely on medical professionals. The decision below burdens cashstrapped municipalities with novel training requirements. Amici Br. 6-17. Judge Reinhardt's opinion, left unchecked, is a "sweeping and dangerous precedent" that empowers federal judges to undermine "our tradition of local self-government." Pet. App. 16

14

(Kozinski, C.J., dissenting from denial of rehearing en bane).
--------·--------
CONCLUSION

This Court should grant the petition, or alternatively summarily reverse the decision below.

Respectfully submitted,

STEPHANOS BIBAS
NANCY BREGSTEIN GoRDON
UNIVERSITY OF PENNSYLVANIA LAW SCHOOL SUPREME
COURT CLINIC
3400 Chestnut Street Philadelphia, PA 19104 (215) 746-2297

JOHN J. KADLIC
Counsel ofRecord DONALD L. CHRISTENSEN
CITY OF RENO
Post Office Box 1900 Reno, NV 89505 (775) 334-2050 kadlicj@reno.gov
Counsel for Petitioners

August 25, 2010

 </s> '. ' .<~·.
MAR 29 2011
No. 09-1361
3Jn tbe $upreme C!tourt of tbe Wntteb $tates

CITY OF RENO, RYAN ASHTON, AND DAVID ROBERTSON,
Petitioners, v.
CHARLA CONN AND DUSTIN CONN,
Respondents.
On Petition for a Writ of Certiorari to the United States Court of Appeals for the
Ninth Circuit
SUPPLEMENTAL BRIEF FOR RESPONDENTS

TERRI KEYSER-COOPER
Counsel of Record Law Of.fice of Terri Keyser-
Cooper 3365 Southampton Drive Reno, ·Nv 89509 (775) 387-0323 keysercooper@yahoo. com

CHARLES A. ROTHFELD ANDREW J. PINCUS PAUL W. HUGHES MICHAEL B. KIMBERLY
Mayer Brown LLP 1999 K Street, NW Washington, DC 20006 (202) 263-3000

DIANE K. VAILLANCOURT Law Office of Diane K. Vaillancourt 849 Almar Ave., Ste. C403 Santa Cruz, CA 95060 (831) 458-3440

Counsel for Respondents

Blank Page

SUPPLEMENTAL BRIEF FOR RESPONDENTS
Pursuant to Rule 15.8 of the Rules of this Court, respondents submit this brief to address the impact on this case of the Court's recent decision in Connick v. Thompson, No. 09-571 (Mar. 29, 2010).
Brenda Clustka committed suicide while in the custody of the City of Reno. Respondents, Clustka's survivors, sued petitioners, two police officers who, despite hearing Clustka threaten to commit suicide and witnessing her attempt to do so, failed to report this information to subsequent custodians. They also sued the City of Reno, contending that it was deliberately indifferent for failing to train its officers to respond to suicide risks posed by persons in their custody. Reversing the district court's grant of summary judgment to the petitioners, the court below concluded that respondents presented triable questions of fact with respect to whether the individual officers were deliberately indifferent. Additionally, the court concluded that respondents presented sufficient evidence to raise triable questions as to whether the City's failure to train its police officers established municipal deliberate indifference. Br. in Opp. 3-11.
This Court's decision in Connick is wholly consistent with the decision below. Certiorari in this case therefore should be denied.
a. In Connick, the Court indicated that "a municipality's failure to train its employees in a relevant respect" may be challenged under 42 U.S.C. § 1983 when it "amount[s] to deliberate indifference to the rights of persons with whom the untrained employees come into contact." Slip op. at 9 (quotation omitted). Although "a stringent standard," "when city policymakers are on actual or constructive notice

2
that a particular omission in their training program causes city employees to violate citizens' constitutional rights, the city may be deemed deliberately indifferent if the policymakers choose to retain that program." Ibid. (quotation omitted). Accordingly, a "pattern of similar constitutional violations by untrained employees is ordinarily necessary to demonstrate deliberate indifference for purposes of failure to train." Id. at 9-10 (quotation omitted).
The claimant in Connick, however, attempted to rely on a "single-incident" theory, suggesting that a "showing of 'obviousness' can substitute for the pattern of violations ordinarily necessary to establish municipal culpability." Slip op. at 11. Although the Court noted that "unconstitutional consequences of failing to train could be so patently obvious that a city could be liable under [Section] 1983 without proof of a pre-existing pattern of violations," the Court held that a failure to train government attorneys to avoid violations of Brady v. Maryland, 373 U.S. 83 (1963), is not such a circumstance. Slip op. at 11-12.
b. Connick is consistent with the holding below because the municipal liability claim here is based on a "pattern of similar constitutional violations," and is not the sort of "single-incident" theory considered by Connick.
First, the court of appeals in this case concluded that evidence in the record demonstrates that "the City did, in fact, fail to train its officers in suicide prevention and the identification of suicide risks." Pet. App. 47. Indeed, "[t]he City of Reno has not provided any evidence to the contrary." Ibid.

3
Second, the court identified specific evidence demonstrating that there was a substantial pattern of past constitutional violations. Evidence in the record demonstrates that five other suicides occurred at the Washoe County Jail within a two-year period. Pet. App. 47. And one of the individual petitioners testified that he had "encountered between 500 and 1,000 people threatening to kill themselves" in his career. Id. at 47-48. Thus, the City's failure to train had the "highly predictable consequence" of permitting inmate suicide. Pet. App. 48.
Third, the court of appeals found that, given the evidenc:e in the record, a jury could conclude that the if the City had properly trained its officers, the individual defendants would not have been deliberately indifferent to Cluska's medical needs. Pet. App. 48. That is, had the individual defendants "been trained in suicide prevention, there is a reasonable probability that they would have responded differently and reported to the jail that Clustka was at risk of suicide, or taken her directly to the hospital." Ibid.
The court's decision below was thus premised on evidence in the record that could lead a jury to conclude that (a) the City knew that prisoners were at risk of committing suicide in the Washoe County Jail, (b) had the City adopted a training program for its police officers, it would have prevented these suicide deaths, and (c) in failing to implement such a training program, the City was deliberately indifferent.1 This is precisely the sort of liability theory the
1 The Ninth Circuit's analysis with respect respondents' argument that the City was deliberately indifferent for failing to adopt and implement policies to prevent inmate suicide was identical: "As the Conns have presented sufficient evidence of a

4

Court in Connick found could support a claim for municipal deliberate indifference. A jury must now decide these disputed questions of fact in this case based on the substantial evidence in the record.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.

TERRI KEYSER-COOPER

CHARLES A. ROTHFELD

Counsel of Record

ANDREW J. PINCUS

Law Office of Terri Keyser- PAUL W. HUGHES

Cooper

MICHAEL B. KIMBERLY

3365 Southampton Drive Mayer Brown LLP

Reno, NV 89509

1999 K Street, NW

(775) 337-0323

Washington, DC 20006

DIANE K. VAILLANCOURT

(202) 263-3000

Law Office of Diane K.

Vaillancourt

849 Almar Ave., Ste. C403

Santa Cruz, CA 95060

(831) 458-3440

Counsel for Respondents
MARCH 2010

failure to adopt and implement suicide-prevention policies so as to give rise to a jury question, the rest of our analysis mirrors that which we described above regarding the failure to train." Pet. App. 50.
--------·-·--·-····

 </s> No. 09-1361

~ MARl t 2011 l 1
~~ o- n.:-- ll c....·-·- - - .-' .,....j,.r.:.....'.......:..._..t.,T....1...K..........,

IN THE
~upreme Ql:ourt of toe Wniteb ~tates

CITY OF RENO, RYAN ASHTON, AND DAVID ROBERTSON,
Petitioners, v.
CHARLA AND DUSTIN CONN,
Respondents.
On Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit

PETITIONERS' SUPPLEMENTAL BRIEF

Stephanos Bibas

John J. Kadlic

Nancy Bregstein Gordon

Counsel of Record

UNIVERSITY OF

Donald L. Christensen

PENNSYLVANIA
LAw SCHOOL
SUPREME COURT CLINIC
3400 Chestnut Street Philadelphia, PA 19104 (215) 746-2297

CITY OF RENO
Post Office Box 1900 Reno, NV 89505 (775) 334-2050 kadlicj @reno.gov

Counsel for Petitioners

Blank Page

' , ~-.... --~ • ·-

-~--- -c~ -·~· ... _... _

1
PETITIONERS' SUPPLEMENTAL BRIEF
Pursuant to Supreme Court Rule 15.8, petitioners submit this brief to address the impact on this case of the Court's recent decision in Connick v. Thompson, No. 09-571 (Mar. 29, 2011).
Following standard procedure, six sets of medical professionals performed medical, mental-health, and suicide-prevention evaluations of arrestee Brenda Clustka in the days before her suicide at the Washoe County jail. (Respondents incorrectly state that she "committed suicide while in the custody of the City of Reno." Supp. Br. Resps. 1.) Respondents sued not the county or jail personnel, but the City of Reno and its two arresting police officers. They alleged that the city was deliberately indifferent for not training officers on the street to diagnose and report detainees' symptoms of suicidal tendencies and that the officers were individually liable for not diagnosing and reporting those symptoms. The district court granted summary judgment for petitioners. The Ninth Circuit reversed, in an opinion by Judge Reinhardt, and denied rehearing en bane over a dissent by Chief Judge Kozinski joined by six other judges. Pet. 3-15.
Like Connick, this is a single-incident failure-totrain case. This Court's decision in Connick, like the dissent below, underscores that single-incident liability should remain narrow and truly exceptional, a principle ignored by the Ninth Circuit's decision below. Although Connick's reasoning applies here, this case arises in a distinct factual context involving police rather than lawyers. Connick informs but did not resolve the circuit splits on both questions presented, which remam

2
substantial, important, and recurring. Thus, this Court should grant certiorari.
1. In Connick, this Court stressed that "[a] pattern of constitutional violations by untrained employees is ordinarily necessary to demonstrate deliberate indifference for purposes of failure to train." Slip op. at 9-10 (internal quotation marks omitted). Single-incident liability is reserved for "the possibility, however rare, that the unconstitutional consequences of failing to train could be so patently obvious" as to give notice even without "proof of a pre-existing pattern of violations." Id. at 11. A "stringent standard of fault," including a pattern requirement, is essential to keep municipal liability from "collaps[ing] into respondeat superior." Id. at 18. Reading 42 U.S.C. § 1983 more expansively would give "courts carte blanche to micromanage local governments throughout the United States." Id. at 16.
The respondent in Connick noted that during the decade before his armed robbery trial, four convictions had been reversed because prosecutors in petitioner Connick's office had violated Brady v. Maryland, 373 U.S. 83 (1963). Slip. op at 10. This Court nevertheless refused to treat those four reversals over the course of ten years as a pattern putting petitioners on notice of a need for training. Id. Moreover, respondent had not pleaded and proven a pattern of violations but rather had pursued a single-incident theory of liability. See id.
2. In the wake of Connick, respondents here attempt to shift to a pattern-or-practice theory of liability. Supp. Br. Resps. 2-3. But, as in Connick ,

3
respondents never pleaded or proved a pattern of constitutional violations by Reno's officers that might give rise to a training violation-in other words, jail suicides allegedly due to the deliberate indifference of police officers. On the contrary, they argued only that single-incident liability should lie because the need for suicide-prevention training and policies was obvious. First Am. Compl. ,64; Pls.' Opp'n Summ. J. 29-30; Appellants' Opening Br. 4748. Even their brief in opposition to certiorari does not contain the word "pattern." Respondents never pleaded below that four previous suicides in the sixteen months preceding Clustka's April 28, 2005 suicide, Opp. 6, out of more than 24,000 jail admissions, constituted a pattern of suicides-let alone a pattern of constitutional violations caused by failure to train. Nor did they ever adduce any evidence connecting those suicides at the county jail to the city's officer-training policies.
As in Connick, nothing in the record here connects those suicides to one another or makes them factually similar enough to prove a pattern attributable to the city's failure to train. Respondents erroneously claim the Ninth Circuit "identified specific evidence of a substantial pattern of constitutional violations." Supp. Br. Resps. 3. The Ninth Circuit found no such pattern, but simply marshaled evidence to show that jail suicides were "highly predictable" and thus could support singleincident liability for failure to train. Pet. App. 4748. Nowhere does its opinion use the word "pattern." Nor is suicidal-risk detection "'a relevant respect"' in which police officers, not medical personnel, require training. Supp. Br. Resps. 1

4
(quoting Connick, slip op. at 9). Connick thus rejects respondents' loosening of the pattern requirement. Id. at 3.
The decision below accepted the single-incidentliability theory. It effectively adopted a blanket rule that assessing suicide risk is a recurring part of officers' duties that always requires training even absent a pattern of constitutional violations. That amounts to a per se rule authorizing municipal liability for any jail suicide whose symptoms police officers could have detected, even where no pattern of violations notified the city of a need for training.
The 5-2 circuit split on municipal liability for failure to provide suicide-prevention training, absent proof of a pattern of constitutional violations, persists after Connick. Pet. 18-23; Pet. Reply 3-6. The issue remains an important and recurring one that requires this Court's resolution. Amicus Br. 617.
3. The second question presented and circuit split implicated in this case are not affected by Connick. That issue concerns the scope of individual officers' liability and qualified immunity for failure to diagnose and report symptoms of suicidal tendencies. Pet. 28-37.
Connick does, however, underscore the need for affirmative proof of actual causation. Slip op. at 7 n.5. As petitioners have argued, "there is no basis here to find either deliberate indifference to a known risk or causation." Pet. 35. Six sets of trained medical professionals screened Clustka but did not detect a genuine suicide risk. Three of those medical screenings, two more arrests, and almost

5

two days intervened between the seatbelt incident and Clustka's suicide. Pet. 6-10; Pet. App. 7, 14-15. There is no basis on which a jury could find that petitioners' actions caused Clustka's suicide or could have prevented it.

CONCLUSION

For the reasons set forth above and in the petition and reply brief, this Court should grant the petition; or in the alternative summarily reverse the decision below; or in the alternative grant the petition, vacate, and remand for further proceedings in light of Connick.

Respectfully submitted,

Stephanos Bibas Nancy Bregstein Gordon
UNIVERSITY OF
PENNSYLVANIA LAW
SCHOOL SUPREME
COURT CLINIC
3400 Chestnut Street Philadelphia, PA 19104 (215) 746-2297 sbibas@law.upenn.edu

John J. Kadlic Counsel of Record
Donald L. Christensen
CITY OF RENO
Post Office Box 1900 Reno,NV 89505 (775) 334-2050 kadlicj@reno.gov

Counsel for Petitioners

March 31, 2011

 </s> 591 F.3d 1081 (2009)
Charla CONN; Dustin Conn, Plaintiffs-Appellants, v.
CITY OF RENO; Ryan Ashton; David Robertson, Defendants-Appellees.
No. 07-15572.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted October 20, 2008. Filed July 24, 2009.
Amended January 8, 2010.
1084 *1084 Terri Keyser-Cooper, Reno, NV, and Diane K. Vaillancourt, Santa Cruz, CA, for the plaintiffs-appellants.
John J. Kadlic, Reno City Attorney, Donald L. Christensen, Deputy City Attorney, Reno, NV, for the defendantsappellees.
Before MARY M. SCHROEDER, DOROTHY W. NELSON and STEPHEN REINHARDT, Circuit Judges.
ORDER
The majority opinion filed July 24, 2009, slip op. 9581, and appearing at 572 F.3d 1047 (9th Cir.2009), is hereby amended as follows:
1. Slip op. at 9611, line 7: replace with
2. Slip op. at 9611, line 8: after , insert the following footnote:
The panel has voted to deny the petition for rehearing en banc.
1085 *1085 The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc reconsideration. FED. R. APP. P. 35.
The petition for rehearing en banc is denied. No further petitions for rehearing may be filed.
Chief Judge KOZINSKI, with whom Judges O'SCANNLAIN, KLEINFELD, TALLMAN, CALLAHAN, BEA and IKUTA join, dissenting from the denial of rehearing en banc.
Until this opinion came along, police officers weren't required to serve as babysitters, psychiatrists or social workers, and judges didn't run suicide-prevention programs. Responsibility for preventing suicide rested with the individual and the family, not the state. But the panel has discovered that the Constitution demands a change in job description: Judges will henceforth micromanage the police, who in turn will serve as mental health professionals. The panel's reasoning has no stopping point, and our decision to let it stand threatens unprecedented judicial intervention in our local institutions.
At bottom, this case raises the question of whether the state has a legal (as opposed to moral) obligation to provide for the health of its citizens. We have repeatedly rejected the idea that such an obligation exists. See, e.g., DeShaney v. Winnebago Cty. Dept. of Soc. Servs., 489 U.S. 189, 200, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). This is in part because the benevolent welfare state is in tension with our tradition of liberty and individual dignity: What the state provides for you, you do not provide for yourself, and as the sphere of public largesse grows, the realm of private initiative retreats. It also reflects a judgment that any redefinition of the role of the state should occur under the supervision of democratically elected officials, not unaccountable federal judges. States may obligate themselves, but they should not have novel duties thrust upon them by judicial fiat.

We have recognized an exception to this rule when the state places a person in jail, but that exception has been strictly limited by its rationale. "The affirmative duty to protect arises not from the State's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitation it has imposed on his freedom to act on his own behalf." DeShaney, 489 U.S. at 200, 109 S.Ct. 998. A prisoner cannot feed or clothe himself, and he cannot get himself to a doctor; it is therefore incumbent on his keeper to do those things for him. See, e.g., id.; Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). And, because the state creates the prisoner's conditions of incarceration, the state has a duty not to purposefully create a risk of harm0907for instance, by placing the prisoner in a cell with a person who intends to do him ill. See, e.g., Farmer v. Brennan, 511 U.S. 825, 832-33, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Apart from that rationale, there is no free-floating obligation to safeguard prisoners' health. Otherwise, the distinction between prisoners and nonprisoners would become illusory, and we would be forced to recognize a duty of care towards society as a whole.
The panel's opinion is significant because it cuts the state's obligation loose from this tether and creates novel duties to train and to report information that bear no relationship to the fact of incarceration. In the process, it strips the guts out of the deliberate indifference standard, as well as the requirement that plaintiffs show a 1086 violation of clearly established law to defeat qualified immunity. In the panel's *1086 hands, standards that are meant to limit liability to all but the most extreme cases become tools for imposing the policy preferences of unelected federal judges. This combination of errors amounts to a toxic recipe for judicial micromanagement of local institutions.
1. In a brief portion of the opinion that will nevertheless have far-reaching consequences, the panel finds the City of Reno potentially liable for failure "to train its officers in suicide prevention and the identification of suicide risks." Conn v. City of Reno, 572 F.3d 1047, 1063 (9th Cir.2009). To avoid liability under our federal Constitution, police departments throughout the Ninth Circuit must now transform their police officers into suicide prevention experts. This novel holding creates a clear inter-circuit split and is irreconcilable with the standard for liability fashioned by the Supreme Court in City of Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989).
When ordinary citizens go about their business, they are not monitored by experts in suicide prevention. If you or I waltz up to a government employee0907perhaps a mail man, dog catcher or meter maid 0907and announce, "today's a good day to kill myself," the Constitution does not guarantee that our chosen confidant will be a Sigmund Freud or Jacques Lacan. If we want to see a psychiatrist, we have to go see a psychiatrist. We certainly don't have a right to expect that every public servant we encounter will be specially trained to cater to our mental health needs.
According to the panel, citizens who are arrested fall into a different and more ratified class. When Brenda Clustka announced her suicidal thoughts to the officers sent to arrest her, she had the right to an audience trained in "suicide prevention and the identification of suicide risks." Conn, 572 F.3d at 1063. Indeed, the failure to provide that audience was "the functional equivalent of a decision by the city itself to violate the Constitution." Harris, 489 U.S. at 395, 109 S.Ct. 1197(O'Connor, J., concurring in part and dissenting in. part). But why? What constitutional penumbra turns the bench of a paddy wagon into a psychoanalyst's couch?
Plaintiffs are not the first litigants to seek to impose such a novel and dangerous duty, but other courts have steadfastly rejected similar claims. Manarite v. City of Springfield, 957 F.2d 953, 959 (1st Cir. 1992) (rejecting claim that city was liable for failing to provide "training and education... in suicide detection and prevention"); Colburn v. Upper Darby Twp., 946 F.2d 1017, 1029-30 (3d Cir.1991) (rejecting claim that jail was liable because it "failed completely to formally train its staff in signs and symptoms of suicide," including "instruction to take all suicide threats seriously") (emphasis omitted); Popham v. City of Talladega, 908 F.2d 1561, 1564-65 (11th Cir.1990) (no liability for "failure to train jail personnel to screen detainees for suicidal tendencies"); Burns v. City of Galveston, 905 F.2d 100, 104 (5th Cir.1990) (no liability for "[f]ailure to train police officers in screening procedures geared toward detection of detainees with suicidal tendencies"); see also Harris, 489 U.S. at 396-97, 109 S.Ct. 1197 (O'Connor, J., concurring in part and dissenting in part) ("The claim in this case0907that police officers were inadequately trained in diagnosing the symptoms of emotional illness 0907 falls far short of the kind of `obvious' need for training that would support a finding of deliberate indifference....").

What Clustka surely did have was a right of access to medical treatment; because Clustka could not take herself to the doctor, the city had an obligation to make psychiatric care available to her. See Estelle, 429 U.S. at 103, 97 1087 S.Ct. 285. The *1087 city more than fulfilled that obligation. Right before her arrest, Clustka was evaluated by a team of medics. At intake, she was examined by a nurse who received annual training in suicide prevention. She was then held in a detoxification cell that was regularly monitored by jail staff and nurses. After discharge, she was arrested a second time and brought by police to an emergency room, where she was seen by a physician. And when she was arrested a third time, she was booked into the mental health unit of the jail, which is managed by a licensed social worker and staffed around the clock. When Clustka committed suicide, she was scheduled to meet with a psychiatric nurse later that day. And there is no reason to think that Clustka would have been denied additional care if she had requested it.
Other circuits have rejected claims that the Constitution requires the kind of routine intake screening that was provided by the City of Reno. See Colburn, 946 F.2d at 1029-30; Popham, 908 F.2d at 1564; Burns, 905 F.2d at 104. Rightly so: Such screening may be laudable, but it also provides a benefit that prisoners could not reasonably expect to receive if they had not been arrested. The measures taken by the city therefore went far beyond anything the Constitution could conceivably require.
Against the backdrop of the city's efforts, the panel's holding that the city could be found deliberately indifferent is remarkable. "[F]ar from demonstrating deliberate indifference to the mental health needs of ... potentially suicidal detainees,... the policies implemented by the City[of Reno] demonstrate an effort to ensure the safety of persons like decedent." Manarite, 957 F.2d at 960; see also Liebe v. Norton, 157 F.3d 574, 579 (8th Cir.1998) ("[T]he County's policy cannot be both an effort to prevent suicides and, at the same time, deliberately indifferent to suicides."). The panel isn't just saying that the city has to be aware of and take steps to address the problem of suicide. The city plainly did that, and more. The panel is saying that the act of employing professionals to examine and care for inmates' mental health won't suffice; the city has a duty to enlist police officers as trained suicide-prevention experts. And, more broadly, the city is obliged to run its suicide prevention program in whatever manner unelected federal judges think best.
This is precisely the kind of micromanagement of local law enforcement that the Supreme Court has instructed us to avoid. See Hams, 489 U.S. at 392, 109 S.Ct. 1197. The Court in Harris was clear that deliberate indifference means more than negligence, and that a high bar to liability is necessary to forestall "an endless exercise of second-guessing municipal employee-training programs"0907both because federal judges are "illsuited" to such a role and because excessive judicial intervention would "implicate serious questions of federalism." Id.
As an example of conduct that might satisfy the deliberate indifference standard, the Court therefore pointed to a total abdication of constitutional responsibility: A city that armed its police but failed to train them in the use of deadly force. Id. at 390 n. 10, 109 S.Ct. 1197. This is hardly that kind of case. The city didn't fail to address the problem of inmate suicide; it failed to address the problem in the way my colleagues think best. If that is enough to give rise to liability, I can't imagine what local institution is safe from judicial meddling, or what if anything is left of our tradition of local self-government.
2. In another troubling portion of the opinion, the panel holds that clearly established law required the officers 1088 transporting *1088 Clustka to report any suicide threats made en route to jail. Conn, 572 F.3d at 1062. On that
basis, the panel withholds qualified immunity. Id.
To see why the panel's holding is remarkable, consider the context in which these defendants acted. The officers did not take Clustka to the hospital after the events in question, but they did take her to a prison where they knew she would be seen upon arrival by a nurse trained in detecting and preventing suicide risks. They did not tell the nurse what Clustka said after being arrested, and the care that Clustka received may have been less effective as a result. But the officers did not withhold psychiatric care or actively interfere with Clustka's treatment. Their alleged fault was in failing to pass on information that would be relevant to routine psychiatric screening that the city should not be required to provide in the first place. The panel's denial of qualified immunity in these circumstances means that officers can no longer leave the treatment of medical issues to trained medical professionals. Instead, they must actively assist those professionals by providing any information potentially

relevant to a diagnosis. I doubt such a duty exists, and I certainly don't think it exists under clearly established law.
Once again, if ordinary citizens threaten suicide in front of a government employee be 0907 it a tax collector, tollbooth operator or member of the judiciary0907they have no constitutional right to have those statements communicated to their families or their doctors. Our Constitution does not turn government officials into the eyes and ears of the American Medical Association. So why should it be any different for citizens lucky enough to go to jail? It's true that prisoners can't take themselves to the doctor, Estelle, 429 U.S. at 103, 97 S.Ct. 285, but the officers here took Clustka to a place where she was seen by a medical professional trained in suicide prevention. After the officers put Clustka in the same (or better) position than she occupied before she was arrested, what in our federal Constitution required anything more? I can't imagine any answer that would not apply with equal force to those of us not in jail.
Our prior cases have rightly declined to acknowledge such a duty to assist. In Wood v. Housewright, we rejected a prisoner's claim that prison officials violated his constitutional rights by failing to provide his medical records to medical professionals. 900 F.2d 1332, 1334 (9th Cir. 1990). Judge Reinhardt argued in dissent that failure to provide information constitutes deliberate indifference because "treatment can ... best be prescribed if records are available for review," id. at 1343 (Reinhardt, J., dissenting in part), just as he reasons today that, although Clustka received medical care, her diagnosis "was never made by someone who had all the requisite information about her psychological instability," Conn, 572 F.3d at 1060 (emphasis omitted). In Wood, a majority of the panel disagreed. See 900 F.2d at 1334 (Farris, J.); id. at 1336 (Hug, J., concurring). "Although Wood's treatment was not as prompt or efficient as a free citizen might hope to receive, Wood was given medical care at the prison that addressed his needs." Id. at 1334 (Farris, J.); see also Ruvalcaba v. City of Los Angeles, 167 F.3d 514, 525 (9th Cir.1999) (prison doctor's failure to take patient's medical history, although negligent, did not support finding of deliberate indifference). That was correct then, and it remains correct today.
Despite this contrary precedent from our own court, the panel reverses the district court's grant of qualified 1089 immunity. Conn, 572 F.3d at 1062. Of course, the cases the panel cites to show a violation of *1089 clearly
established law demonstrate nothing of the kind. The only Ninth Circuit case, Cabrales v. County of Los Angeles, involved a claim for "medical under-staffing at the jail," such that "psychiatric staff could only spend minutes per month with disturbed inmates." 864 F.2d 1454, 1461 (9th Cir.1988). And in Colburn, although a suicidal inmate was held in prison without any medical attention whatsoever (including no medical screening at intake), the Third Circuit found the officers not liable for their failure to provide access to medical care. 946 F.2d at 1025. Both cases are miles away from this one, and Colburn supports the defendants rather than the plaintiffs.
The closest case is Cavalieri v. Shepard, 321 F.3d 616(7th Cir.2003), but it doesn't support the panel's conclusion either. In that case, a police officer assured an arrestee's mother that her son would not be left alone while in jail but failed to pass that information on to the son's custodians. Id. at 622. The Seventh Circuit emphasized that the mother might "have gone directly to the [jail] if she had known that [the officer] did not intend to inform anyone of their conversation." Id. By contrast, Clustka's family never asked these individual defendants for help, and they never promised to give it. The only obligation they incurred when they took Clustka into custody was to ensure that incarceration did not deprive her of the care that she otherwise could have obtained for herself. See DeShaney, 489 U.S. at 200, 109 S.Ct. 998. The officers fulfilled that obligation.
Cities and police should be entitled to assign responsibility for the treatment of mental illness to trained medical professionals; certainly, the Constitution should not forbid such a division of responsibility. But the panel holds to the contrary: From here on out, police must become active participants in the treatment of mental illness. And, unable to rely on the shield of qualified immunity, police will wait with trepidation to see what other novel duties courts shift onto their shoulders. This will exact a cost: As police devote time and energy to judicially-imposed obligations, they will have less time and attention to devote to preventing crime, protecting their own safety and avoiding other types of constitutional violations. These are precisely the kinds of trade-offs that should be evaluated by elected officials, and not by federal judges who lack expertise and local knowledge and who do not represent the people directly affected by such decisions.
3. In yet another alarming portion of the opinion, the panel holds that a jury could find that the officers' failure to relay information on April 26 was the actual and proximate cause of Clustka's suicide on April 28. Conn, 572 F.3d

at 1058-62. The panel's lax approach to causation dismantles yet another barrier to judicial intervention in local affairs.
With respect to "actual" cause, we simply don't know what would have happened had the officers reported Clustka's statements to the jail. The prison's health services administrator testified that the intake nurse would have considered the statements along with "a variety of variables" when assessing Clustka's mental health needs. We therefore can't know whether Clustka would have received additional care, or whether that care would have been effective. The best the panel can say is that "Clustka's suicide might well have been prevented" by "intervention [that] would likely have occurred." Id. at 1060 (emphasis added). This falls far short of showing that, "but for" the officers' omission, Clustka would not have committed suicide. White v. Roper, 901 F.2d 1501, 1505 (9th Cir.1990).
1090 As for proximate cause, any conceivable connection between the officers' omission *1090 and Clustka's suicide is far too attenuated to support liability. Two full days passed between Clustka's statements and her suicide. In the interim, Clustka was "served with a Temporary Protective Order (`TPO'), which her mother had earlier sought" and which "ordered Clustka to stay away from her mother's residence." Conn, 572 F.3d at 1053. Clustka was also arrested twice, at least once because her own mother called police, rather than a doctor, "to report that Clustka was causing a disturbance." Id. And her mother wasn't the only one who passed up a chance to keep Clustka from taking her life. Clustka was taken to the hospital, where she was examined by a physician and then released. And she was seen by two intake nurses trained in suicide prevention.
The requirement of causation0907like the deliberate indifference standard and the doctrine of qualified immunity0907limits the ability of judges to micromanage local institutions. See Harris, 489 U.S. at 391-92, 109 S.Ct. 1197. So long as they are limited to errors that actually caused plaintiffs' injuries, judges sit to decide concrete cases and do not superintend entire programs and institutions. But, if judges can draw attenuated causal connections of the sort at issue in this case, they can expand their authority to encompass a much larger sphere of activity. Any mistake by local officials, no matter how remote its consequences, will become a federal case, and no corner of local activity will remain beyond judicial authority. The Butterfly Effect becomes an engine for judicial intervention. This may appeal to federal judges, who undoubtedly believe they know how to run local law enforcement far better than police and local officials, but it should make everyone else very uncomfortable.
* * *
Untethered from the need to explain why the state should owe any affirmative obligations to its citizens, and unconstrained by qualified immunity, causation and the deliberate indifference standard, judges will henceforth be free to intrude on the most minute aspects of local decisionmaking. The Constitution will have become a "`federal good government act' for municipalities," Harris, 489 U.S. at 396, 109 S.Ct. 1197 (O'Connor, J., concurring in part and dissenting in part), and little will be left of our tradition of local self-government. Second-guessing suicideprevention measures designed by local officials, and turning police into psychiatrists' assistants, will be just the beginning of this brave new world of rule by judiciary. This is a sweeping and dangerous precedent, and we severely undermine the autonomy of local governments by failing to correct the error through our en banc process.
OPINION
REINHARDT, Circuit Judge:
This story has no happy ending, and it was unhappy long before the events in question transpired. For years before she ultimately committed suicide in the Washoe County Jail, Brenda Clustka ("Clustka") struggled with alcohol abuse and serious mental health problems, including suicidal ideation. The longevity of her struggle and the persistence of her problems, however, do not absolve the defendants if they were deliberately indifferent to her serious medical need and as a result played a causal role in her death.

While transporting Clustka to civil protective custody, two Reno police officers witnessed her wrap a seatbelt around her neck in an apparent attempt to choke herself and then scream that they should kill her or else she would kill herself. The officers failed to report the incident to jail personnel or take her to a hospital. Clustka was 1091 released from protective custody a *1091 few hours later. The next day, she was again detained on a misdemeanor charge. During this second detention, less than 48 hours after the suicide threats, Clustka hanged herself in her cell.
When an individual is taken into custody and thereby deprived of her liberty, the officials who hold her against her will are constitutionally obligated to respond if a serious medical need should arise. If, with deliberate indifference, these officials fail to respond appropriately and instead act in a manner that will foreseeably result in harm, they violate her due process rights. The same is true when a municipality, with deliberate indifference, fails to train its law enforcement officers or fails to adopt and implement policies when it is highly predictable that such inaction will result in constitutional violations.
We hold that, on the facts presented, a reasonable jury could find that the defendant police officers are liable under 42 U.S.C. § 1983 for their deliberate indifference to Clustka's serious medical need, and that their actions were a cause in fact and a proximate cause of her suicide. Likewise, a jury could find the City of Reno liable for its failure to train its law enforcement officers or to implement policies on suicide prevention and reporting. For these reasons, and as explained further below, we reverse the district court's grant of summary judgment in favor of the defendants and allow Clustka's surviving children to bring their claims before a jury.
I. BACKGROUND
A.
Petitioners Charla and Dustin Conn ("the Conns") are the surviving children of Brenda Clustka, who committed suicide on April 28, 2005 while in custody and awaiting trial at the Washoe County Jail.
Clustka had long struggled with mental health problems and suicidal ideation. She also had a history of repeated encounters with the law: she had multiple misdemeanor convictions, including for domestic violence, larceny, and driving under the influence. Between 2001 and 2004, Clustka was involuntarily committed to the Nevada Mental Health Institute ("NMHI") on three separate occasions under a Legal 2000[1] for threatening or attempting suicide. Her mental health further deteriorated in 2005.
On March 19, 2005, Clustka was arrested for domestic battery of her mother. Officer Ashton ("Ashton"), one of the defendants in this case, was present during the arrest. Once in custody, Clustka stated that she "[wouldn't] make it in jail" and was placed on prison suicide watch. She was detained for just over one month and released on April 21, 2005.
A few days later, on April 25, 2005, Clustka relapsed into suicidal ideation. She was taken to Washoe Medical Center where she threatened to commit suicide in the emergency room by overdosing on her medication. Clustka was evaluated as suffering from "acute suicidal ideation" and transferred to NMHI on a Legal 2000. Her NMHI intake assessment states that she was at "serious risk of harm." At 9:06 a.m. the next morning, however, Clustka was medically evaluated and released. According to the evaluating doctor, Clustka denied that she had any suicidal thoughts; she said she was "feeling `tired' but otherwise well" and was assessed to be only at a "low risk of harm" at the time of discharge.
1092 *1092 Several hours later on April 26, 2005, at 2:43 p.m., Ashton and his co-defendant, Officer Robertson ("Robertson"), were dispatched in response to a 911 call, which reported that someone, who turned out to be Clustka, was passed out on the sidewalk. The officers found Clustka in a "grossly intoxicated" state; she "had a difficult time walking without assistance." Ashton, who had been one of the arresting officers handling the domestic battery call a month earlier, recognized Clustka on sight. The officers decided to take Clustka to Washoe County Jail on Civil Protective Custody ("CPC") for her own safety until she sobered up. They ran a "wants and warrants check" and were cautioned of Clustka's "violent tendencies, [that she was] known to abuse

drugs,[was an] alcoholic [and had] other mental health problems." Ashton admitted that he was aware of Clustka's violent tendencies and mental health problems; nevertheless, the defendants chose not to handcuff her because she was being detained for her own protection, not on a criminal charge.
Clustka did not want to be taken to jail; she became agitated and uncooperative when told where she was going. Robertson then told Clustka, falsely, that they would take her, instead, to her residence. Robertson testified that he lied because Clustka was belligerent, and because he wanted to cajole her into the paddy wagon cooperatively, which he succeeded in doing.
En route to the jail, with her hands free, Clustka removed her seatbelt. She began walking around the back of the paddy wagon and tapping on the video surveillance camera to get the officers' attention. According to Ashton, he asked Robertson if they should pull over to secure Clustka in her seat, but Robertson decided against it, as they were near the jail and he wanted to avoid any further confrontation. Both officers believed that there was a Reno Police Department policy and a state law requiring the wearing of seatbelts.
As they neared the jail, Clustka realized where she was being taken and became angry, belligerent, and uncooperative. As Ashton observed her through the surveillance camera, Clustka returned to her seat and wrapped the seatbelt around her neck, in an apparent attempt to choke herself. The officers pulled over, unwrapped the seatbelt from her neck, and handcuffed her. Clustka was screaming as they did so. She yelled something to the effect of, "You lied to me. Just kill me. I'll kill myself then."
Both Ashton and Robertson testified that they interpreted Clustka's words and actions as a mere attempt to get their attention and "to manipulate the situation," and that they did not believe Clustka's threats to be serious. However, Ashton admitted that he did not believe that wrapping the seatbelt around her neck was a "joke." Ashton, who had been on the police force for only seven months, remembered asking Robertson, a nearly eighteen-year veteran, whether he should write up a report on the incident, but that Robertson said no. Robertson testified that he "told [Ashton] if he wanted to report it, he could report it." Ashton testified that he was unaware of any written policy mandating the reporting of such incidents.
When they arrived with Clustka at the jail, neither defendant notified jail personnel that Clustka had tried to choke herself or that she had threatened to commit suicide. Instead, Ashton told jail personnel that Clustka was disoriented. The defendants did not write a report nor inform their supervising sergeant about the incident that day. Both asserted that it did not occur to them to report it.
Upon arrival at the jail, Clustka underwent a brief intake assessment, was held in CPC at the Washoe County Jail 1093 for *1093 nearly four hours, and was released without further inquiry around 8:00 p.m. Upon her release, she was
served with a Temporary Protective Order ("TPO"), which her mother had earlier sought and obtained on account of domestic battery. The TPO ordered Clustka to stay away from her mother's residence, where she had been living, and to retrieve her personal belongings only in the company of police officers. There is no indication whether any other place was available where Clustka would be able to sleep.
That evening, notwithstanding the TPO, Clustka returned to her mother's house, and her mother called 911 to report that Clustka was causing a disturbance. Clustka, again grossly intoxicated, was taken to the emergency room, readmitted for observation, and released around 3:00 a.m.
The next day, on April 27, 2005, Clustka again returned to her mother's residence to collect her belongings and was arrested by two officers (not defendants) for violating the restraining order. She was returned to Washoe County Jail.
After Clustka was booked, she was medically screened by the nurse on duty and recommended for assignment to the general inmate population. Because Clustka had been on suicide watch during her previous detention in March, she was placed in the mental health unit in a red jumper to alert staff that she was a high risk detainee. She was not, however, placed on suicide watch at this time. As a result there was a bed sheet available in her cell.
The following morning, on April 28, 2005, Clustka was escorted to and from her video arraignment. On the way back from the arraignment, at 8:35 a.m., she became upset and started crying because she wanted to make a

phone call. At 9:17 a.m., she did not respond to the roll call. A deputy went to check on her and immediately called a Code 50.[2] Clustka had committed suicide by hanging herself with the bed sheet.
The morning of Clustka's suicide, Ashton happened to be present at the Washoe County Jail on an unrelated matter. He recognized Clustka's photograph and told a prison deputy that "she tried to choke herself out in the back of the wagon on Tuesday." Ashton explained to another deputy that a few days earlier, he had transported Clustka to CPC0907without handcuffs0907and that "she tried to hang herself in the wagon." He stated that his more senior partner had declined to document the incident. Ashton said that he would now write up a report and predicted that his "sergeant will be pissed."
B.
From January 2004 through August 2005, six detainees in Washoe County Jail committed suicide. Clustka's suicide followed less than 30 days after that of another detainee.
On May 11, 2005, less than one month after Clustka's suicide, the Reno Police Department, apparently for the first time, presented a class on "handling the mentally ill" to better explain the Legal 2000 procedures. In May 2005, a new suicide prevention policy was implemented. At intake, the arresting officer must now answer a series of questions concerning the detainee's mental health, including questions about suicide risk. This policy was not adopted until after Clustka's death.
C.
1094 After Clustka committed suicide, her surviving children, the Conns, filed suit in *1094 the District of Nevada under 42 U.S.C. § 1983. They sued Officers Robertson and Ashton for deliberate indifference to Clustka's serious medical need0907her suicide risk0907which, they alleged, resulted in her death. They also sued the City of Reno under § 1983 for, inter alia, its failure to train its law enforcement officers and to implement policies on suicide prevention and reporting. The district court found that the Conns had presented insufficient evidence to raise a genuine issue of material fact as to whether the officers were deliberately indifferent to a serious medical need by failing to report the choking incident and suicide threat and whether such failure to report was the proximate cause of Clustka's death. Consequently, the district court concluded that there was no basis on which a jury could find either individual liability or municipal liability and granted the defendants' motion for summary judgment. The Conns appeal, and we reverse.
II. STANDARD OF REVIEW
We review a grant of summary judgment by the district court de novo. McDonald v. Sun Oil Co., 548 F.3d 774, 778 (9th Cir.2008). We examine all evidence in the light most favorable to the non-moving party, id.; Fed.R.Civ.P. 56, and "do[ ] not weigh the evidence or determine the truth of the matter, but only determine [ ] whether there is a genuine issue for trial," Balint v. Carson City, 180 F.3d 1047, 1054(9th Cir.1999) (en banc). "A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party." Long v. County of Los Angeles, 442 F.3d 1178, 1185(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). If such is the case, "summary judgment will not lie." Anderson, 477 U.S. at 248, 106 S.Ct. 2505.
III. DISCUSSION
A. Individual Liability
The Eighth Amendment protects inmates from cruel and unusual punishment, which includes the denial of medical care. Estelle v. Gamble, 429 U.S. 97, 102-03, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). Pretrial detainees, by

contrast, are protected under the Due Process Clause of the Fourteenth Amendment. Or. Advocacy Ctr. v. Mink, 322 F.3d 1101, 1120 (9th Cir.2003). Although courts have borrowed from Eighth Amendment jurisprudence in giving shape to pretrial detainees' substantive due process rights, see Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir.1998), that amendment establishes only "a minimum standard of care," Mink, 322 F.3d at 1120 (emphasis in original).[3]
The Eighth and Fourteenth Amendments both guarantee that inmates and detainees receive constitutionally adequate medical and mental health care. Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir.1994). An official's deliberate indifference to a substantial risk of serious harm to an inmate 0907including the deprivation of a serious medical need0907violates the Eighth Amendment, and a fortiori, the Fourteenth Amendment. Farmer v. Brennan, 511 U.S. 825, 828, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994); Frost, 152 F.3d at 1128. To set forth a constitutional 1095 claim *1095 under the Eighth Amendment predicated upon the failure to provide medical treatment,
[f]irst, the plaintiff must show a "serious medical need" by demonstrating that "failure to treat a prisoner's condition could result in further significant injury or the `unnecessary and wanton infliction of pain.'" Second, the plaintiff must show the defendant's response to the need was deliberately indifferent.
Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir.2006) (internal citations omitted). The second prong requires both "(a) a purposeful act or failure to respond to a prisoner's pain or possible medical need and (b) harm caused by the indifference." Id. Deliberate indifference thus requires an objective risk of harm and a subjective awareness of that harm. Farmer, 511 U.S. at 837, 114 S.Ct. 1970. We address these requirements0907serious medical need, indifference to that need, and harm caused by that indifference 0907each in turn.
1. "Serious medical need"
We recognize that a prisoner has a "serious" medical need if the failure to treat the condition could result in further significant injury or the "unnecessary and wanton infliction of pain." Doty, 37 F.3d at 546(citing McGuckin, 974 F.2d at 1059). A heightened suicide risk or an attempted suicide is a serious medical need. See id. (citing Torraco v. Maloney, 923 F.2d 231, 235 & n. 4 (1st Cir.1991)); see also Colburn v. Upper Darby Twp., 946 F.2d 1017, 1023 (3d Cir.1991) ("A `particular vulnerability to suicide' represents a `serious medical need.'").
The district court did not decide whether summary judgment would be appropriate on the issue of serious medical need, although it commented that the evidence suggested that "Clustka's medical needs ... were not objectively serious enough to find a 14th Amendment violation." We disagree. The Conns presented sufficient evidence of their mother's objective, serious medical need for a reasonable jury to find in their favor.
First, the significance of Clustka's medical evaluations around the time of the choking incident and suicide threat is disputed and presents a question for the jury. It is true that Clustka underwent several medical evaluations in the days before and after she tried to choke herself in the paddy wagon, and that only one of these evaluations found her to be at serious risk of harm. The defendants argue that, for this reason, the evaluations establish that Clustka did not present a serious health risk. Their interpretation, however, is not conclusive; rather, the conflict in the evaluations in itself raises a genuine issue of fact for the jury to resolve. Moreover, due to the police officers' failure to report the choking incident and suicide threat, Clustka's evaluators were unaware of those events when they assessed Clustka's mental health, and their conclusions were drawn in the absence of significant information that would have supported the Conns' position.
Second, Clustka's long and undisputed history of mental health problems, alcohol and substance abuse, and suicide threats and attempts0907including suicidal ideation the day before the incident in the paddy wagon 0907supports the conclusion that the threat to Clustka's health was objectively serious, and that if untreated, she was likely to suffer further significant injury.
Third, the choking incident, accompanied by Clustka's threat to kill herself, constituted adequate objective evidence of a serious medical need. Although Ashton conceded that Clustka was not joking when she wrapped the seatbelt around her neck, the defendants attempt to minimize the seriousness of Clustka's situation by

1096 characterizing her threats as "manipulative" as 0907 an attempt to catch the officers' *1096 attention and to avoid going to jail. The members of the jury, however, are entrusted with the responsibility to weigh the officers' interpretation of the events against other reasonable inferences more favorable to the plaintiffs. The events may appear differently to the jury than they purportedly did, in hindsight, to Ashton and Robertson. To the jury, that Clustka attempted to choke herself with a seatbelt and screamed at the defendants that they should kill her or she would kill herself may, by itself, be sufficient to establish her serious medical need. This is particularly so since the Conns presented evidence that suicide threats by detainees must always be taken seriously.
The defendants contend that, even if Clustka truly intended to harm herself, there was no genuine possibility that she would have succeeded in killing herself in the paddy wagon. The defendants argue, rather callously, that the seatbelt would have slackened if and when she passed out, and that Clustka was therefore at no real risk of dying. This, of course, is beside the point. Whether Clustka's life was in danger en route to the jail does not affect the more important question whether Clustka was at a heightened risk of killing herself in the near future, as she ultimately did0907a heightened risk that itself presents a serious medical need. It is not necessary, moreover, that a serious medical need imminently result in death0907an attempted suicide is sufficient. See Doty, 37 F.3d at 546 (citing Torraco, 923 F.2d at 235 & n. 4).
An objective juror could certainly conclude that in light of all the circumstances Clustka's actions evidenced a serious medical need. The defendants' attempts to cast doubt on the gravity of Clustka's words and actions merely create a fact question for the jury to resolve. We conclude, therefore, that the Conns have raised a genuine issue of material fact as to the question of serious medical need.
2. "[D]efendant's response to the need was deliberately indifferent"
To demonstrate the second prong0907deliberate indifference0907plaintiffs must show that the officers were (a) subjectively aware of the serious medical need and (b) failed to adequately respond. Farmer, 511 U.S. at 828, 114 S.Ct. 1970.
a. Subjective awareness
To be liable under the Eighth Amendment for denial of medical treatment to a detainee, an official must "know[] of and disregard[] an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer, 511 U.S. at 834, 837, 114 S.Ct. 1970. In other words, the official must demonstrate a subjective awareness of the risk of harm.
Ashton and Robertson do not dispute that they witnessed Clustka wrapping a seatbelt around her neck and yelling that she wanted to die. Rather, they assert that they did not believe Clustka's actions to be a "serious" threat or attempt of suicide. Put in Farmer's terms, they contend that they did not "draw the inference," id., that Clustka was genuinely at risk despite being "aware of facts from which the inference could be drawn," id. According to the officers, Clustka's actions seemed to them an attempt at manipulation. Once she realized that she was being transported to jail, Clustka tapped repeatedly on the surveillance camera to get the officers' attention but received no response. By wrapping the seatbelt around her neck, they explain, she was merely 1097 resorting to more dramatic measures to get the officers' attention, stop the *1097 paddy wagon, and avoid going to jail. The officers, moreover, recall discounting the seriousness of her actions on account of her state of intoxication. They also argue that Clustka could not have succeeded in killing herself because the seatbelt would have slackened around her neck once she passed out, thus her threat of suicide could not have been serious.
We may not affirm the district court's grant of the defendants' motion for summary judgment, however, simply on the basis of the defendants' assertions as to their own state of mind. Proof of "subjective awareness" is not limited to the purported recollections of the individuals involved. "Whether [an] official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence." Farmer, 511 U.S. at 842, 114 S.Ct. 1970. Indeed, in certain circumstances, "a factfinder may conclude that [an] official knew of a substantial risk from the very fact that the

risk was obvious." Id. (internal quotations omitted). Here, there is sufficient circumstantial evidence to create a genuine issue of fact regarding defendants' subjective awareness of Clustka's serious medical need.
First, the Conns have presented evidence from which the jury could conclude that Clustka's medical need was so obvious that Ashton and Robertson must have been subjectively aware of it, despite their later denial of that awareness. Clustka attempted to choke herself with a seat belt and screamed something to the effect of "kill me or I'll kill myself"; these are warning signs that are difficult for any observer to miss. The officers, moreover, admittedly knew that Clustka was mentally unstable and that she was undergoing a particularly stressful time. Clustka's detail report0907which the officers requested and reviewed 0907cautioned: "violent tendencies, known to abuse substances, alcoholic, and other mental health problems." The report also indicated that Clustka's mother had obtained a restraining order against her. A reasonable jury could conclude that the officers' knowledge of Clustka's mental and emotional instability, coupled with their observation of her dangerous behavior, in fact produced a subjective awareness that Clustka was at acute risk of harm and suffered a serious medical need.
Second, the Conns offer circumstantial evidence to explain why the officers might have failed to report the incident even if they were subjectively aware of Clustka's medical need. Both officers believed that failing to handcuff Clustka while transporting her, and failing to fasten her into her seat belt once she unbuckled it, were violations of policy.[4] Had they reported the incident, they would have had to report their own misconduct. A jury could reasonably conclude that the officers had a motive for remaining silent.
Finally, Ashton's comments both during and after the incident in the paddy wagon establish a genuine question of fact regarding his subjective awareness of the seriousness of Clustka's condition as 0907 well as his discomfort with the way in which he and Robertson handled the situation. Ashton recalls telling Robertson at the time of the incident that Clustka "was trying to choke herself." The next day 0907 the day before Clustka committed 1098 suicide0907Ashton approached a senior officer expressing his discomfort with what had *1098 transpired. Later, when Ashton found out about Clustka's suicide, he told one deputy that Clustka had "attempted to choke herself" in the paddy wagon. A second deputy reported the following conversation:
[Ashton] stated that "she looked out the back window and once she realized she was coming to Parr [the prison] she tried to hang herself in the wagon." He stated that he was "new" and therefore asked his (unidentified) partner and senior officer if they needed to write a report regarding the suicide attempt. He stated that his partner declined the idea of documenting this occurrence, therefore he did not.
(emphasis supplied). Ashton went on to say that he would write a report and that his "sergeant will be pissed." These statements0907both contemporaneous and after-the-fact0907could support a reasonable jury's conclusion that Ashton, at least, was subjectively aware of Clustka's serious medical need. That he brought his concerns to Robertson's attention is a factor to consider with respect to whether Robertson was also subjectively aware of the problem.
We hold that, cumulatively, the above evidence is sufficient to create a material issue of fact on the question of the subjective awareness of both officers. This is particularly so because "questions involving a person's state of mind are generally factual issues inappropriate for resolution by summary judgment." Mendocino Envtl. Ctr. v. Mendocino County, 192 F.3d 1283, 1302 (9th Cir.1999) (quotation and internal alterations omitted). We, of course, "may not make credibility determinations or weigh conflicting evidence." Bator v. Hawaii, 39 F.3d 1021, 1026 (9th Cir.1994). We must leave the question of subjective awareness to the jury.
b. "Failure to respond"
The officers did not take Clustka to the Medical Center, nor did they report her behavior to jail personnel or to their supervising sergeant; they did not even write an incident report on the day that Clustka tried to choke herself. The defendants do not argue that, if we find that the officers were subjectively aware of Clustka's serious medical need, they nonetheless responded appropriately. The defendants are not, therefore, entitled to summary judgment on the ground that the officers responded adequately to the situation presented.

3. "[H]arm caused by the indifference"
The question of causation is closer. We are satisfied, nonetheless, that the Conns presented sufficient evidence of actual and proximate causation to defeat summary judgment and give rise to a jury question whether the officers' omissions caused Clustka's eventual suicide.
a. Cause in fact
The officers' failure to report the choking incident and suicide threat "is the actual cause of [the] injury only if the injury would not have occurred `but for' that conduct." White v. Roper, 901 F.2d 1501, 1505 (9th Cir.1990) (citing W. Prosser & W. Keeton, The Law of Torts [hereinafter "Prosser & Keeton"] § 41, at 266 (5th ed.1984)). "The requisite causal connection can be established not only by some kind of direct personal participation in the deprivation, but also by setting in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury." Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir.1978). The Conns contend that had the officers responded appropriately to her attempted choking and suicide threat, 1099 Clustka would not have committed suicide at the time she did and that the officers' failure to respond set in *1099 motion a sequence of events in which Clustka did not receive the medical treatment she urgently needed. We agree that the Conns have presented sufficient material evidence on cause in fact such that a jury could reasonably find in their favor.
The Conns argue that, had the officers properly responded to the choking incident and threat of suicide in either of two ways, they would have prevented her suicide less than 48 hours later. In support of this assertion, they presented expert testimony to establish the appropriate procedures for handling detainees who threaten suicide 0907 procedures that were not followed here. Based on this testimony, the Conns assert that first, the officers could have properly taken Clustka directly to the hospital under a Legal 2000 procedure and reported the incident to hospital staff. Second, the officers could have continued on to the jail and reported the incident to jail personnel upon their arrival. At that point, jail personnel would have either (1) rejected Clustka at the door and sent her to the hospital, since the jail cannot provide medical treatment during civil protective custody; or (2) admitted her and placed her under suicide watch until she was detoxified, then evaluated her and sent her to the hospital under a Legal 2000. According to the plaintiffs, under either of these procedures Clustka would have received timely suicide intervention services by trained medical personnel who had full information about her most recent suicide attempt. At this point, she would have been kept in the hospital for up to 72 hours or would have, in some other way, received appropriate services in response to her acute risk of suicide.
Defendants counter that the outcome of either of these procedures "amount[s] to mere speculation." They point to the fact that on two occasions, including on April 26, Clustka was evaluated at the emergency room and released soon thereafter without being transferred to a psychiatric facility. On three occasions between 2001 and 2005 when Clustka was transferred to NMHI, she did not stay there longer than a day. Defendants note that each time a patient is seen at the emergency room, the medical evaluation is based solely on the patient's psychological state at that moment. Because Clustka did not physically harm herself while in CPC on April 26, there is reason to think that she was no longer suicidal at the moment she was released. Consequently, had she been evaluated by medical staff at the prison or hospital at that time, even had the medical staff been fully informed of the choking incident and suicide threat, she may well have been released from the jail or from the emergency room without further intervention. Finally, defendants argue that even if the officers had notified jail or hospital personnel of Clustka's actions and she had been flagged as a suicide risk, if she had been released on April 26(from either CPC or the emergency room), the information about the choking incident and suicide threat would not have been passed along to the jail intake personnel when Clustka was detained the next day on the misdemeanor charge; therefore, she would not have been put on suicide watch or treated any differently than she was.[5] The jail keeps minimal documentation regarding CPC detainees0907apparently for privacy reasons 0907since 1100 these detainees have not been charged with a crime and are merely *1100 in custody for their own protection. As a result, there is an information gap between CPC and the criminal detention facilities at the jail, and mental health information about CPC detainees will generally be inaccessible if those individuals are later detained on a

criminal charge. When, after being released on April 26, Clustka was picked up the next day on a misdemeanor charge, unless the same intake nurse was on duty as on the day before, it is likely that no one at the jail would have known that she had been flagged as a suicide risk in CPC the previous day, and her treatment would have been no different.
When presented to the jury, the defendants' argument may well succeed. It is not, however, sufficient to warrant judicial determination of causation as a matter of law. The defendants' argument rests on the questionable assumption that knowledge of Clustka's second suicide threat in two days, if reported upon her arrival at the jail or at a hospital, would not have raised an alarm for medical personnel such that Clustka would have received more precautionary treatment than she otherwise did. It presupposes, moreover, that any such treatment would have been ineffective and that, regardless, the subsequent events would have occurred when they did. It makes little sense, however, to argue that the failure to provide access to suicide prevention services has no causal effect on a suicide that transpires less than 48 hours later. If suicide intervention is expected to have no impact on whether someone attempts suicide, why would the City ever bother with the Legal 2000 procedure? Suicide prevention services are designed to assess the patient and release her only after a determination that she is no longer at risk. In Clustka's case, this determination was never made by someone who had all the requisite information about her psychological instability at the time. A jury could reasonably find that the defendants' failure to report critical information rendered the subsequent medical evaluations ineffectual. Clustka's suicide might well have been prevented by effective medical intervention0907such as holding her on a Legal 2000 for up to 72 hours0907but that intervention would likely have occurred only if the crucial information about the choking incident and suicide threat were known by the persons making the necessary determinations.
We cannot affirm the grant of a motion for summary judgment where, as here, each side has garnered substantial evidence in support of its position, and important facts, including the proper intake procedures for an intoxicated, suicidal detainee, remain in dispute. The Conns have presented evidence that knowledge of Clustka's suicide attempt and threat of future suicide would have made a difference in her medical evaluation, treatment and supervision. We construe that evidence in the light most favorable to the Conns. McDonald, 548 F.3d at 778. There need only be "evidence in the record to support the inference that if medical staff had evaluated [Clustka], prevented [her] from entering the jail, and directed [her] to a mental hospital [Clustka] almost certainly would have received the care [s]he needed, rather than face conditions that worsened [her] outlook." Gibson, 290 F.3d at 1190. As the Conns have met their burden, we will leave the jury to its proper function of assessing the weight and credibility of that evidence as well as that presented by the defendants. See Bator, 39 F.3d at 1026.
b. Proximate cause
"Once it is established that the defendant's conduct has in fact been one of the causes of the plaintiff's injury, 1101 there remains the question whether the defendant should be legally responsible for the injury." *1101 White, 901
F.2d at 1506 (citing Prosser & Keaton, § 42 at 272-73). The officers' conduct "is not the proximate cause of [Clustka's] alleged injuries if another cause intervenes and supersedes[their] liability for the subsequent events." Id. (quoting Restatement (Second) of Torts §§ 440-53 (1965)). However, "foreseeable intervening causes ... will not supersede the defendant's responsibility." Id. (citing Prosser & Keeton, § 44 at 303-04) (emphasis added). If "reasonable persons could differ" over the question of foreseeability, "summary judgment is inappropriate and the question should be left to the jury." Id.
Where defendant's actions are a "moving force" behind a series of events that ultimately lead to a foreseeable harm, defendant is not relieved of liability on account of the intervening acts. See id; see also Duffy, 588 F.2d at 743; Cabrales v. County of Los Angeles, 864 F.2d 1454 (9th Cir.1988), vacated, 490 U.S. 1087, 109 S.Ct. 2425, 104 L.Ed.2d 982 (1989), reinstated, 886 F.2d 235 (9th Cir.1989). In White, defendant prison guards tried to force the plaintiff into a violent inmate's cell; the plaintiff resisted, attempted to run, and subsequently suffered injury from the guards. 901 F.2d at 1503. We held that the defendants' actions were a "moving force" behind the plaintiff's attempt to run and that, because it was foreseeable that the plaintiff would resist entering the cell, his attempt to run was not an intervening cause. Id. at 1505-06. In Cabrales, which involves municipal rather than individual liability, an inmate made a suicidal gesture while in isolation, after which prison officials released him to

the general jail population. Cabrales, 864 F.2d at 1457. Subsequently, he got into a fight and was subjected to ten days in isolation, during which time he committed suicide. Id. We held that the County's inadequate provision of psychiatric care was a "moving force" behind the suicide. Id. at 1461. Similarly, a jury could reasonably find that the officers' failure to respond to Clustka's suicidal actions was a "moving force" behind her suicide.
Defendants argue that two principal intervening causes of Clustka's suicide supersede whatever responsibility they might otherwise have had for causing her death. First, they argue that because Clustka was medically evaluated three times after the choking incident and suicide threat and each time determined not to be at risk of suicide, her suicide could not have been caused by the officers' failure to report it. We disagree. At none of the three examinations, two of which were cursory jail admission screenings, was potential suicide a cause for or the subject of the review. When medical examiners have insufficient information about the patient they are diagnosing, they are likely to give an inaccurate diagnosis. By failing to report Clustka's choking and threat of suicide, the officers rendered these reviews of little value. More important, by doing so, they foreseeably undermined her access to effective medical evaluations and adequate mental health care. A jury could reasonably conclude that notwithstanding the subsequent uninformed medical reviews, the failure to take action following the incident in the paddy wagon was a moving force and proximate cause of Clustka's suicide.
Second, defendants argue that Clustka's subsequent arrest and detention on a misdemeanor charge was an intervening stressor that directly caused the suicide, breaking the chain of causation. Again, however, plaintiffs have presented sufficient material evidence to raise a jury question on the issue of foreseeability. Even if she had not been detained again, it was clear from the officers' direct observations of Clustka and from her detail report 1102 that she was mentally unstable, that she *1102 suffered from alcohol and substance abuse, and that she was having family troubles that exacerbated these problems. In these circumstances, an incident that would further destabilize her0907whether detention or some other similar intervening force 0907was entirely foreseeable.
Construing all the evidence in the light most favorable to the Conns, McDonald, 548 F.3d at 778, we conclude that they have presented sufficient evidence of foreseeability that the question of proximate cause must be decided by a jury.
B. Qualified immunity
We next assess whether summary judgment is warranted because the defendants are entitled to qualified immunity. We apply a two-part inquiry: First, did the defendants' actions violate the Constitution? Second, if so, was the right violated clearly established? Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001); Pearson v. Callahan, ___ U.S. ___, ___, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009) (holding the "sequence set forth [in Saucier ] is often appropriate" but not mandatory). Having determined that there is a question for the jury on the first prong, we consider whether we should nonetheless affirm the grant of summary judgment at this stage because the constitutional rights at issue have not been clearly established. This second inquiry "must be undertaken in light of the specific context of the case, not as a broad general proposition...." Saucier, 533 U.S. at 201, 121 S.Ct. 2151. "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id. at 202, 121 S.Ct. 2151. Officers are entitled to qualified immunity if they reasonably misapprehend how the law would govern in their particular situation. Id at 205, 121 S.Ct. 2151.
Qualified immunity is not warranted here. It is clearly established that the Eighth Amendment protects against deliberate indifference to a detainee's serious risk of suicide. See Cabrales, 864 F.2d 1454; Cavalieri v. Shepard, 321 F.3d 616, 621 (7th Cir.2003); Colburn, 946 F.2d at 1023. When a detainee attempts or threatens suicide en route to jail, it is obvious that the transporting officers must report the incident to those who will next be responsible for her custody and safety. Thus, the constitutional right at issue here has been clearly established. Nevertheless, for the same reason that we cannot determine at summary judgment whether a constitutional violation occurred, a grant of summary judgment to either party with regard to qualified immunity would be inappropriate.

C. Municipal liability
Under Monell, a municipality is a legal "person" subject to liability under § 1983 for injuries it inflicts through deliberate indifference. Monell v. Dep't of Social Servs. of City of N.Y., 436 U.S. 658, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Municipal liability may be established on account of the city's deliberate acts or omissions; liability under the theory of respondeat superior, however, is insufficient to support a § 1983 violation. Id. at 691, 98 S.Ct. 2018; Gibson, 290 F.3d at 1185-86. Municipal liability for a failure to act requires a showing "(1) that a [municipal] employee violated the plaintiff's constitutional rights; (2) that the [municipality] has customs or policies that amount to deliberate indifference; and (3) that these customs or policies were the moving force behind the employee's violation of constitutional rights." Long v. County of L.A., 442 F.3d 1178, 1186 (9th Cir.2006) (citing 1103 Gibson, 290 F.3d at 1193-94). Because we have denied the defendants' motion for summary judgment on *1103 the constitutional claims against Robertson and Ashton, the first prong has been met for the purposes of summary judgment here as well.
The Conns seek to establish municipal liability on account of four separate omissions: (1) failure to train; (2) failure to adopt and implement policies; (3) failure to address Officer Robertson's deficient performance; and (4) failure to discipline. We consider each of these claims in turn.
1. Failure to Train
"Only where a failure to train reflects a `deliberate' or `conscious' choice by a municipality ... can a city be liable for such a failure under § 1983." City of Canton v. Harris, 489 U.S. 378, 389, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). Deliberate indifference by the municipality may be established where "a violation of federal rights may be a highly predictable consequence of a failure to equip law enforcement officers with specific tools to handle recurring situations." Long, 442 F.3d at 1186(quoting Bd. of County Comm'rs v. Brown, 520 U.S. 397, 409, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997)).
Under this standard, the Conns have established a genuine issue of fact for the jury on the question of the City of Reno's failure to train. First, they have provided substantial evidence in the form of deposition testimony that before Clustka's suicide the City did, in fact, fail to train its officers in suicide prevention and the identification of suicide risks. The City of Reno has not provided any evidence to the contrary.
Second, plaintiffs have provided evidence that officers predictably face situations where they must assess and react to suicide risks in order to prevent grave harm to people under their protection. Suicide is a leading cause of death in American prisons, Shevon L. Scarafile, "Deliberate Indifference" or Not, 51 Vill. L.Rev. 1133, 1133-34 & n.4 (2006), and Clustka's suicide was one of six in less than two years at the Washoe County Jail. While police officers are not prison guards, they are the first law enforcement officials to deal with detainees 0907and they do so in highly stressful situations. Robertson testified that over the course of his career, he has encountered between 500 and 1,000 people threatening to kill themselves. Police officers frequently take mentally ill detainees to the hospital on Legal 2000s. The failure to train officers on how to identify and when to report suicide risks produces a "highly predictable consequence": that police officers will fail to respond to serious risks of suicide and that constitutional violations will ensue.
Finally, plaintiffs have made an adequate showing that, had the City trained its officers, the violation of Clustka's constitutional rights could have been avoided. For a policy to be a moving force behind the violation of a constitutional right, the failure of the policy or omission must be "closely related to the ultimate injury." Gibson, 290 F.3d at 1196(quoting Canton, 489 U.S. at 391, 109 S.Ct. 1197). Here, Robertson and Ashton believed that they had the discretion not to report the choking incident and suicide threat in the paddy wagon. Had they been trained in suicide prevention, there is a reasonable probability that they would have responded differently and reported to the jail that Clustka was at risk of suicide, or taken her directly to the hospital.
For these reasons, plaintiffs have presented sufficient evidence to establish a genuine issue of fact with respect to municipal liability for failure to train. Because the City failed to train its police officers in suicide prevention, a

reasonable jury could find that the City's "customs or policies ... amount to deliberate indifference;" and because 1104 Ashton and Robertson, *1104 who never received such training, failed to respond appropriately by reporting the
incident in the paddy wagon, there is sufficient evidence for a reasonable jury to find "that these customs or policies were the moving force behind the employee[s'] violation of constitutional rights." Long, 442 F.3d at 1186. "[W]hether a local government has displayed a policy of deliberate indifference to the constitutional rights of its citizens is generally a jury question." Gibson, 290 F.3d at 1194-95. We are compelled to deny the motion for summary judgment on municipal liability for failure to train.
2. Failure to Adopt and Implement Policies
Plaintiffs also challenge the lack of an official, written policy on suicide prevention. "This Court consistently has found that a county's lack of affirmative policies or procedures to guide employees can amount to deliberate indifference, even when the county had other general policies in place." Long 442 F.3d at 1189.
The Conns assert0907and appear to be correct0907that there was no written policy on reporting suicide threats at the time of Clustka's suicide,[6] although there were written policies regarding the Legal 2000 procedure. The absence of any written policy is supported by the fact that neither Robertson nor Ashton was disciplined for failing to report Clustka's suicide threat, although each received negative comments about the incident in their annual evaluation. Post-event evidence, such as this, is admissible to prove the absence of a municipal defendant's policy or practice. Henry v. County of Shasta, 132 F.3d 512, 520 (9th Cir.1997).
Shortly after Clustka's suicide, moreover, the City implemented a new suicide prevention policy. At intake in the jail, the arresting officer must now fill out a form answering a series of questions concerning the detainee's mental health, including questions about suicide risk. This is further evidence that as of April 26, 2006 no such policy had been adopted and implemented.[7]
As the Conns have presented sufficient evidence of a failure to adopt and implement suicide-prevention policies so as to give rise to a jury question, the rest of our analysis mirrors that which we described above regarding the failure to train. Given the predictability of suicide risk among detainees, and the likelihood of constitutional violations if suicide threats go unreported, the plaintiffs have presented a genuine issue for the jury on whether the failure to adopt and implement policies on suicide prevention was deliberately indifferent, and whether that deliberate indifference was a "moving force" behind the violation of Clustka's constitutional rights.
3. Failure to address the deficient performance of Officer Robertson
Whatever Robertson's on-the-job weaknesses may have been, there is no evidence in the record that the municipality should have known0907or did know0907that Robertson would be likely to show deliberate indifference in circumstances such as these. Moreover, the causal link between the City's failure to address his deficient performance in other aspects of his job and his failure to respond appropriately here is tenuous at best. 1105 Accordingly, we *1105 affirm the grant of summary judgment on this issue.
4. Failure to discipline
Robertson and Ashton were not disciplined in any way for their misconduct in failing to report the choking incident and suicide threat. They each received some negative comments about their handling of the situation in their annual reports, written by their supervising sergeant.
A failure to discipline is not a separate ground for establishing municipal liability. Rather, it is evidence that tends to establish the absence of or failure to enforce a policy on suicide prevention. We will therefore affirm the district court's grant of summary judgment on this issue as well, without commenting on the admissibility of the particular evidence regarding the two officers for the purpose described above.

IV. CONCLUSION
Clustka's surviving children have presented sufficient evidence to survive summary judgment on the large majority of the claims brought under § 1983. On the basis of the evidence presented by the Conns, the jury could reasonably find that Clustka demonstrated a serious medical need when she attempted to choke herself with a seatbelt in the paddy wagon and threatened to kill herself; that Ashton and Robertson were deliberately indifferent to that medical need; and that their indifference was a factual and proximate cause of Clustka's death. On the basis of the Conns' evidence, a jury could also reasonably determine that the City of Reno's failure to train its law enforcement officials and implement written policies on suicide prevention constituted deliberate indifference and were, independently, a moving force behind Ashton and Robertson's violation of Clustka's constitutional rights.
We therefore reverse the district court's grant of the defendants' motion for summary judgment with respect to individual and municipal liability, with the exception that we affirm the grant of summary judgment with respect to the City's failure to address Robertson's deficient performance and its failure to discipline the individual officers. The case is remanded to the district court for further proceedings consistent with this opinion.
REVERSED and REMANDED.
[1] A Legal 2000 is a procedure under Nevada law whereby people suffering from mental illness or who may be a danger to themselves or others may be involuntarily committed to a mental health facility for up to 72 hours.
[2] Code 50 is a jail response when an inmate attempts suicide. Officers and medical personnel rush to the scene.
[3] Because here, the Conns prevail under the Eighth Amendment deliberate indifference standard, we need not further explicate in this case the more lenient but more amorphous test under the Fourteenth Amendment that has been suggested by our case law. See, e.g., City of Revere v. Mass. Gen. Hospital, 463 U.S. 239, 244, 103 S.Ct. 2979, 77 L.Ed.2d 605 (1983); Youngberg v. Romeo, 457 U.S. 307, 321-22, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982); Gibson v. County of Washoe, 290 F.3d 1175, 1188 n. 9 (9th Cir.2002); Mink, 322 F.3d at 1120, 1121 n. 11 ; Jones v. Blanas, 393 F.3d 918, 934 (9th Cir.2004).
[4] It appears that this belief was not well-founded, and that the defendants may not have violated policy after all. That, however, is irrelevant; what matters is that the officers believed their actions violated policy and that they may have feared that the policy violation would be discovered.
[5] The jail already was aware that a month earlier, Clustka had been put on suicide watch at the prison and that she had a history of mental health problems. For that reason she was placed in the mental health unit. Nonetheless, without the information about her most recent suicide attempt/threat, she was not placed on suicide watch on April 27, 2005.
[6] Deputy Chief Johns was "not sure" if there was a written policy requiring officers to report suicide threats.
[7] The evidence of the new policy is admissible solely as evidence of the absence of an earlier policy and not for the purpose of proving negligence or culpable conduct of any kind. See Fed.R.Evid. 407.
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 </s> City of Reno, Nev. v. Conn, 131 S.Ct. 1812 (Mem) (2011)
131 S.Ct. 1812 Supreme Court of the United States CITY OF RENO, NEVADA, et al., petitioners,
v. Charla CONN, et al. No. 09–1361. | April 4, 2011.
Case below, 591 F.3d 1081.
Opinion

On petition for writ of certiorari to the United States Court of Appeals for the Ninth Circuit. Petition for writ of certiorari granted. Judgment vacated, and case remanded to the United States of Court of Appeals for the Ninth Circuit for further consideration in light of Connick v. Thompson, 563 U.S. ––––, 131 S.Ct. 1350, ––– L.Ed.2d –––– (2011).
Parallel Citations
179 L.Ed.2d 769, 78 USLW 3670, 79 USLW 3015, 79 USLW 3564, 79 USLW 3566
	
  

1


[CONTENT] April 28, 2005 | Brenda Jean Clustka | Washoe County ||| November 3, 2005 | two | the District of Nevada | Howard D. McKibben | the City of Reno | Nevada | two | the Reno Police Department ||| Clutska ||| Clutska ||| Clutska | the City of Reno ||| the Fourteenth Amendment | 42 | 1983 | Clutska ||| 42 | 1983 | the City of Reno |||  ||| First Amended Complaint | December 12, 2005 | Clustka ||| August 29, 2006 | § | 1983 | Clustka ||| Clustka | Clutska | 1983 ||| March 8, 2007 ||| the 9th Circuit Court of Appeals ||| July 24, 2009 | the 9th Circuit ||| Conn v. City of Reno | 572 | 1047 | 9th | 2009 ||| The 9th Circuit | Stephen Reinhardt | Mary M Schroeder | Dorothy W. Nelson | under 42 | 1983 | Clustka ||| the United States Supreme Court ||| their May 6 | 2010 | the Ninth Circuit's | § | 1983 | the Ninth Circuit ||| April 4, 2011 | the Supreme Court | the Ninth Circuit | Connick | 131 | S.Ct | 1350 | 2011 ||| the Supreme Court | 1983 ||| the Ninth Circuit ||| September 6, 2011 | the Ninth Circuit ||| Conn v. City of Reno | 658 | 897 | D. ||| two ||| six-day | March 7, 2012 ||| March 13, 2012 |||  ||| one | the Ninth Circuit ||| Brenda Clustka | the Ninth Circuit | that day ||| March 14, 2012 | approximately three hours |||  |||  ||| September 19, 2012 |||  ||| fifty percent |||  [SUMMARY] On April 28, 2005, Brenda Jean Clustka died by suicide while inside her cell at the Washoe County jail. On November 3, 2005, her daughter and administrator of the estate, represented by two civil rights lawyers, brought a complaint in the District of Nevada (Judge Howard D. McKibben) against the City of Reno, Nevada and two officers of the Reno Police Department.  The plaintiff alleged that the defendants performed, participated, aided and/or abetted in acts that led to the death of Ms. Clutska.  

The plaintiff alleged that the police officers escorting Ms. Clutska to the jail did not report her apparent earlier attempt to commit suicide while in the back of their police van. The plaintiff brought this action against the police officers for not putting Ms. Clutska on suicide watch and against the City of Reno for not properly training its police officers to deal with this type of situation. The plaintiff alleged a violation of the Fourteenth Amendment and 42 U.S.C. § 1983 on the part of the police officers for abridging Ms. Clutska's right to be free from deliberate indifference to risk of suicide. The plaintiff also brought a separate cause of action under 42 U.S.C. § 1983 against the City of Reno for failing to properly train its police officers with respect to their obligation to report suicide attempts by detainees. Plaintiff sought declaratory that these acts were illegal and unconstitutional, injunctive relief, compensatory damages, and punitive damages for these alleged violations. A First Amended Complaint, filed on December 12, 2005, added the estate and Clustka's son as plaintiffs in addition to the daughter.

On August 29, 2006 the defendants, moved for summary judgment, claiming that the plaintiffs could not establish a §1983 claim because they could not show that Ms. Clustka was an objectively serious suicide risk while in custody and that the officers failed to take appropriate steps to protect her. The court agreed that the evidence was insufficient as a matter of law to establish that the defendants were deliberately indifferent to Clustka's serious medical needs, or that the conduct of the defendants was the actual cause of Clutska's harm sufficient to constitute liability under §1983.  The district court granted the motion for summary judgment and awarded judgment in favor of the defendants on March 8, 2007.

The plaintiffs then appealed to the 9th Circuit Court of Appeals.  On July 24, 2009 the 9th Circuit reversed and remanded the case. Conn v. City of Reno, 572 F.3d 1047 (9th Cir. 2009).  The 9th Circuit (Judge Stephen Reinhardt, Judge Mary M Schroeder, and Judge Dorothy W. Nelson) held that a reasonable jury could find that the police officers were liable under 42 U.S.C. § 1983 for their deliberate indifference to Clustka's serious medical need, and that their actions were a cause in fact and a proximate cause of her suicide.

The defendants petitioned for a writ of certiorari in the United States Supreme Court.  In their May 6, 2010 petition, the defendants argued that the Ninth Circuit's decision exacerbated a circuit split over §1983 municipal liability for not training law-enforcement officers to diagnose suicide risk, and that the Ninth Circuit created a new circuit split by erroneously imposing on officers a constitutional duty to diagnose and report suicidal tendencies.  On April 4, 2011 the Supreme Court granted certiorari, vacated the judgment, and remanded the case to the Ninth Circuit for further consideration in light of <i>Connick v. Thompson</i>, 131 S.Ct. 1350 (2011). In <i>Connick</i>, the Supreme Court addressed the liability of a district attorney's office for its prosecutors on a failure-to-train theory under § 1983.

On remand and in consideration of <i>Connick</i>, the Ninth Circuit found that the district court had been correct to hold that the municipality was not liable. On September 6, 2011, the Ninth Circuit reinstated its original opinion except for the part on municipal liability. Conn v. City of Reno, 658 F.3d 897 (D. Nev. 2011). On the district court level, the case then proceeded to trial against the two police officers only. 

After a six-day jury trial, with proceedings beginning March 7, 2012, the jury found in favor of the officers. On March 13, 2012, the plaintiffs had objected to the qualified immunity jury instruction:<blockquote>The jury instruction objected to asks "whether the officers reasonably misapprehended how the law would govern their situation.'' This is a legal question and one the Ninth Circuit has decided. Should the jury find that the officers were indeed deliberately indifferent to the serious medical needs of Brenda Clustka, then there can be no qualified immunity because the Ninth Circuit found that law clearly established, and the officers cannot have reasonably misapprehended it.</blockquote>The court denied the objection during the trial proceedings that day. On March 14, 2012, the jury deliberated for approximately three hours before returning a verdict in favor of the defendants. Judgment was entered in favor of the defendants and against the plaintiffs. 

A small amount of litigation occurred after trial over the defendants' awards for costs. In an order of September 19, 2012, the court found that as the defendants prevailed on all claims, they were entitled to an award of all allowable costs. In response to the plaintiffs' argument that the court should deny costs because of the plaintiffs' indigency and the the fact that it was a case of substantial public importance, effecting an immediate change in the way suicide threats were handled locally. Considering these circumstances, the court adjusted the costs to reflect the plaintiffs' economic circumstances and the desire not to chill future plaintiffs from bringing actions raising substantial constitutional issues, reducing the costs awarded to the defendants by fifty percent. The case is now closed.