Gracia v. Napier ( 2023 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 . 9 Daniella Marie Gracia, No. CV-20-00451-TUC-LCK 10 Plaintiff, ORDER 11 v. 12 Chris Nanos, Ofelia Dorsey, and William Grimsey, 13 14 Defendants. 15 Pending before the Court is Plaintiff Gracia's Motion for Summary Judgment with 16 accompanying statement of facts (Docs. 85-88) and Defendants' Motion for Judgment on 17 the Pleadings and Motion for Summary Judgment with accompanying statement of facts 18 (Docs. 94-95). The parties have filed responses and replies to the motions. (Docs. 100- 19 05.) Gracia also filed two additional attachments and a notice of errata. (Docs. 107-09.) 20 The Court heard oral argument on the motions on May 1, 2023, and took the motions 21 under advisement. (Doc. 110.) The Court finds it most expeditious to address all of the 22 claims under the summary judgment standard, rather than ruling on Defendants' request 23 for judgment on the pleadings as to specific claims. After review of the briefs and the 24 evidence submitted, and considering the parties' oral arguments, the Court grants 25 summary judgment in Defendants' favor as to all claims. 26 SUMMARY JUDGMENT STANDARD 27 In deciding a motion for summary judgment, the Court views the evidence and all 28 reasonable inferences therefrom in the light most favorable to the party opposing the 1 motion. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Eisenberg v. Ins. 2 Co. of N. Am., 815 F.2d 1285, 1289 (9th Cir. 1987). Summary judgment is appropriate if 3 the pleadings and supporting documents "show that there is no genuine issue as to any 4 material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. 5 Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Material facts are those 6 "that might affect the outcome of the suit under the governing law." Anderson, 477 U.S. 7 at 248. A genuine issue exists if "the evidence is such that a reasonable jury could return 8 a verdict for the nonmoving party." Id. 9 FACTS1 10 No one disputes that Plaintiff Gracia was brought to the Pima County Adult 11 Detention Center (PCADC) in the early hours of October 21, 2019. On that day, 12 Defendant Grimsey was a corrections sergeant working as a shift supervisor until 6:30 13 a.m. (Doc. 86, Ex. 11 at 6-7.) An October 28 report found Gracia's blood alcohol content 14 (BAC) was .219, based on testing of her blood drawn shortly before her arrival at 15 PCADC. (Doc. 95, Ex. C at 2, 13.) 16 At an unknown time, Nurse Joyce Dower documented in a Healthcare Receiving 17 Screen, that Gracia reported experiencing flair ups with sciatica due to an accident "years 18 ago." (Doc. 86, Ex. 4 at 019.) There is no evidence Defendants had notice of this 19 information. The PCADC initial intake form states that Gracia went through a metal 20 detector and was given a pat search. (Id. at 032.) Defendant Corrections Officer Ofelia 21 Dorsey testified that Gracia reported having back pain just before Dorsey conducted the 22 23 1 The Court compiled all of the facts presented by either party to the extent they were relevant and supported by the cited portions of the record. In Gracia's Controverting 24 Statement of Facts, in response to Defendants' Motion for Summary Judgment, Gracia cites to her Amended Complaint, which Defendants attached as an exhibit to their 25 Statement of Facts. Because the Amended Complaint is unverified, Gracia cannot rely upon it as evidence to oppose a motion for summary judgment. Moran v. Selig, 447 F.3d 26 748, 759 (9th Cir. 2006). However, because Gracia's factual assertions in the Amended Complaint are treated as judicial admissions, they are binding on Gracia with respect to 27 Defendants' motion for summary judgment. Am. Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 226 (9th Cir. 1988). Additionally, in the briefing Gracia refers to a Plaintiff's expert 28 (Doc. 104 at 8); however, no expert report was cited in, or attached to, Gracia's statement of facts. 1 pat down. (Id. at 011, 032-33.) Defendant Dorsey observed that Gracia reacted as if she 2 was in significant pain when Dorsey touched her gently on her back, and Dorsey found 3 the response to be exaggerated. (Id. at 011-12.) 4 Defendant Dorsey documented in writing that Gracia "refused to obey orders, very 5 sarcastic and refused to dress out at first. Almost ended up strapped to a chair." (Id. at 6 032; Doc. 95, Ex. E at 22-23.) The officer testified similarly that Gracia was angry at 7 times, and, during the dress-out process, her behavior was erratic, she was argumentative, 8 and she did not want to cooperate. (Doc. 95, Ex. E at 13, 15, 46.) Gracia attested that she 9 was cooperative during the dress-out process and made no verbal threats to any staff 10 members. (Doc. 86, Ex. 16 ¶¶ 2, 10.) Gracia was placed in a holding cell. (Doc. 95, Ex. B 11 at 23-24, Ex. E at 14-15.) 12 At 4:20 a.m., Summer Berry, a mental health professional, documented that Gracia 13 refused to answer questions from her. (Doc. 95, Ex. H at 20-23, Ex. J at 19.) On a 14 Suicide/Self-Injury Risk Assessment, Berry noted that Gracia was uncooperative, 15 nonresponsive to questions, and hostile. (Doc. 86, Ex. 4 at 023-24, 026.) After being told 16 she could be placed in the most restrictive environment for lack of participation, staff 17 reported that Gracia took off her shirt, dropped her pants, and yelled at Berry, but did not 18 answer screening questions. (Id. at 024; Doc. 95, Ex. B at 24, Ex. H at 23, Ex. J at 19.) At 19 4:21 a.m., Berry placed Gracia on suicide watch due to her being uncooperative and 20 unable to ensure her own safety. (Doc. 86, Ex. 4 at 044.) In contrast, Gracia declared that 21 she did not refuse to answer any questions from medical staff, she was not a danger to 22 herself or others at any point, and she made no statements indicating she was suicidal. 23 (Doc. 86, Ex. 16 ¶¶ 8-9.) 24 The Pima County Sheriff's Department Corrections Bureau Standard Operating 25 Procedures state that a new arrestee placed on suicide watch may remain in intake or be 26 moved to the Mental Health Unit (MHU); however, if inmates need to be placed in a 27 holding cell "to control their activity," they will be taken to the MHU. (Doc. 86, Ex. 6, 28 D5SD.000188-89 ¶¶ 5, 6(5).) Berry testified that an inmate on suicide watch may remain 1 at intake if they are following directives. (Doc. 86, Ex. 5 at 44-45.) The decision to move 2 an inmate to the MHU is made by medical staff and the Intake Sergeant. (Doc. 86, Ex. 6, 3 D5SD.000188-89 ¶ 5(1).) Defendant Grimsey testified that Gracia had to be transferred 4 to the MHU because she was already in a holding cell when she was placed on suicide 5 watch, and a 5-minute suicide watch cannot be conducted on a detainee in an intake 6 holding cell. (Doc. 95, Ex. I at 9-10, Ex. E at 51.) Defendants Dorsey and Grimsey 7 escorted Gracia to the MHU. (Doc. 86, Ex. 3 at 18.) Corrections officers are directed to 8 document on a log the activities of a detainee on suicide watch. (Doc. 86, Ex. 6 at 9 D5SD.000187 ¶ 3(2).) 10 When a detainee is taken to the MHU, a more extensive search is required, 11 including a Body Cavity Inspection (BCI). (Doc. 95, Ex. E at 30, 51, Ex. I at 9.) A BCI 12 will be conducted for inmates that are not attending an initial court appearance, will be 13 moved to housing prior to an initial appearance, and those transferred to housing from the 14 ID Unit. (Doc. 86, Ex. 9 at D1SD.000014 ¶ V(A)(7)&(8).) Defendant Grimsey testified 15 that there are no policies allowing an alternative to the BCI for a person unable to 16 complete it. (Doc. 86, Ex. 11 at 20-21.) Defendants averred that a BCI may vary and 17 "should be tailored to the circumstances presented to ensure safety of all involved." (Doc. 18 86, Ex. 8 at 2 ¶ 1.) 19 Defendant Dorsey took Gracia into the shower area with another female officer, 20 Erica McShea, while Defendant Grimsey stayed behind a partition. (Doc. 95, Ex. 3 at 30, 21 41.) PCADC policy details the substance of a BCI at that facility, and includes that the 22 person "squat down and cough several times. . . . stand up and bend forward at the waist 23 and spread their buttocks." (Doc. 86, Ex. 9 D1SD.000020 ¶ VII(D)(2)(c).) Defendant 24 Dorsey documented that Gracia had a "defiant and argumentative attitude." (Doc. 86, Ex. 25 4 at 55.) The female officers conducted several parts of a visual BCI. (Doc. 86, Ex. 3 at 26 30-31, Ex. 4 at 55.) Gracia bent over a little but told the officers that, due to back issues, 27 she could not bend over, cough, and squat, as they had directed. (Doc. 86, Ex. 3 at 30, 31; 28 Doc. 95, Ex. B at 27-28.) Defendant Dorsey documented that Gracia refused to comply 1 with the remainder of the BCI. (Doc. 86, Ex. 4 at 55.) It occurred to Defendant Dorsey 2 that Gracia may not be able to bend over due to back pain. (Doc. 86, Ex. 3 at 33.) Gracia 3 testified that Defendant Dorsey pushed her on the back, causing her pain, and she fell to 4 the floor with a cry. (Doc. 95, Ex. B at 28.) In contrast, Defendant Dorsey testified that 5 Gracia turned angrily to Officer McShea, and the two officers took Gracia to the floor. 6 (Doc. 86, Ex. 3 at 31, 34-35, 41, 45, Ex. 4 at 54-55.) Defendant Grimsey entered the 7 shower area and, upon seeing that Gracia was refusing to give up her arms in a struggle, 8 he testified that he activated his taser and told her he would use it if she did not put her 9 hands on her back. (Doc. 86, Ex. 11 at 18; Doc. 95, Ex. B at 28.) Gracia was covered 10 with a smock and taken to a cell. (Doc. 86, Ex. 4 at 54-55.) 11 Defendant Grimsey testified that, when an inmate refuses a search, it creates a 12 threat that contraband may enter the facility and cause harm to the inmate or others. (Doc. 13 86, Ex. 11 at 15, Ex. 9 at D1SD.000010.) In that event, the person will be placed in a 14 restraint chair or on a restraint board. (Doc. 86, Ex. 11 at 13-14.) Defendant Dorsey 15 testified that, when an inmate does not cooperate, staff will strap them down until they 16 are calm and agree to comply with the procedures. (Doc. 86, Ex. 3 at 17.) PCADC policy 17 allows use of a restraint chair for new inmates that fail to comply with the search process. 18 (Doc. 86, Ex. 9 at D1SD.000007 ¶ V(C)(5).) While an inmate is in restraints, officers 19 shall conduct rounds every 15 minutes and, when it is practical, will provide 20 opportunities for water and use of the restroom, and the changing of position every two 21 hours. (Id. at 000006 ¶ V(B)(6)(a)&(b), 000007 ¶ V(D)(3).) If an inmate is in a secured 22 cell, she should not be restrained if she does not have the means to carry out a threat of 23 violence against herself or others. (Id. at 000004 ¶ D(1).) 24 Defendant Grimsey directed that Gracia be placed on a four-point restraint board, 25 which occurred at approximately 4:30 a.m. (Doc. 86, Ex. 4 at 054.) He documented that 26 Gracia was placed on a restraint board because she refused to complete the BCI, and he 27 was concerned about dangerous contraband (id.); Officer McShea stated that Gracia was 28 placed on the restraint board "due to her behavior" (id. at 55). Gracia testified that staff 1 notified her she would remain on the restraint board until she complied with a BCI. (Doc. 2 95, Ex. B at 20-21, 31.) After Defendant Dorsey secured Gracia's right wrist to the 3 restraint board, she had no further involvement with Gracia. (Doc. 95, Ex. E at 45.) There 4 is no evidence that Defendant Grimsey had further interactions with Gracia or any 5 involvement with her treatment while on the restraint board. 6 According to PCADC policy, restraints will be removed when an inmate becomes 7 cooperative. (Doc. 86, Ex. 9 at D1SD.000006 ¶ V(B)(7)(b).) Gracia was checked by 8 medical staff once an hour and remained restrained for 4 hours and 10 minutes. (Doc. 86, 9 Ex. 4 at 15-16, 51, 53; Doc. 95, Ex. B at 32, Ex. J at 16.) Nurse Dower testified that, on 10 an initial check, she would have made sure the restraints were not too tight. (Doc. 95, Ex. 11 K at 21-22.) None of the medical checks documented any abnormal findings. (Id. at 33, 12 Ex. J at 16, 28, 29, 31.) At 5:35 a.m., Gracia informed Nurse Dower that she was cold, 13 experiencing left arm numbness, and needed to urinate; she had pulled her right arm out 14 of the restraint. (Doc. 86, Ex. 4 at 16; Doc. 95, Ex. B at 32, Ex. J at 16c.) At a 6:35 a.m. 15 check, Gracia did not request water. (Doc. 86, Ex. 4 at 15.) However, she asked to be 16 taken out of restraints to urinate and was reminded that "there is a floor drain that is used 17 during restraining for safety and compliance." (Id.) Gracia averred that when she asked to 18 be released to urinate, she was told, "just piss yourself." (Doc. 86, Ex. 16 ¶ 13.) At that 19 time, Sergeant Estrada documented a need to continue restraints because Gracia was 20 uncooperative with the search process. (Doc. 95, Ex. J at 16.) At 7:30 a.m., it was 21 documented that Gracia was talkative and cooperative. (Id.) At 8:09 a.m., Gracia agreed 22 to complete a BCI. (Doc. 17 ¶ 24.) Personnel at PCADC did not document any injury to 23 Gracia while on the restraint board. (Doc. 95, Ex. J at 16, 28, 29, 31.) 24 At 8:30 a.m., Gracia was released from restraints and a BCI and body scan were 25 completed. (Doc. 86, Ex. 4 at 51, 53, Ex. 11 at 19.) Plaintiff testified that she agreed to 26 the BCI because she felt she had no choice if she did not want to remain restrained 27 indefinitely, but she found the BCI very painful. (Doc. 95, Ex. B at 32-33.) Gracia was 28 released from the PCADC shortly before noon on October 21, 2019. (Doc. 17 ¶¶ 27, 32.) 1 Defendants submitted a video that documented, without audio, almost the entirety of 2 Gracia's time at the PCADC, with the exception of the BCIs. (Doc. 95, Ex. F.) The Court 3 has reviewed the entirety of the video. 4 Gracia visited an emergency room the afternoon of October 21, reported that she 5 had been restrained and assaulted by corrections officers, and asked to have her visible 6 bruising documented. (Doc. 95, Ex. L at D1DS.000075-76, Ex. B at 36, 38-39.) She was 7 diagnosed with a contusion of her right wrist, right hand paresthesia, left wrist bruising 8 and swelling, contusions of both elbows, and elevated blood pressure; no treatment was 9 provided. (Doc. 86, Ex. 9 at D1SD.000065; Doc. 95, Ex. L at D1SD.000077-78, Ex. B at 10 46.) Gracia has not been diagnosed or treated for other injuries incurred while at PCADC. 11 (Doc. 95, Ex. B at 47-49, 61-62.) 12 DISCUSSION 13 Gracia alleges her right to due process was violated when Defendants Dorsey and 14 Grimsey punished her by requiring her to participate in a BCI and placing her on a 15 restraint board on October 21, 2019. (Doc. 17.) Gracia also alleges that Defendants 16 Grimsey and Nanos are liable for the conduct of others that acted according to custom 17 and practice. (Id.) Finally, she alleges all Defendants are liable for gross negligence. (Id.) 18 The Court identified only two points of factual disagreement between the parties. 19 First, Gracia averred that she was cooperative during the initial dress-out process, while 20 Defendant Dorsey documented that Gracia was uncooperative, sarcastic, and non- 21 compliant. Viewing the evidence most favorably to Gracia, the Court assumes she was 22 cooperative at that time. Regardless, Gracia was placed in a holding cell. There is no 23 evidence that Gracia's location in a holding cell had any impact on Berry (a non- 24 defendant) placing her on a suicide watch (which triggered the BCI). For that reason, this 25 factual disagreement is not material. 26 Second, Gracia testified that, during the initial BCI, she fell to the floor in pain, 27 while Defendant Dorsey testified that Gracia was taken to the floor by officers when she 28 turned on them with aggression. The Court also finds this dispute not material to 1 resolution of the motions. Accepting Gracia's testimony that she fell to the floor, she did 2 not dispute Defendant Grimsey's testimony that he witnessed her struggling against the 3 officers while on the floor. More importantly, there is agreement that Gracia did not 4 complete a full BCI at that time. And there is no factual dispute that Gracia did not 5 express willingness to participate in a full BCI until after 8 a.m. 6 Defendants allege that Gracia's constitutional rights were not violated by their 7 actions. Further, Defendants Grimsey and Dorsey contend they are entitled to qualified 8 immunity. Government officials enjoy qualified immunity from civil damages unless 9 their conduct violates "clearly established statutory or constitutional rights of which a 10 reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). 11 In deciding if qualified immunity applies, the Court must determine: (1) whether the facts 12 alleged show the defendant's conduct violated a constitutional right; and (2) whether that 13 right was clearly established at the time of the violation. Pearson v. Callahan, 555 U.S. 14 223, 230-32, 235-36 (2009). The Court first will examine the constitutional claims as 15 necessary to resolve part one of the qualified immunity standard. 16 Due Process 17 To obtain relief pursuant to § 1983, Gracia must establish that (1) Defendants 18 acted under color of state law, and (2) deprived her of a right guaranteed by the United 19 States Constitution. Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986). 20 Defendants do not dispute that they were acting under color of state law at all relevant 21 times. For liability under § 1983, there must be individual personal participation in the 22 alleged deprivation of the constitutional right, it is not enough that the person was present 23 or part of a group." See Jones v. Williams, 297 F.3d 930, 935 (9th Cir. 2002); Taylor v. 24 List, 880 F.2d 1040, 1045 (9th Cir. 1989). 25 The constitutional right at issue is that a person held in state detention, prior to 26 trial, has a Fourteenth Amendment due process right not to be punished.2 Bell v. Wolfish, 27 2 Gracia also alleges a violation of her Fifth Amendment right to due process. The 28 Fifth Amendment due process protection applies only to actions by federal actors. Here, Defendants are state actors. Therefore, only the Fourteenth Amendment is at issue in this 1 441 U.S. 520, 535 (1979). A defendant's conduct qualifies as punishment if, "(1) that 2 action [ ] cause[d] the detainee to suffer some harm or 'disability,' and (2) the purpose of 3 the governmental action [is] to punish the detainee." Demery v. Arpaio, 378 F.3d 1020, 4 1029 (9th Cir. 2004) (citing Bell, 441 U.S. at 538)). The harm suffered "must either 5 significantly exceed, or be independent of, the inherent discomforts of confinement." Id. 6 at 1030 (citing Bell, 441 U.S. at 537). Defendants concede that Gracia has asserted 7 sufficient harm when all inferences are drawn in her favor. Thus, the Court focuses on the 8 second factor, whether Defendants intended to punish Gracia. 9 The primary "punishment" that Gracia cites is her restraint on a board. However, 10 because that restraint ties back to prior actions by Gracia and Defendants, the Court 11 evaluates some of that earlier conduct as well. Defendant Grimsey documented that 12 Gracia was placed on a restraint board because she refused to complete the BCI, and he 13 was concerned about dangerous contraband. (Doc. 86, Ex. 4 at 054.) Defendant Gracia's 14 testimony comports with that documentation, as she stated staff notified her that she 15 would remain on the restraint board until she agreed to complete a BCI. (Doc. 95, Ex. B 16 at 20-21, 31.) 17 The only evidence Gracia cited as evidence of an express intent to punish was 18 Defendant Dorsey's notation that Gracia "refused to obey orders, very sarcastic and 19 refused to dress out at first. Almost ended up strapped to a chair." (Id., Ex. E at 22-23.) 20 Gracia argues that this documentation by Defendant Dorsey demonstrated that she had an 21 intent to punish/restrain Gracia, from the start of their interactions, for being sarcastic. 22 The form completed by Defendant Dorsey asked her to identify whether Gracia was 23 cooperative or uncooperative, followed by a space for comments. Defendant Dorsey's 24 comments explained her finding that Gracia was uncooperative. Defendant Dorsey noted 25 not just sarcasm, but that Gracia refused to obey orders and to dress out when first asked. 26 PCADC policy provides for restraint in a chair if a detainee fails to comply with the 27 28 case. See Bingue v. Prunchak, 512 F.3d 1169, 1174 (9th Cir. 2008). The Court also notes that Gracia did not bring a Fourth Amendment claim alleging an unreasonable search. 1 search process. Because Dorsey determined that Gracia was resisting compliance with the 2 initial search, which occurs during the "dress out" process, the institutional policy 3 allowed for restraint. (Doc. 86, Ex. 11 at 14-15 (explaining that the initial search is 4 commonly referred to as part of dress-out).) The notation of sarcasm does not suggest 5 that Defendant Dorsey considered restraining her for that reason, rather than for failure to 6 comply with a search procedure. Even accepting Gracia's attestation that she was 7 cooperative with the procedure, Defendant Dorsey did not have decision-making 8 authority with respect to the conduct that Gracia identified as punishment – requiring a 9 BCI and restraining Gracia on a board. Thus, her feelings or intent toward Gracia were of 10 limited import. This finding is supported by the fact that an initial search was completed, 11 and Defendant Dorsey did not impose a restraint at that time. The evidence, even when 12 construed in Gracia's favor does not reveal that Defendant Dorsey intended to punish 13 Gracia. 14 If there is no evidence of an express intention to punish, a court must evaluate the 15 non-punitive stated purpose of the condition imposed: 16 [I]f a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more, 17 amount to "punishment." Conversely, if a restriction or condition is not reasonably related to a legitimate goal-if it is arbitrary or purposeless-a 18 court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted. 19 Bell, 441 U.S. at 538-39. A defendant need not have employed the "least restrictive 20 alternative," Valdez v. Rosenbaum, 302 F.3d 1039, 1046 (9th Cir. 2002); however, if a 21 defendant had "many alternative and less harsh methods" from which to select, that may 22 evince an intention to punish, Bell, 441 U.S. at 539 n.20. Retribution is a form of 23 punishment and does not serve a legitimate government interest. Kennedy v. Mendoza- 24 Martinez, 372 U.S. 144, 168 (1963). And restrictions that are "excessive in relation to" 25 the stated legitimate purpose are precluded. Bell, 441 U.S. at 538. 26 A pretrial detainee may lawfully be subject to restrictions that are "reasonably 27 related to the institution's interest in maintaining jail security" or "effective management 28 of the detention facility." Id. at 540 (finding jail security, including the exclusion of 1 contraband, is a "valid objective that may justify imposition of conditions and restrictions 2 of pretrial detention and dispel any inference that such restrictions are intended as 3 punishment."). When evaluating whether a particular restriction is reasonably related to 4 the institution's security, courts typically defer to corrections officials, "in the absence of 5 substantial evidence in the record to indicate that the officials have exaggerated their 6 response to these considerations." Id. at 540 n.23 (quoting Pell v. Procunier, 417 U.S. 7 817, 827 (1974)). The Court need not "agree with the defendants" or find that the "policy 8 in fact advances the jail's legitimate interests," it must determine only if the defendants' 9 conduct was "'rational,' that is, whether the defendants might reasonably have thought 10 that the policy would advance its interests." Valdez, 302 F.3d at 1046 (quoting Mauro v. 11 Arpaio, 188 F.3d 1054, 1060 (9th Cir. 1999) (en banc)). 12 The Court now focuses on whether the conditions to which Gracia was subjected 13 were reasonably related to a legitimate government interest. Gracia argues that PCADC 14 policy forbid use of a restraint board to enforce compliance with the rules. And that 15 Defendants failure to follow PCADC's rules demonstrated the lack of a legitimate 16 penological purpose. Contrary to her argument, however, PCADC policy does not 17 include such a prohibition. The policies explicitly allowed the use of a restraint chair 18 when a new arrestee failed to comply with search protocol. A restraint chair had seven 19 restraint points and could not be used for more than two hours, while restraint on a board 20 could last for 8 or more hours and involved only a four-point restraint for Gracia. (Doc. 21 86, Ex. 9 D1SD.000003 ¶ I, D1SD.000006-07 ¶¶ V(C)(1), VI(B)(1).) Nothing in the 22 policy forbid use of a board, which appears to be less restrictive than a chair. Because 23 Defendants' conduct in restraining Gracia on a board was not a violation of the facility's 24 policies, Gracia's argument fails to establish that the restraint lacked a legitimate 25 penological purpose.3 26 3 When asked, Gracia told Nurse Dower that she did not know if she was pregnant; 27 a pregnancy test was scheduled but not completed prior to the officers placing her in restraints. (Doc. 86, Ex. 12 at 021.) Gracia asserts that this action by Defendants 28 demonstrated a willingness to violate policy, which does not serve a penological purpose. The standard restraint policy does not apply to inmates that are pregnant; PCADC has a 1 Gracia further argues that there was no legitimate penological interest in putting 2 her on a restraint board for 4 hours and, during that time, not offering her water, releasing 3 her to urinate, or allowing her to change position. Gracia also contends the policy 4 required that a corrections officer check on her every fifteen minutes and that was not 5 done. PCADC policy indicates that a detainee shall be allowed water, release to use the 6 bathroom, and a change of position, if those things are "practical." After the initial 7 placement of Gracia on the restraint board, Defendants Grimsey and Dorsey were not 8 involved in the continuation of the restraint, monitoring Gracia, or decisions regarding 9 whether to allow her temporary release or water.4 After two hours, Sergeant Estrada 10 signed the form as a Shift Supervisor; and at a four-hour assessment, Sergeant Lopez 11 signed the form as the Shift Supervisor that authorized her release. In addition, a member 12 of the medical staff checked on Gracia hourly. Because there is no evidence that 13 Defendants Grimsey or Dorsey participated beyond Gracia's initial restraint, they cannot 14 be held responsible for any constitutional violations after that time. Additionally, the fact 15 that restraint was continued by other corrections officers undermines Gracia's argument 16 that Defendants' intent in restraining her was punishment. 17 Gracia also argues that PCADC policy did not require that she be taken to a secure 18 unit solely because she was placed on suicide watch. And, if Defendants had kept her in 19 the intake area, a BCI would not have been required. PCADC policy allows two 20 placement options for a detainee on suicide watch, remain in intake or be transferred to 21 the MHU. Transferring Gracia to the MHU was, at a minimum, allowable under the 22 23 policy regarding restraint of pregnant inmates, but Gracia did not provide that policy section to the Court. (Doc. 86, Ex. 9 at D1SD.000005 ¶¶ III, IV.) Although pregnancy 24 had not been ruled out, no Defendant had reason to believe Gracia was pregnant. Therefore, Defendants' actions did not evince an intent to restrain Gracia regardless of 25 policy. Further, Gracia did not establish that Defendants violated the policy governing restraint of pregnant inmates. 26 4 Gracia also contends that, when she was placed on a suicide watch, policy 27 required that she be observed every five minutes, which was not done. Summer Berry placed her on suicide watch, not one of the Defendants. (Doc. 86, Ex. 4 at 23-26, 44.) 28 Further, there is no evidence that one of the Defendants had responsibility for conducting those 5-minute observations or ensuring that someone else conducted them. 1 policy. If the transfer is discretionary, the decision to move an inmate to the MHU is 2 made by medical staff and the Intake Sergeant. (Doc. 86, Ex. 6, D5SD.000188-89, ¶ 3 5(1).) Gracia argues there is no record that a joint decision was made regarding her 4 transfer. If an inmate needs to be placed in a holding cell due to her behavior, however, 5 then transfer to the MHU is required. Prior to Gracia being placed on suicide watch, 6 which was initiated by Summer Berry not a Defendant, Gracia already had been put in a 7 holding cell. Therefore, as Defendant Grimsey testified, Gracia's transfer to the MHU 8 was mandated by policy.5 9 Gracia does not dispute that a BCI was required for transfer into the MHU. She 10 proposes, however, that staff could have done an electronic body scan instead. Gracia 11 argues that an electronic scan would have satisfied the need for Defendants to verify 12 whether Gracia had contraband in her body. Therefore, she contends the requirement of 13 conducting a BCI was arbitrary and purposeless. First, the record does not contain 14 sufficient evidence to substantiate Gracia's argument that an electronic scan would satisfy 15 the same purpose as a BCI.6 The fact that Gracia ultimately was subjected to both a BCI 16 and an electronic scan suggests they are not fully duplicative, and an electronic scan is 17 not an established alternative. Further, review of the PCADC policies on searches of 18 19 5 Gracia argues that transfer to the MHU is mandated only if a detainee requires 20 transfer to a holding cell after she already has been placed on suicide watch. (Doc. 104 at 9-10.) PCADC policy states that a new arrestee placed on suicide watch may remain in 21 intake or be moved to the MHU; however, if inmates need to be placed in a holding cell "to control their activity," they will be taken to the MHU. (Doc. 86, Ex. 6, D5SD.000188- 22 89 ¶¶ 5, 6(5).) The policy does not delineate an order of events that triggers transfer to the MHU. Instead, if a person is on suicide watch and needs to be in a holding cell, both of 23 which were true for Gracia, the policy mandates transfer to the MHU. This is the only logical interpretation of the policy because a detainee in the general intake area is under 24 constant surveillance. That is not true for a person in an intake holding cell. Therefore, to receive the observation required for a suicide watch, the person must be transferred. 25 6 Regarding an electronic scanner at the PCADC, Gracia submitted two exhibits. 26 Exhibit 13 appears to be a specification sheet/advertisement for a Conpass Duel View Full Body Security Screening System by Adani. Gracia's Exhibit 14 appears to be a 27 picture of an identification tag on a "Ful-Body Security Screening System" by Adani. Nothing in these exhibits connect them to a device available at the PCADC. However, 28 PCADC policy provides for the use of a "Conpass Scanner." (Doc. 86, Ex. 9 at D1SD.000010, 13, 18-19.) 1 persons reveals that electronic body scans are not used as an alternative to BCIs. (Doc. 2 86, Ex. 9 at D1SD.000010-21.) 3 Second, the law does not require officers to use the least restrictive means 4 available. Rather, the Court asks whether a BCI was reasonably related to a legitimate 5 goal. "[S]o long as a prisoner is presented with the opportunity to obtain contraband or a 6 weapon while outside of his cell, a visual strip search has a legitimate penological 7 purpose." Michenfelder v. Sumner, 860 F.2d 328, 332-33 (9th Cir. 1988) (citing Turner v. 8 Safley, 482 U.S. 78, 87 (1987)). Gracia concedes that preventing contraband from 9 entering detention facilities is a legitimate interest, and that it is appropriate to conduct a 10 BCI prior to moving a detainee into a housing unit (such as the MHU). (Doc. 85 at 12; 11 Doc. 95, Ex. B at 21.) Because Gracia was entering a housing unit for the first time from 12 outside the jail, a BCI was rational and reasonably related to a legitimate goal. Gracia has 13 not established that conducting a BCI was excessive in relation to the goal of locating and 14 confiscating any dangerous contraband before a detainee enters a secured housing area. 15 Further, this Court must defer to the county's policies regarding security at the PCADC 16 absent "substantial evidence showing [the] policies are an unnecessary or unjustified 17 response to problems of jail security." Olivier v. Baca, 913 F.3d 852, 858 (9th Cir. 2019) 18 (quoting Florence v. Bd. of Chosen Freeholders of Cnty. of Burlington, 566 U.S. 318, 19 322-23 (2012)). There is not substantial evidence that the PCADC policies regarding 20 requiring a BCI prior to transfer into the MHU, and the consequences of not complying 21 with those policies, are unjustified in the face of the need to maintain security at the jail.7 22 Official Capacity Liability Based on Custom and Practice 23 Gracia alleges that Defendants Grimsey and Nanos are liable for the actions of 24 their subordinates based on a policy or custom of jail employees punishing pretrial 25 detainees by placing them in restraints. "[I]f a defendant inflicts injury when carrying out 26 7 In her response to Defendants' Motion for Summary Judgment, Gracia contends 27 that the BCI with which she ultimately complied occurred just before she was taken to an unsecure area for an initial appearance. (Doc. 102 at 15.) She argues it was pointless at 28 that time. The completed BCI is not evaluated by the Court because there is no evidence that Defendants Dorsey and Grimsey were involved in that procedure. 1 an official policy or custom, the governmental entity may be held responsible." Monell v. 2 Dep't of Soc. Servs. Of City of New York, 436 U.S. at 691, 694 (1978); City of Canton, 3 Ohio v. Harris, 489 U.S. 378, 388-89 (1989) (holding a municipality may be held liable if 4 a failure to train reflects a choice amounting to a "policy"). Although Gracia did not name 5 Pima County as a Defendant, an official-capacity claim amounts to a claim against the 6 county. See Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (citing Monell, 436 U.S. 7 at 690 n.55 (holding that suits against a government representative in his official capacity 8 "generally represent only another way of pleading an action against an entity of which an 9 officer is an agent.")). Gracia has not established that her constitutional rights were 10 violated by Defendants following an official policy. To the contrary, she contends 11 Defendants violated PCADC policy. See James v. Lee, 485 F. Supp. 3d 1241, 1253 (S.D. 12 Cal. 2020) (dismissing an official-capacity claim because execution of policy was not 13 alleged to violate the plaintiff's rights, it was the failure to follow policy that was 14 alleged). 15 To establish a custom of Pima County, Gracia cannot rely upon "isolated or 16 sporadic incidents; it must be founded upon practices of sufficient duration, frequency 17 and consistency that the conduct has become a traditional method of carrying out policy." 18 Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996), holding modified by Navarro v. 19 Block, 250 F.3d 729 (9th Cir. 2001). Gracia alleges Defendants acted in accord with a 20 culture of punishing detainees that staff found insolent or did not like. In support, Gracia 21 provided a single-page check form for each of the hundreds of inmates restrained in 2019 22 at the PCADC. (Doc. 86, Ex. 15.) The forms show only the reason documented for 23 placing a pretrial detainee in restraints, many of which listed noncompliance with a 24 search procedure. (Id.) This limited information offers no evidence that any of those 25 detainees were restrained improperly or as punishment. Gracia has provided no evidence 26 that Defendants acted in accord with a custom to punish pretrial detainees. See Reynolds 27 v. Wood Cnty., Texas, No. 22-40381, 2023 WL 3175467, at *6-7 (5th Cir. May 1, 2023) 28 (finding restraint check sheets did not provide evidence of a custom and practice of using 1 a restraint chair improperly regardless of length of time detainee was held in it). Thus, 2 Gracia fails to establish that Defendants Nanos and Grimsey violated her constitutional 3 rights while acting in an official capacity. 4 Personal Capacity Liability for Supervisors 5 Gracia alleges that Defendants Grimsey and Nanos are liable for their conduct as 6 supervisors of Dorsey and Grimsey, respectively. There is no vicarious liability for a § 7 1983 violation; therefore, a plaintiff must establish that each individual violated the 8 Constitution by his own actions. Starr v. Baca, 652 F.3d 1202, 1206 (9th Cir. 2011) 9 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)). This includes showing that a 10 supervisor had the required intent to punish even if the constitutional violation is inflicted 11 by another. Iqbal, 556 U.S. at 677. Because the Court determined that Gracia's 12 constitutional rights were not violated, there can be no supervisory liability. However, 13 because this issue has been briefed and argued, the Court examines it further. 14 A supervisor may be responsible in his personal capacity "if there exists either 15 (1) his or her personal involvement in the constitutional deprivation, or (2) a sufficient 16 causal connection between the supervisor's wrongful conduct and the constitutional 17 violation." Starr, 652 F.3d at 1207 (citing Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 18 1989)). This requirement may be satisfied by the "supervisor's knowledge of and 19 acquiescence in unconstitutional conduct by his or her subordinates." Id. Further, "'[t]he 20 requisite causal connection can be established . . . by setting in motion a series of acts by 21 others' . . . or by 'knowingly refus[ing] to terminate a series of acts by others, which [the 22 supervisor] knew or reasonably should have known would cause others to inflict a 23 constitutional injury.'" Id. (citing Redman v. Cnty. of San Diego, 942 F.2d 1435, 1447 24 (9th Cir. 1991); Dubner v. City & Cnty. of San Francisco, 266 F.3d 959, 968 (9th Cir. 25 2001)); see Vazquez v. Cnty. of Kern, 949 F.3d 1153, 1166 (9th Cir. 2020); see also 26 Watkins v. City of Oakland, Cal., 145 F.3d 1087, 1093 (9th Cir. 1998) (holding 27 supervisory liability can be based on "conduct that showed a reckless or callous 28 indifference to the rights of others."). 1 In the Amended Complaint, with respect to supervision, Gracia alleges only that 2 Defendant Grimsey did not reprimand Defendant Dorsey for her improper conduct 3 toward Gracia. Because the Court determined that Defendant Dorsey did not violate 4 Gracia's constitutional rights or substantive PCADC policy, there was no basis for a 5 reprimand. Further, Defendant Dorsey did not have decision-making authority with 6 respect to the BCI or Gracia's restraint, which was the only conduct alleged to constitute 7 punishment. In sum, Gracia has not established a causal connection between supervisory 8 actions by Grimsey and unconstitutional conduct by his subordinates. 9 Gracia did not allege Defendant Nanos had personal involvement in violating her 10 constitutional rights. Instead, she alleges Defendant Nanos is liable because staff at the 11 PCADC did not follow policy, and he failed to supervise or control the PCADC 12 employees. (Doc. 85 at 15.) A sheriff may be held liable for his "own culpable action or 13 inaction in the training, supervision, or control of his subordinates[.]" Dubner, 266 F.3d 14 at 968 (quoting Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991)). 15 However, Gracia has presented no evidence regarding Defendant Nanos's role in 16 overseeing the personnel at the PCADC. Further, Gracia has not established that 17 Defendant Nanos had an intent to punish as is required for liability. Iqbal, 556 U.S. at 18 677. Taking all evidence in Gracia's favor, the Court finds Defendant Nanos is entitled to 19 summary judgment on a claim of personal capacity supervisory liability. 20 Qualified Immunity 21 Because the Court has determined that no Defendant violated Gracia's 22 constitutional rights, the Court need not evaluate qualified immunity. However, as this 23 issue has been fully briefed, the Court will evaluate the second element of a qualified 24 immunity analysis. The Court assesses whether Gracia's restraint under the circumstances 25 was clearly established as punishment, such that Defendants Dorsey and Grimsey would 26 have known their actions were unlawful. The qualified immunity inquiry "must be 27 undertaken in light of the specific context of the case, not as a broad general proposition." 28 Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (quoting Saucier v. Katz, 533 U.S. 194, 1 201 (2001)). For qualified immunity purposes, "the contours of the right must be 2 sufficiently clear that at the time the allegedly unlawful act is [under]taken, a reasonable 3 official would understand that what he is doing violates that right," and "in the light of 4 pre-existing law the unlawfulness must be apparent." Mendoza v. Block, 27 F.3d 1357, 5 1361 (9th Cir. 1994) (quotations omitted); Hamby v. Hammond, 821 F.3d 1085, 1091 6 (9th Cir. 2016) ("a plaintiff must prove that 'precedent on the books' at the time the 7 officials acted 'would have made clear to [them] that [their actions] violated the 8 Constitution.'") (quoting Taylor v. Barkes, 575 U.S. 822, 827 (2015)). Regardless of 9 whether the constitutional violation occurred, the officer should prevail if the right 10 asserted by the plaintiff was not "clearly established" or the officer could have reasonably 11 believed that his particular conduct was lawful. Romero v. Kitsap Cnty., 931 F.2d 624, 12 627 (9th Cir. 1991). 13 It is Gracia's burden to show "that the rights allegedly violated were 'clearly 14 established.'" Shafer v. Cnty. of Santa Barbara, 868 F.3d 1110, 1118 (9th Cir. 2017). In 15 evaluating qualified immunity, the Court looks at the law clearly established at the time 16 of the incident, which occurred in October 2019. Gracia contends that a pretrial detainee's 17 right not to be punished has been clearly established for hundreds of years. (Doc. 102 at 18 13.) This is not the level of specificity required by the Supreme Court when analyzing 19 qualified immunity. The Ninth Circuit has emphasized that "[a]lthough a plaintiff need 20 not find 'a case directly on point, . . . existing precedent must have placed the . . . 21 constitutional question beyond debate.'" Hamby, 821 F.3d at 1091 (quoting Ashcroft v. al- 22 Kidd, 563 U.S. 731, 741 (2011)); see also City & Cnty. of San Fran. v. Sheehan, 575 U.S. 23 600, 613 (2015) ("We have repeatedly told courts—and the Ninth Circuit in particular— 24 not to define clearly established law at a high level of generality."). Except in a rare case 25 where an officer's conduct is obviously unlawful, a plaintiff must identify a sufficiently 26 analogous case that would have alerted a defendant that his conduct violated a right to be 27 free of punishment. Vazquez, 949 F.3d at 1164, 1165-66 (holding "it is 'obvious' that a 28 juvenile corrections officer should not sexually harass or abuse a juvenile ward as it is 1 always wrong") (citing Sharp v. Cnty. of Orange, 871 F.3d 901, 912 (9th Cir. 2017)). 2 Gracia's case, which involved conducting a BCI and restraining a pretrial detainee, did 3 not involve actions that were unquestionably unlawful. 4 In Bell, the Supreme Court found constitutional visual BCIs on detainees after all 5 contact visits, to prevent and deter smuggling of contraband, as long as the search was 6 conducted reasonably and was not abusive. 441 U.S. at 558, 560, 561-62 (finding jail 7 security to be a nonpunitive objective and that the body cavity searches were a reasonable 8 response to those concerns). Subsequently, the Supreme Court found constitutional visual 9 BCIs on all detainees prior to admitting them into the general population. Florence, 566 10 U.S. at 338-39; Bull v. City & Cnty. of San Francisco, 595 F.3d 964, 980-81 (9th Cir. 11 2010) (upholding strip searches commensurate with those in Bell for all inmates entering 12 the general jail population). 13 When there is evidence of a legitimate security need, and the absence of an intent 14 to punish, the Ninth Circuit has held that the use of a restraint chair is not 15 unconstitutional. Dalluge v. Coates, 341 F. App'x 310, 310-11 (9th Cir. 2009). Similarly, 16 the Fifth Circuit granted qualified immunity for an occurrence in 2018, when a pretrial 17 detainee was held in a restraint chair for 14 hours (during the last hour of which he 18 urinated on himself), for behaving combatively and refusing to respond to booking 19 questions. Reynolds, 2023 WL 3175467, at *4 (acknowledging that there was a factual 20 dispute regarding whether the detainee continued to pose a threat throughout the 14 21 hours). The cases discussed so far made clear that, as of 2019, it was constitutional to: 22 (1) conduct a reasonable visual BCI of a pretrial detainee prior to placing them with 23 general population inmates, and (2) to restrain a pretrial detainee for a period of hours for 24 purposes of a legitimate security need. Based on this law, it was not clearly established in 25 October 2019 that Defendants would have known their actions violated clearly 26 established law. 27 The Court identified one Ninth Circuit case that addresses restraint of a pretrial 28 detainee for failure to comply with a visual body cavity inspection. In that case, officers 1 would leave non-compliant female detainees chained to their cell door essentially naked 2 for hours, visible to male guards on patrol. Shorter v. Baca, 895 F.3d 1176, 1188 (9th Cir. 3 2018.) The court distinguished the circumstances from those present in Florence, because 4 the searches were not for initial admission to the jail but were conducted upon return 5 from court where the detainee had been shackled and under constant monitoring. Id. 6 (noting the procedures were not justified on the same basis as the searches in Florence). 7 Officials in the Shorter case admitted the practices did not serve a legitimate penological 8 purpose, and jail policy provided an alternative less abusive option. Id. at 1188-89. The 9 circuit court was not asked to decide the constitutionality of the practice, it held only that 10 the circumstances did not warrant an instruction offering deference to jail officials 11 because the search procedures were an "unnecessary, unjustified, or exaggerated response 12 to concerns about jail safety." Id. at 1191. 13 Here, as seen in the video, Gracia was placed in a smock that covered her from the 14 neck to below the knees (contrary to her assertion that she was naked). She was not 15 subject to a repeat search while housed with the general population; rather, she was 16 subject to an initial search as a new detainee being admitted into a housing unit. Further, 17 Defendants rely upon an identified penological purpose for the search and restraint. And 18 their actions reasonably complied with jail policy. Vazquez, 949 F.3d at 1164, 1165-66 19 ("One factor a court can look at to evaluate whether an officer would have known his 20 conduct was unlawful, is whether it violated policy or served no legitimate penological 21 purpose."); cf. Davis v. Scherer, 468 U.S. 183, 194 (1984) ("Officials sued for 22 constitutional violations do not lose their qualified immunity merely because their 23 conduct violates some statutory or administrative provision."). After review of this 24 caselaw, the Court finds Defendants Grimsey and Dorsey are entitled to qualified 25 immunity because it was not clearly established that their conduct was unlawful. 26 Gracia identified only one case in opposing Defendant's request for qualified 27 immunity, Lopez v. Youngblood, 609 F. Supp. 2d 1125, 1140-41 (E.D. Cal. 2009). In 28 Lopez, the court concluded that strip searching inmates in small groups violated the 1 Fourth Amendment but did not violate the inmates' due process rights under the 2 Fourteenth Amendment. Id. at 1138-39, 1141. The court also denied summary judgment 3 to defendants on the claim that strip searching inmates after the court has ordered them 4 released violated their Fourth Amendment rights. Id. at 1139-40. The Lopez case, which 5 is out-of-district, is factually distinguishable from the circumstances present here. Gracia 6 was not subjected to a group search, did not allege a violation of the Fourth Amendment, 7 and was not searched after a court granted her release. Therefore, Lopez has no bearing 8 on this Court's evaluation of the clearly established law in October 2019, and Defendants 9 entitlement to qualified immunity. 10 Gross Negligence 11 Gracia alleged all Defendants acted with gross negligence. She did not seek 12 summary judgment as to this claim, but Defendants requested summary judgment in their 13 favor with respect to gross negligence. 14 Under Arizona law, a person acts with gross negligence if "he acts or fails to act 15 when he knows or has reason to know facts which would lead a reasonable person to 16 realize that his conduct not only creates an unreasonable risk of bodily harm to others but 17 also involves a high probability that substantial harm will result." Walls v. Ariz. Dept. of 18 Pub. Safety, 826 P.2d 1217, 1221, 170 Ariz. 591, 595 (Ct. App. 1991); see also Noriega 19 v. Town of Miami, 243 Ariz. 320, 328, 407 P.3d 92, 100-01 (Ct. App. 2017) (finding 20 gross negligence equates to reckless indifference to another's safety). Gross or wanton 21 negligence is "highly potent, and when it is present it fairly proclaims itself in no 22 uncertain terms. It is 'in the air,' so to speak. It is flagrant and evinces a lawless and 23 destructive spirit." Scott v. Scott, 252 P.2d 571, 575, 75 Ariz. 116, 122 (1953); Merritt v. 24 Arizona, 425 F. Supp. 3d 1201, 1231-32 (D. Ariz. 2019) (quoting Cullison v. City of 25 Peoria, 584 P.2d 1156, 120 Ariz. 165 (1978)). Summary judgment should be denied as to 26 a gross negligence claim if there is more than slight evidence, not bordering on 27 conjecture, to support it. Walls, 826 P.2d at 1221, 170 Ariz. at 595 ("A court may 28 1 withdraw the issue of gross negligence from the jury only when no evidence is introduced 2 that would lead a reasonable person to find gross negligence."). 3 Gracia alleges that summary judgment as to gross negligence should be denied 4 based on the following facts: Defendant Dorsey knew Gracia had back pain; there was a 5 less-intrusive manner to search for contraband; policy forbid restraint on a board while 6 Gracia was in a secure cell; Gracia was intoxicated and at risk of passing out and 7 suffocating from vomit; and Defendants should have known that checks every 5 or 15 8 minutes were required due to the suicide watch and restraint, respectively. The Court first 9 looks at Gracia's policy-based arguments. As discussed earlier, PCADC policy did not 10 allow use of a Conpass Scanner as an alternative to conducting a BCI. Gracia cites to a 11 policy that forbids restraints when a person in a secured cell issues threats but does not 12 have the means to carry them out. (Doc. 86, Ex. 9, D1SD.000004 ¶ II(D)(1). Gracia was 13 not in a secure cell at the time the decision was made to restrain her. Further, she was 14 being restrained, not for verbal threats, but for failure to complete the BCI required to 15 place her in the MHU. Until a BCI was completed, PCADC staff could not be assured 16 that she did not have means to carry out harm to herself or others. Therefore, the policies 17 cited by Gracia do not evidence gross negligence. 18 Gracia reported to Defendant Dorsey that she had back pain. However, awareness 19 that a person has back pain would not alert a reasonable person that performing a BCI or 20 restraining that person on a board would create an unreasonable risk of bodily harm or 21 would involve a high probability of causing substantial harm. In fact, Gracia has not 22 alleged that she incurred harm to her back beyond temporary pain. Although Gracia had a 23 substantial BAC when she entered the jail, there is no evidence Defendants possessed that 24 25 information. Further, Gracia testified that she "sobered up," and operated with more clear 26 thinking shortly after arriving at the jail. (Doc. 95, Ex. B at 34-35.) For those reasons, a 27 reasonable person would not have had notice that restraining Gracia on the board at 4:30 28 a.m. created a high probability of substantial harm due to the risk of vomiting while 1 || passed out. Further, while restrained on the board, Gracia had the ability to turn her head 2|| from side to side and to sit up. Even if Defendants knew that frequent checks on Gracia were required by policy, a reasonable person would not have identified an unreasonable risk of bodily harm in not conducting checks more than once per hour because Gracia 5|| was fully restrained. For the reasons discussed above, the Court finds Gracia has not 6|| identified sufficient evidence of reckless indifference to her safety. Therefore, Defendants are entitled to summary judgment on Gracia's gross negligence claim. 8 CONCLUSION 9 Construing all facts in Gracia's favor, the Court finds Defendants are entitled to 10 summary judgment on all claims. First, there is no evidence any Defendant intended to punish Gracia. If the Court were to find evidence of intent to punish and harm to Gracia, the Court finds Defendants Grimsey and Dorsey are entitled to qualified immunity. 13 Second, there is no evidence of a custom or practice of restraining inmates for 14 punishment; therefore, Defendants are not liable in their official capacity. Third, there is 13! no evidence that Defendants acted with gross negligence. Finally, because the Court finds Defendants are entitled to summary judgment on Gracia's three claims, it does not address Defendants’ request to dismiss Gracia's prayer for punitive damages. 18 Accordingly, 19 IT IS ORDERED that Plaintiff's Motion for Summary Judgment (Doc. 85) is 20]! DENIED. 21 IT IS FURTHER ORDERED that Defendants' Motion for Summary Judgment (Doc. 94) is GRANTED as to all claims. 23 IT IS FURTHER ORDERED that the Clerk of Court should enter judgment in 24! Defendants favor and dismiss this case. 25 Dated this 26th day of May, 2023. 26 27 Li tlh) C. Tipe 28 onorable Lynnette C. Kimmins United States Magistrate Judge -23-