Schwarz Ex Rel. Parker v. Lassen County Ex Rel. Lassen County Jail , 628 F. App'x 527 ( 2016 )

FILED
NOT FOR PUBLICATION
JAN 08 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NANCY SCHWARZ, on behalf of herself No. 13-17223
individually as the mother of Michael
Parker, deceased, and as representative and D.C. No. 2:10-cv-03048-MCE-
administrator of Michael Parker’s Estate, CMK
Plaintiff - Appellant,
MEMORANDUM*
v.
LASSEN COUNTY ex rel. the LASSEN
COUNTY JAIL (Detention Facility);
JOHN MINEAU, Undersheriff; CITY OF
SUSANVILLE, ex rel. Susanville Police
Department,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., Chief District Judge, Presiding
Argued and Submitted December 10, 2015
San Francisco, California
Before: GRABER, WARDLAW, and MURGUIA, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Nancy Schwarz appeals from the district court’s grant of summary judgment
in favor of Lassen County, Lassen County Undersheriff John Mineau, and the City
of Susanville on her claims arising out of the death of her son, Michael Parker.
Susanville police officers arrested Parker in September 2009 after he allegedly
violated a protective order, and detained Parker at the Lassen County Adult
Detention Facility (LCADF). Parker, who suffered from pre-existing heart and
gastrointestinal conditions, died in November 2009 shortly after his detention at
LCADF. Schwarz brought suit under 42 U.S.C. § 1983 on behalf of herself and
Parker alleging that Lassen County and Undersheriff Mineau were deliberately
indifferent to Parker’s serious medical needs while he was housed at LCADF, and
that the defendants infringed her right to familial association with Parker, all in
violation of the Fourteenth Amendment.1 We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.
1. Schwarz failed to produce evidence demonstrating a genuine dispute
of fact regarding whether Undersheriff Mineau consciously disregarded a
substantial risk of serious harm to Parker. See Lolli v. Cty. of Orange, 351 F.3d
410, 419 (9th Cir. 2003). Schwarz also failed to provide evidence of a Lassen
1
Schwarz’s complaint also stated claims arising under state law that are not
before this Court.
2
County policy, practice, or custom of delaying medical treatment to pre-trial
detainees that a reasonable jury could find caused Parker substantial harm or was
otherwise the “moving force” behind his death. See Monell v. Dep’t of Soc. Servs.
of City of N.Y., 436 U.S. 658, 694 (1978) (requiring a plaintiff bringing a claim
against a municipal entity for a constitutional violation to show that the official
action that caused the plaintiff’s injury was pursuant “to official municipal policy
of some nature”); Hallett v. Morgan, 296 F.3d 732, 745–46 (9th Cir. 2002)
(holding that, for a prisoner to establish that a delay in medical treatment evinces
deliberate indifference, the prisoner must show that the delay caused significant
harm).
2. Recovery for a violation of the right to familial association is
generally contingent on the existence of an underlying constitutional violation.
Gausvik v. Perez, 392 F.3d 1006, 1008 (9th Cir. 2004). Therefore, because there is
no evidence that either Undersheriff Mineau or Lassen County was deliberately
indifferent to Parker’s serious medical needs, Schwarz’s claim for loss of familial
association—which is predicated on their purportedly unconstitutional care of
Parker—likewise fails as a matter of law.
3. In addition, even if there were evidence of a constitutional violation
that could be attributed to the City of Susanville’s policies or practices, Schwarz
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has presented insufficient evidence from which a trier of fact could reasonably find
that any of the City’s actions in arresting or prosecuting Parker “shocked the
conscience,” thereby violating Schwarz’s rights to her son’s society and
companionship. See Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008)
(“[O]nly official conduct that ‘shocks the conscience’ is cognizable as a due
process violation.” (quoting Cty. of Sacramento v. Lewis, 523 U.S. 833, 846
(1998))).
AFFIRMED.
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