Conn v. City of Reno ( 2010 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHARLA CONN; DUSTIN CONN,  No. 07-15572
Plaintiffs-Appellants, D.C. No.
v.
 Cv-05-00595-HDM
CITY OF RENO; RYAN ASHTON; ORDER AND
DAVID ROBERTSON, AMENDED
Defendants-Appellees.
 OPINION
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
Amended January 8, 2010
Before: Mary M. Schroeder, Dorothy W. Nelson and
Stephen Reinhardt, Circuit Judges.
Order;
Dissent to Order by Chief Judge Kozinski’
Opinion by Judge Reinhardt
633
CONN v. CITY OF RENO 637
COUNSEL
Terri Keyser-Cooper, Reno, Nevada, and Diane K. Vaillan-
court, Santa Cruz, California, for the plaintiffs-appellants.
John J. Kadlic, Reno City Attorney, Donald L. Christensen,
Deputy City Attorney, Reno, Nevada, for the defendants-
appellees.
638 CONN v. CITY OF RENO
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 follow-
ing footnote:
The panel has voted to deny the petition for rehearing en
banc.
The full court was advised of the petition for rehearing en
banc. A judge requested a vote on whether to rehear the mat-
ter 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.
CONN v. CITY OF RENO 639
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 work-
ers, and judges didn’t run suicide-prevention programs.
Responsibility for preventing suicide rested with the individ-
ual 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 reason-
ing 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. Winne-
bago Cty. Dept. of Soc. Servs., 489 U.S. 189, 200 (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 redefini-
tion 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 lim-
ited by its rationale. “The affirmative duty to protect arises
not from the State’s knowledge of the individual’s predica-
ment or from its expressions of intent to help him, but from
the limitation it has imposed on his freedom to act on his own
640 CONN v. CITY OF RENO
behalf.” DeShaney, 489 U.S. at 200. 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 (1976).
And, because the state creates the prisoner’s conditions of
incarceration, the state has a duty not to purposefully create
a risk of harm—for 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 (1994). Apart from that ratio-
nale, there is no free-floating obligation to safeguard prison-
ers’ health. Otherwise, the distinction between prisoners and
non-prisoners 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 require-
ment that plaintiffs show a violation of clearly established law
to defeat qualified immunity. In the panel’s 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 insti-
tutions.
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 sui-
cide 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 depart-
ments 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 (1989).
CONN v. CITY OF RENO 641
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 employee— perhaps a mail man, dog
catcher or meter maid—and announce, “today’s a good day to
kill myself,” the Constitution does not guarantee that our cho-
sen 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 rarified 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 pre-
vention 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 (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 sui-
cide 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 pro-
642 CONN v. CITY OF RENO
cedures geared toward detection of detainees with suicidal
tendencies”); see also Harris, 489 U.S. at 396-97 (O’Connor,
J., concurring in part and dissenting in part) (“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 . . . .”).
What Clustka surely did have was a right of access to medi-
cal 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. The city more
than fulfilled that obligation. Right before her arrest, Clustka
was evaluated by a team of medics. At intake, she was exam-
ined by a nurse who received annual training in suicide pre-
vention. 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 psychi-
atric 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 pro-
vided 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 hold-
ing that the city could be found deliberately indifferent is
CONN v. CITY OF RENO 643
remarkable. “[F]ar from demonstrating deliberate indifference
to the mental health needs of . . . potentially suicidal detain-
ees, . . . the policies implemented by the City [of Reno] dem-
onstrate an effort to ensure the safety of persons like
decedent.” Manarite, 957 F.2d at 960; see also Liebe v. Nor-
ton, 157 F.3d 574, 579 (8th Cir. 1998) (“[T]he County’s pol-
icy 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 pro-
fessionals 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 what-
ever 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 Harris, 489 U.S. at 392. 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”—both because federal judges are “ill-
suited” to such a role and because excessive judicial interven-
tion 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. 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 any-
thing is left of our tradition of local self-government.
644 CONN v. CITY OF RENO
2. In another troubling portion of the opinion, the panel
holds that clearly established law required the officers trans-
porting Clustka to report any suicide threats made en route to
jail. Conn, 572 F.3d at 1062. On that basis, the panel with-
holds 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 prevent-
ing 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 infor-
mation 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 cir-
cumstances means that officers can no longer leave the treat-
ment of medical issues to trained medical professionals.
Instead, they must actively assist those professionals by pro-
viding 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 it a tax collector, tollbooth oper-
ator or member of the judiciary— they 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 Asso-
ciation. So why should it be any different for citizens lucky
enough to go to jail? It’s true that prisoners can’t take them-
selves to the doctor, Estelle, 429 U.S. at 103, 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
CONN v. CITY OF RENO 645
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 pris-
oner’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 diag-
nosis “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 doc-
tor’s failure to take patient’s medical history, although negli-
gent, 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 immunity.
Conn, 572 F.3d at 1062. Of course, the cases the panel cites
to show a violation of 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 suici-
dal inmate was held in prison without any medical attention
whatsoever (including no medical screening at intake), the
646 CONN v. CITY OF RENO
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 conversa-
tion.” Id. By contrast, Clustka’s family never asked these indi-
vidual 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 her-
self. See DeShaney, 489 U.S. at 200. The officers fulfilled that
obligation.
Cities and police should be entitled to assign responsibility
for the treatment of mental illness to trained medical profes-
sionals; 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 shoul-
ders. 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 eval-
uated 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.
CONN v. CITY OF RENO 647
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 administra-
tor 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).
As for proximate cause, any conceivable connection
between the officers’ omission 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.
648 CONN v. CITY OF RENO
The requirement of causation—like the deliberate indiffer-
ence standard and the doctrine of qualified immunity—limits
the ability of judges to micromanage local institutions. See
Harris, 489 U.S. at 391-92. 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 con-
sequences, 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 uncom-
fortable.
***
Untethered from the need to explain why the state should
owe any affirmative obligations to its citizens, and uncon-
strained 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 govern-
ment act’ for municipalities,” Harris, 489 U.S. at 396
(O’Connor, J., concurring in part and dissenting in part), and
little will be left of our tradition of local self-government.
Second-guessing suicide-prevention 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.
CONN v. CITY OF RENO 649
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 prob-
lems, 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 cus-
tody 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 med-
ical 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 offi-
cers or fails to adopt and implement policies when it is highly
predictable that such inaction will result in constitutional vio-
lations.
We hold that, on the facts presented, a reasonable jury
could find that the defendant police officers are liable under
650 CONN v. CITY OF RENO
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 pre-
vention and reporting. For these reasons, and as explained fur-
ther below, we reverse the district court’s grant of summary
judgment in favor of the defendants and allow Clustka’s sur-
viving 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 con-
victions, including for domestic violence, larceny, and driving
under the influence. Between 2001 and 2004, Clustka was
involuntarily committed to the Nevada Mental Health Insti-
tute (“NMHI”) on three separate occasions under a Legal 20001
for threatening or attempting suicide. Her mental health fur-
ther deteriorated in 2005.
On March 19, 2005, Clustka was arrested for domestic bat-
tery 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”
1
A Legal 2000 is a procedure under Nevada law whereby people suffer-
ing 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.
CONN v. CITY OF RENO 651
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 intoxicat-
ed” state; she “had a difficult time walking without assis-
tance.” 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 ten-
dencies, [that she was] known to abuse drugs, [was an] alco-
holic [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 agi-
tated and uncooperative when told where she was going. Rob-
ertson then told Clustka, falsely, that they would take her,
652 CONN v. CITY OF RENO
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 suc-
ceeded 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 Rob-
ertson 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 uncoopera-
tive. 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 hand-
cuffed 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 Rob-
ertson, 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.
CONN v. CITY OF RENO 653
When they arrived with Clustka at the jail, neither defen-
dant 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 res-
idence, 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 sui-
cide 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,
654 CONN v. CITY OF RENO
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 hand-
cuffs — 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 fol-
lowed less than 30 days after that of another detainee.
On May 11, 2005, less than one month after Clustka’s sui-
cide, 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 sui-
cide prevention policy was implemented. At intake, the arrest-
ing officer must now answer a series of questions concerning
the detainee’s mental health, including questions about sui-
2
Code 50 is a jail response when an inmate attempts suicide. Officers
and medical personnel rush to the scene.
CONN v. CITY OF RENO 655
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 deliber-
ate indifference to Clustka’s serious medical need — her sui-
cide 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 fail-
ing 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 indi-
vidual liability or municipal liability and granted the defen-
dants’ 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
656 CONN v. CITY OF RENO
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 giv-
ing 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 indiffer-
ence to a substantial risk of serious harm to an inmate —
including the deprivation of a serious medical need — vio-
lates 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,
3
Because here, the Conns prevail under the Eighth Amendment deliber-
ate 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).
CONN v. CITY OF RENO 657
[f]irst, the plaintiff must show a “serious medical
need” by demonstrating that “failure to treat a pris-
oner’s condition could result in further significant
injury or the ‘unnecessary and wanton infliction of
pain.’ ” Second, the plaintiff must show the defen-
dant’s response to the need was deliberately indiffer-
ent.
Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir 2006) (internal
citations omitted). The second prong requires both “(a) a pur-
poseful act or failure to respond to a prisoner’s pain or possi-
ble 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 indiffer-
ence — 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 medi-
cal need.’ ”).
The district court did not decide whether summary judg-
ment 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
658 CONN v. CITY OF RENO
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 seri-
ous 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 sui-
cide threat, Clustka’s evaluators were unaware of those events
when they assessed Clustka’s mental health, and their conclu-
sions were drawn in the absence of significant information
that would have supported the Conns’ position.
[5] Second, Clustka’s long and undisputed history of men-
tal 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 con-
clusion that the threat to Clustka’s health was objectively seri-
ous, 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 “manip-
ulative” — 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’ inter-
pretation of the events against other reasonable inferences
CONN v. CITY OF RENO 659
more favorable to the plaintiffs. The events may appear differ-
ently 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 sui-
cide 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 deliber-
ately indifferent”
To demonstrate the second prong — deliberate indifference
— plaintiffs must show that the officers were (a) subjectively
660 CONN v. CITY OF RENO
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 infer-
ence 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 demon-
strate 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 sui-
cide. 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 repeat-
edly 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 dis-
counting 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
CONN v. CITY OF RENO 661
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.” Far-
mer, 511 U.S. at 842. Indeed, in certain circumstances, “a fac-
tfinder 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 defen-
dants’ 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 subjec-
tively 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 undergo-
ing a particularly stressful time. Clustka’s detail report —
which the officers requested and reviewed — cautioned: “vio-
lent 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 inci-
dent even if they were subjectively aware of Clustka’s medi-
cal need. Both officers believed that failing to handcuff
Clustka while transporting her, and failing to fasten her into
662 CONN v. CITY OF RENO
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 tran-
spired. Later, when Ashton found out about Clustka’s suicide,
he told one deputy that Clustka had “attempted to choke her-
self” in the paddy wagon. A second deputy reported the fol-
lowing conversation:
[Ashton] stated that “she looked out the back win-
dow 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
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.
CONN v. CITY OF RENO 663
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 suf-
ficient 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 sum-
mary 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 Cen-
ter, 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, none-
theless, 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
664 CONN v. CITY OF RENO
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 con-
stitutional 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 con-
tinued 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 hos-
pital, 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
CONN v. CITY OF RENO 665
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 pro-
cedures “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 trans-
ferred to NMHI, she did not stay there longer than a day.
Defendants note that each time a patient is seen at the emer-
gency 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 evalu-
ated 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 per-
sonnel when Clustka was detained the next day on the misde-
meanor 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 —
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. None-
theless, without the information about her most recent suicide
attempt/threat, she was not placed on suicide watch on April 27, 2005.
666 CONN v. CITY OF RENO
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 gen-
erally 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 previ-
ous 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 knowl-
edge 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 treat-
ment 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 pro-
vide 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 some-
one 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 —
CONN v. CITY OF RENO 667
such as holding her on a Legal 2000 for up to 72 hours — but
that intervention would likely have occurred only if the cru-
cial information about the choking incident and suicide threat
were known by the persons making the necessary determina-
tions.
[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, sui-
cidal 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 cer-
tainly 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’ con-
duct “is not the proximate cause of [Clustka’s] alleged inju-
ries if another cause intervenes and supersedes [their] liability
for the subsequent events.” Id. (quoting Restatement (Second)
of Torts §§ 440-53 (1965)). However, “foreseeable interven-
ing causes . . . will not supersede the defendant’s responsibili-
668 CONN v. CITY OF RENO
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 inter-
vening 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 sub-
jected to ten days in isolation, during which time he commit-
ted 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
CONN v. CITY OF RENO 669
were cursory jail admission screenings, was potential suicide
a cause for or the subject of the review. When medical exam-
iners 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 impor-
tant, 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 inter-
vening 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 fur-
ther destabilize her — whether detention or some other simi-
lar 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 war-
ranted because the defendants are entitled to qualified immu-
nity. We apply a two-part inquiry: First, did the defendants’
actions violate the Constitution? Second, if so, was the right
670 CONN v. CITY OF RENO
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 appropri-
ate” 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 situa-
tion he confronted.” Id. at 202. Officers are entitled to quali-
fied 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 delib-
erate 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 constitu-
tional violation occurred, a grant of summary judgment to
either party with regard to qualified immunity would be inap-
propriate.
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
CONN v. CITY OF RENO 671
established on account of the city’s deliberate acts or omis-
sions; liability under the theory of respondeat superior, how-
ever, 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 deliber-
ate indifference; and (3) that these customs or policies were
the moving force behind the employee’s violation of constitu-
tional 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 judg-
ment on the constitutional claims against Robertson and Ash-
ton, 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 disci-
pline. 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-
672 CONN v. CITY OF RENO
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 pre-
dictably 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 Ameri-
can 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 detain-
ees 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 constitu-
tional violations will ensue.
Finally, plaintiffs have made an adequate showing that, had
the City trained its officers, the violation of Clustka’s consti-
tutional 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 Can-
ton, 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
CONN v. CITY OF RENO 673
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 constitu-
tional rights of its citizens is generally a jury question.” Gib-
son, 290 F.3d at 1194-95. We are compelled to deny the
motion for summary judgment on municipal liability for fail-
ure to train.
2. Failure to Adopt and Implement Policies
Plaintiffs also challenge the lack of an official, written pol-
icy 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 writ-
ten 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
6
Deputy Chief Johns was “not sure” if there was a written policy requir-
ing officers to report suicide threats.
674 CONN v. CITY OF RENO
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 imple-
mented 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 evi-
dence that as of April 26, 2006 no such policy had been
adopted and implemented.7
[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 mir-
rors 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 imple-
ment policies on suicide prevention was deliberately indiffer-
ent, 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 munici-
pality should have known — or did know — that Robertson
would be likely to show deliberate indifference in circum-
stances 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 sum-
mary judgment on this issue.
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.
CONN v. CITY OF RENO 675
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.
[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 evi-
dence regarding the two officers for the purpose described
above.
IV. CONCLUSION
Clustka’s surviving children have presented sufficient evi-
dence 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 Rob-
ertson’s violation of Clustka’s constitutional rights.
We therefore reverse the district court’s grant of the defen-
dants’ motion for summary judgment with respect to individ-
ual and municipal liability, with the exception that we affirm
676 CONN v. CITY OF RENO
the grant of summary judgment with respect to the City’s fail-
ure to address Robertson’s deficient performance and its fail-
ure to discipline the individual officers. The case is remanded
to the district court for further proceedings consistent with
this opinion.
REVERSED and REMANDED.