Cherie Harding v. City & County of San Francisco

FILED
NOT FOR PUBLICATION FEB 26 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHERIE HARDING, No. 13-15156
Plaintiff - Appellant, D.C. No. 3:10-cv-4914-LB
v.
MEMORANDUM*
CITY AND COUNTY OF SAN
FRANCISCO; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Laurel D. Beeler, Magistrate Judge, Presiding
Argued and Submitted February 11, 2015
San Francisco, California
Before: SCHROEDER and SILVERMAN, Circuit Judges, and HUCK,** Senior
District Judge.
Appellant Cherie Harding appeals the district court’s grant of summary
judgment on her constitutional and tort claims in favor of Appellees the City and
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Paul C. Huck, Senior District Judge for the U.S.
District Court for Southern Florida, sitting by designation.
County of San Francisco and Deputies Elizabeth Young, Carl Morris, and Tiffany
Cook.1 We affirm.
We agree that no Appellee was liable to Appellant under 42 U.S.C. § 1983,
because Appellant failed to prove that any Appellee violated her constitutional
rights. The tip of Appellant’s little finger was severed when a door slammed on it
during a routine pat-down search conducted by Deputy Young. Appellant has
identified no precedent showing that a jail guard violates a prisoner’s constitutional
rights, under any theory, simply by conducting a routine search. Further, Deputy
Young did not tell Appellant to place her finger in the door frame, or otherwise
direct her hand there; rather, Appellant voluntarily placed her hand on the door
frame. In other words, Appellant’s injury was an unfortunate accident, prompted
by Appellant’s own placement of her hand. Accidents alone are not constitutional
violations. See Estelle v. Gamble, 429 U.S. 97, 106 (1976) (“An accident, although
1
Appellant conceded a number of claims against other jail employees, and
has not appealed the district court’s grant of summary judgment in favor of those
individuals. See Harding v. San Francisco, No. 3:10-cv-04914, D.E. 104 at 11
(N.D. Cal. Dec. 26, 2012).
2
it may produce added anguish, is not on that basis alone to be characterized as
wanton infliction of unnecessary pain.”).2
Appellant also failed to show that any Appellee violated her constitutional
rights following the injury. After the door slammed on Appellant’s finger, Deputy
Young called for help, instructed Appellant to put pressure on the wound, and
waited with Appellant for paramedics. Though Appellant contends that Deputy
Young should have responded more expertly to Appellant’s injury, this alone does
not rise to the level of a constitutional violation. See Simmons v. Navajo Cnty.,
Ariz., 609 F.3d 1011, 1017–18 (9th Cir. 2010) (citation omitted) (deliberate
indifference is found only where the defendant “knows of and disregards an
excessive risk to inmate health or safety”).
Deputy Morris, following the standard policy for safely transporting
prisoners, attempted to shackle Appellant in preparation for emergency transport to
the hospital, causing Appellant some momentary discomfort in the process. While
2
Appellant, as a pretrial detainee, is protected by the Fourteenth
Amendment. See Rivera v. Cnty. of Los Angeles, 745 F.3d 384, 389–90 (9th Cir.
2014). However, cases analyzing the Eighth Amendment—such as Estelle v.
Gamble—inform our disposition of Appellant’s claims. We have held that “pretrial
detainees’ rights under the Fourteenth Amendment are comparable to prisoners’
rights under the Eighth Amendment,” and we apply the same standards to both
types of claims. See Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998) (citations
omitted).
3
this was perhaps unsympathetic to Appellant’s pain and suffering, it was not the
type of “malicious and sadistic” behavior giving rise to a constitutional claim for
excessive force, because Deputy Morris was simply following a sensible policy on
securing inmates and was not attempting to cause Appellant pain, and because
Deputy Morris quickly stopped when given permission to do so by his supervisor.
See Quackenbush v. Cnty. of Santa Barbara, 175 F. App’x 801, 803 (9th Cir.
2006) (use of chest restraints in prisoner transport was not excessive force, because
it was not “malicious and sadistic”) (citation omitted).
Deputy Cook ordered Appellant to clean toilets—a task that Appellant had
previously volunteered for—on Appellant’s return from the hospital, where her
fingertip had been surgically reattached. Deputy Cook told Appellant to clean with
her uninjured hand, and told Appellant she could go to “lockup” if Appellant did
not wish to clean. Appellant opted to clean with her uninjured hand, and suffered
no infection or complications as a result of doing so. Again, while this behavior
may have been unsympathetic, it was not unconstitutional, because Deputy Cook
did not order Appellant to “perform physical labor which is beyond [her] strength,
endangers [her] li[fe] or health, or causes undue pain.” Berry v. Bunnell, 39 F.3d
1056, 1057 (9th Cir. 1994).
4
We also agree that Appellant lacked the evidence required of a constitutional
claim against San Francisco. As previously established, Appellant did not show
that any San Francisco employee violated her constitutional rights, and therefore
any section 1983 claim against San Francisco itself fails as well. Further, even
assuming that Appellant had identified a constitutional violation, she put forward
no evidence that would render San Francisco liable. While section 1983 grants a
limited cause of action against a governmental entity, it does so only in
circumstances where the governing body itself caused the injury by adopting an
unconstitutional policy or practice. See Chew v. Gates, 27 F.3d 1432, 1444 (9th
Cir. 1994) (citing Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658,
694 (1978)). Appellant, however, identified no express policies or unwritten
practices that are unconstitutional.
Finally, we agree with the district court’s grant of summary judgment on
Appellant’s tort claims. Appellant’s negligence and negligent infliction of
emotional distress claims against Deputy Young fail because Deputy Young had
no duty to protect Appellant from the harm she suffered, and because Appellant
caused her own injury. While a jail guard does have a duty to protect inmates, that
duty extends only to reasonably foreseeable harm. Giraldo v. Cal. Dep’t of Corrs.
& Rehab., 168 Cal. App. 4th 231, 245 (2008). Here, the record is undisputed that
5
Deputy Young had no notice that the door that slammed on Appellant’s finger was
broken or otherwise posed a dangerous condition, therefore, Deputy Young had no
duty to ensure that Appellant did not place her own finger in the door frame. In
fact, it was Appellant’s own conduct that caused the injury, as Appellant testified
that she knew the door posed a danger, but nevertheless placed her finger in the
frame. See Beninati v. Black Rock City, LLC, 175 Cal. App. 4th 650, 658 (2009)
(defendant not liable for negligence because it had no duty to protect the plaintiff
from an obvious risk that the plaintiff knowingly assumed).3
Appellant’s intentional infliction of emotional distress (IIED) claims fail as
well. Appellant did not show that Deputies Young or Morris engaged in the kind
of outrageous or extreme conduct required of a California-law IIED claim. See,
e.g., Myung Chang v. Lederman, 172 Cal. App. 4th 67, 86–87 (2009). At most,
Appellant showed that Deputy Morris was insensitive, but this is insufficient for an
IIED claim. See, e.g., Hughes v. Pair, 46 Cal. 4th 1035, 1051 (2009) (“Liability
for intentional infliction of emotional distress ‘does not extend to mere insults,
3
The district court also granted summary judgment on Appellant’s claim
that Deputies Morris and Cook were negligent for, respectively, prying her hands
apart to shackle her and forcing her to clean toilets. Appellant here argues only
that Appellees, in urging that the district court be affirmed, rely on “facts which are
in dispute.” See Reply at 30. Appellant, however, does not identify what facts are
in dispute, nor does she explain how this purported factual dispute supports her
negligence claims against Deputies Morris and Cook.
6
indignities, threats, annoyances, petty oppressions, or other trivialities.’”) (citing
Rest. 2d Torts § 46, com. d). Regardless of whether a jury could find that Deputy
Cook’s conduct was extreme and outrageous under the circumstances, summary
judgment nevertheless was properly granted in Deputy Cook’s favor because
Appellant adduced no evidence that she suffered any serious emotional distress, an
essential element of her claim. See Potter v. Firestone Tire & Rubber Co., 6 Cal.
4th 965, 1004 (1993) (citations omitted).
Further, Appellant’s battery claims failed because Appellant had no evidence
that any Appellee acted with the intent to contact Appellant in a harmful or
offensive manner. See So v. Shin, 212 Cal. App. 4th 652, 669 (2013).
Additionally, under California law, a peace officer is privileged to use reasonable
force, such as in shackling a prisoner, and therefore a California-law battery claim
is a “counterpart” to a federal excessive force claim under section 1983. See Edson
v. City of Anaheim, 63 Cal. App. 4th 1269, 1273–75 (1998) (citing Cal. Pen. Code
§ 835a). As previously established, Appellant did not establish an excessive force
7
claim under section 1983 against any Appellee, and her state-law battery claims
fail for the same reasons.4
Because Appellant did not suffer a constitutional violation or tortious
conduct, the district court properly granted summary judgment to Appellees.
AFFIRMED.
4
Appellant also appeals the district court’s grant of summary judgment on
her claim under the Bane Act, California Civil Code § 52.1. Appellant’s argument
on appeal here consists of three sentences. See Appellant’s Br. at 38. Appellant’s
truncated argument fails. The Bane Act requires, among other things, a showing of
(1) an interference with constitutional rights, and (2) “threats, intimidation, or
coercion.” See Lopez v. Youngblood, 609 F. Supp. 2d 1125, 1143 (E.D. Cal.
2009). Appellant satisfied neither element.
8