Gilbert v. La Paz, County of

1 MGD 2 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Dennis Gilbert, No. CV 18-01792-PHX-DGC (DMF) 10 Plaintiff, 11 v. ORDER [12] La Paz County, et al., [13] Defendants. [14] 15 Plaintiff Dennis Gilbert, who is represented by counsel, brought this civil rights 16 action pursuant to 42 U.S.C. § 1983 against La Paz County and multiple County 17 employees. (Doc. 1.) Defendants move for summary judgment, and Plaintiff opposes. 18 (Docs. 56, 61.) The Court will grant the Motion in part and deny it in part. 19 I. Background 20 Plaintiff alleges the following facts in his Complaint. In August 2017, Plaintiff was 21 incarcerated for a little over a day in the La Paz County Detention Facility (the “Jail”) 22 following his arrest. (Doc. 1.) Plaintiff has a seizure disorder, is partially paralyzed in his 23 left arm and leg, uses a cane to walk, and has a qualified disability under the Americans 24 with Disabilities Act (ADA). (Id. ¶¶ 7, 81.) At the Jail, Plaintiff was housed in a non25 ADA-compliant cell that had a toilet and shower and was told to shower. (Id. ¶¶ 11, 17, 26 22, 24.) Plaintiff fell while getting out of the shower and shattered the bones in his left arm 27 and elbow, requiring surgery. (Id. ¶¶ 28-32, 52-54.) The charge against Plaintiff was 28 dropped, and Plaintiff was released from the Jail and went to live with his sister. (Id. ¶¶ 551 56.) In September 2017, Plaintiff was hospitalized because he became depressed over his 2 diminished physical condition, and in February 2018 he moved to a skilled nursing facility 3 where he will need to remain for the rest of his life. (Id. ¶¶ 57-60.) 4 In Count One, Plaintiff asserts a Fourteenth Amendment claim under 42 U.S.C. 5 § 1983 against Defendants Detention Officers Redman, Jarramillo, Thompkinson, Conley, 6 McIntosh, Brinkerhoff, Roberts, Fleming, and Ruiz in their individual capacities.1 (Id. 7 ¶¶ 61-70.) In Count Two, Plaintiff asserts a Monell claim against Defendants La Paz 8 County and La Paz County Sheriff Risen, in both his individual and official capacity. (Id. 9 ¶¶ 71-73.) In Count Three, Plaintiff asserts an ADA claim against La Paz County, and in 10 Count Four, he asserts a negligence claim against La Paz County. (Id. ¶¶ 79-88.) Plaintiff 11 seeks damages, attorneys’ fees and costs. (Id. at 11-12.) 12 II. Summary Judgment Standard 13 A court must grant summary judgment “if the movant shows that there is no genuine 14 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 15 Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The 16 movant bears the initial responsibility of presenting the basis for its motion and identifying 17 those portions of the record, together with affidavits, if any, that it believes demonstrate 18 the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323 . 19 If the movant fails to carry its initial burden of production, the nonmovant need not 20 produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d 1099 , 21 1102-03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden shifts 22 to the nonmovant to demonstrate the existence of a factual dispute and that the fact in 23 contention is material, i.e., a fact that might affect the outcome of the suit under the 24 governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable 25 jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 26 242, 248, 250 (1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th [27] 28 1 Defendants Thompkinson, McIntosh and Brinkerhoff were later dismissed from this action. (Doc. 31.) 1 Cir. 1995). The nonmovant need not establish a material issue of fact conclusively in its 2 favor, First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); however, 3 it must “come forward with specific facts showing that there is a genuine issue for trial.” 4 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal 5 citation omitted); see Fed. R. Civ. P. 56(c)(1). 6 At summary judgment, the judge’s function is not to weigh the evidence and 7 determine the truth but to determine whether there is a genuine issue for trial. Anderson, [8] 477 U.S. at 249 . In its analysis, the court must believe the nonmovant’s evidence and draw 9 all inferences in the nonmovant’s favor. Id. at 255. The court need consider only the cited 10 materials, but it may consider any other materials in the record. Fed. R. Civ. P. 56(c)(3). 11 III. Facts 12 Upon arrival at the Jail and in the booking/intake area, detainees receive a risk 13 assessment by an officer or a nurse. If it is nighttime and the nurse is not on duty, the 14 screening is performed by the booking officer and the nurse will perform a risk and needs 15 assessment the following day. (Doc. 57 (Defs.’ Statement of Facts (DSOF)) ¶¶ 33-34.) 16 The screening includes an assessment that includes “mobility restrictions and physical 17 handicaps, etc.” (Id. ¶ 35.) At the time of Plaintiff’s incarceration, a medical provider 18 would perform a physical examination of new detainees on Fridays to ensure that any 19 medical, dental, or other aids to impairment were provided. (Id. ¶¶ 45-46.) 20 On August 29, 2017, around 9:40 p.m., Plaintiff was arrested and booked into the 21 Jail. (Id. ¶ 69.) At the time, Plaintiff was 57 years old and had been disabled since suffering 22 a traumatic brain injury in a 1989 motorcycle accident that left him with a seizure disorder 23 and cognitive issues. (Doc. 62 (Pl.’s Separate Statement of Facts) at 11 ¶ 49.) In 2013, 24 Plaintiff suffered a series of strokes that weakened the entire left side of his body and 25 partially paralyzed his left arm and leg. (Id. ¶ 50.) Upon his arrival at the Jail, Plaintiff 26 was not using any walking device or wheelchair. (Doc. 57 ¶ 70.) Plaintiff’s gait was weak 27 and slow on his left side and Defendants Redman and Jaramillo physically assisted Plaintiff 28 while in the booking room and in the shower room. (Id. ¶ 71.) 1 Because it was nighttime, the nurses were not on duty and Defendant Redman 2 performed an initial screening of Plaintiff using the Jail’s “Risk and Needs Screening” 3 report form. (Id. ¶ 72.) Redman noted that Plaintiff had a stroke in 2014, that he had 4 “restricted mobility, or a physical handicap,” as well as diabetes and seizures or epilepsy. 5 (Id. ¶ 73.) Jail policy and the booking process required that Plaintiff take a shower, and 6 the shower room in the booking/intake area has “reasonable accommodations” for 7 detainees who may have limited mobility or physical disabilities including industrial-sized, 8 thick rubber mats on the floor, a shower stool/bench, and a walk-in shower. (Id. ¶¶ 36-37, 9 74.) Plaintiff was physically escorted in and out of the change-out shower room by 10 Defendant Jaramillo. (Id. ¶ 75.) Jail staff provided Plaintiff with standard issue non-slip 11 shoes, and after Plaintiff completed the booking and showering process, Jaramillo retrieved 12 a wheelchair to escort Plaintiff to the intake cell. (Id. ¶¶ 76-77.) Plaintiff was not issued a 13 cane, walker, or wheelchair because of his inability to fully use his left arm and due to 14 security concerns. (Id. ¶ 78.) “Plaintiff was instructed to tell Jail staff [] if he needed to 15 use the restroom or needed anything else and staff would provide assistance.” (Id. ¶ 79.) 16 Plaintiff had no issues during the first night in the intake cell, and the following 17 morning, Licensed Practical Nurse Jeff Bissell performed a medical screening. (Id. ¶¶ 45, 18 81.) Bissell noted Plaintiff’s seizures, diabetes, left-side weakness due to stroke, and his 19 restricted mobility and physical handicap. (Doc. 62 at 9 ¶ 31.) Afterwards, Nurse Bissell 20 cleared Plaintiff to be housed in the medical unit due to his “left-sided weakness and [] 21 trouble moving around, walking” and seizure condition. (Doc. 57 ¶¶ 83-84.) Plaintiff 22 disputes paragraph 83, asserting that Bissell recommended Plaintiff be housed in the 23 medical cells, stating the he instead was placed in the juvenile cell. (Doc. 62 at 5 ¶ 83.) 24 Around 6:45 p.m. on August 30, 2017, Defendant Conley moved Plaintiff from the 25 intake cell via a wheelchair into a single jail cell known as the juvenile cell inside the 26 medical dorm because the two medical cells were already occupied and the juvenile cell 27 had bottom-bunk accessibility. (Doc. 57 ¶¶ 85-86.) The only other option in the medical 28 dorm was to house Plaintiff in a “boat,” which is similar to a long table that sits about six 1 inches off the ground and has a mattress on top; otherwise, Plaintiff would be housed with 2 the other County detainees. (Id. ¶¶ 88, 90.) The “boat” was not advisable because of 3 Plaintiff’s physical limitations, nor was housing with other County detainees due to 4 Plaintiff’s vulnerability. (Id. ¶¶ 89, 91.) Therefore, Plaintiff was housed in the juvenile 5 cell until he could be examined by a medical provider. (Id. ¶ 91.) Plaintiff disputes these 6 statements, asserting that “Conley did not act in accordance with Bissell’s medical 7 clearance” and that Conley could have moved a detainee from one of the medical cells to 8 the juvenile cell and housed Plaintiff in a medical cell. (Doc. 62 at 5 ¶¶ 85, 88, 91.) Conley 9 allowed Plaintiff to have access to the dayroom by leaving two doors open. (Doc. 57 ¶ 92.) 10 The juvenile cell has one double-bunk bed with a toilet and a metal shower. 11 (Doc. 57 ¶ 62.) The juvenile cell does not have grab bars around the toilet or around the 12 exterior of the metal shower, which has a 27-inch wide opening. (Doc. 62 at 9 ¶¶ 21, 24.) 13 The inside of the metal shower has no grab bars, shower seat or rubber mat, and there is a 14 10-inch shower curb. (Id. ¶¶ 22-23.) The two medical cells at the Jail have walk-in showers 15 with grab bars. (Id. ¶ 26.) The 1991 ADA requires showers to be at least 35-inches wide, 16 have a shower seat, grab bars, and a curb no higher than half an inch. (Id. ¶ 28.) 17 After being placed in the juvenile cell, Plaintiff went to sleep until approximately 18 11:00 p.m. (Id. ¶ 94.) Starting at 11:00 p.m., Detention Officers Ruiz and Fleming began 19 locking down all the pods, which means that all televisions are turned off, detainees are 20 required to return to their cells, and lights are turned off. (Id. ¶¶ 95-96.) Around 11:00 21 p.m., Fleming did a security check of the medical and juvenile cells. (Id. ¶ 97.) Plaintiff 22 disputes that “Fleming conducted any checks on plaintiff while in the juvenile cell,” 23 asserting that this is not reflected in Defendants’ “Officer Location Incident form.” 24 (Doc. 62 at 6 ¶ 97.) 25 After lockdown, Plaintiff awoke and decided to shower. (Doc. 57 ¶ 98.) “Plaintiff 26 did not request assistance from jail staff prior to showering or request a stool like the one 27 he used in the shower the day before.” (Id. ¶ 99.) Plaintiff did contact the control tower 28 via intercom after lockdown before he decided to shower. While Plaintiff was looking for 1 a light switch, he instead hit the intercom button and a female voice asked him what he 2 needed. (Id. ¶¶ 100, 102.) Plaintiff told the female that “he was looking for a light switch 3 so he could shower.” (Id. ¶ 103.) The officer did not tell Plaintiff he could not take a 4 shower or to wait until an officer came to help him. (Doc. 62 at 12 ¶¶ 58-59.) The officer 5 on the intercom told Plaintiff, “this is not the light switch. It’s the intercom.” (Id. ¶ 60.) 6 Plaintiff apologized to the officer and then took his shower. (Id. ¶ 61.) 7 According to Defendants, there was no female officer in the control tower at that 8 time. Defendant Roberts, a male detention officer, was in the control tower. (Doc. 57 9 ¶ 104.) Roberts did not have visual contact with Plaintiff, did not know Plaintiff was 10 disabled, and was not told Plaintiff wanted to shower. (Id. ¶¶ 105-106.) Plaintiff disputes 11 this statement, stating that he “did inform the Tower officer Roberts that he wanted to take 12 a shower” and “Roberts failed to inform the floor officers.” (Doc. 62 at 6 ¶ 108.) 13 Plaintiff “decided to shower in the middle of the night, after lockdown, without any 14 accommodations and without wearing his non-slip shoes.” (Doc. 57 ¶ 109.) When Plaintiff 15 stepped out of the shower, he held onto the edge of the stall. The floor “felt like it was 16 made of ice. Plaintiff’s feet slid out from under him, and he fell. He heard his bone snap 17 as he hit [the] floor.” (Doc. 62 at 13 ¶ 62.) 18 Prior to his accident, Plaintiff did not complain about the shower or the cell 19 accommodations. (Doc. 57 ¶ 110.) Plaintiff did not “request a single accommodation or 20 ask for any help from any detention officer” and “admits he requested no 21 assistance/accommodations prior to deciding to shower.” (Id. ¶ 111.) Plaintiff undressed 22 without assistance, entered the shower, and fell after exiting the shower. (Id. ¶¶ 112-113.) 23 After he fell, Plaintiff used the intercom in the cell to request assistance from the Control 24 Tower. (Id. ¶ 114.) Around midnight, Officer Roberts received Plaintiff’s intercom call 25 and immediately radioed Fleming and Ruiz to tell them Plaintiff had fallen in the cell and 26 needed assistance. (Id. ¶ 115.) Fleming and Ruiz responded immediately and assisted 27 Plaintiff by obtaining a wheelchair and bringing him to the intake area to prepare for [28] 1 transportation to the hospital. (Id. ¶¶ 116-117.) Ruiz gave Plaintiff a Tylenol for pain. (Id. 2 ¶ 118.) 3 Officer Roberts transported Plaintiff to the La Paz Regional Hospital in a sheriff’s 4 office vehicle that was low to the ground, making it easier for Plaintiff to enter and exit, 5 and Plaintiff was handcuffed in front of his body. (Id. ¶ 124.) Roberts also accompanied 6 Plaintiff in the ambulance from La Paz Regional Hospital to the Banner hospital in 7 Phoenix. (Id. ¶ 125.) 8 The Jail does not issue physical handbooks to detainees describing the Jail’s rules 9 and regulations, officers do not explain the rules to the detainees, and the Jail’s “required 10 ADA orientation consists only of the detention officer telling the inmate he needs to get on 11 the [electronic touch screen] kiosk to get information.” (Doc. 62 at 10 ¶ 41.) Officers do 12 not explain how to make an ADA claim or request an accommodation and only tell 13 detainees to review the kiosk. (Id. ¶ 43.) The burden is on detainees to access the kiosk to 14 read and understand the jail rules and the grievance process. (Id. ¶ 44.) The inmate 15 handbook has no information about the ADA, requesting an accommodation, or grieving 16 an ADA issue. (Id. ¶ 47.) At the time of Plaintiff’s fall, there was no kiosk in the medical 17 area or near the juvenile cell; the nearest kiosk was in the booking area. (Id. ¶ 48.) 18 Defendant Sheriff Risen took office on January 1, 2017. At the time of Plaintiff’s 19 slip and fall the prior administration’s ADA Policy was in effect. (Doc. 57 ¶¶ 5, 13.) Both 20 Risen and Jail Commander Suffle acknowledge that, after the fact, they because aware 21 “that an ADA policy existed and that certain portions were not followed during the relevant 22 time period,” including that an ADA coordinator had not been appointed and therefore “no 23 ADA coordinator had looked for ‘barriers’ to programs and services.” (Id. ¶ 14.) 24 The Jail’s ADA policy “instructs employees not to unlawfully discriminate against 25 any person on the basis of a person’s disability,” and provides for barrier-free access to the 26 facility, programs, and services consistent with reasonable accommodation under the ADA 27 and security requirements. (Doc. 57 ¶ 24.) Detention officers learn ADA compliance “in 28 the academy, from their field training [], and from on-the-job training about the foregoing 1 policies and procedures and ADA standards regarding caring for disabled inmates.” (Id. 2 ¶ 30.) Plaintiff disputes this statement, asserting that Defendants’ own exhibits “indicate 3 that detention officers receive a 2 hour ‘overview’ of the ADA at the academy” and that 4 “none of the academy training appears to be related to reasonable accommodations for 5 inmates.” (Doc. 62 at 4 ¶ 30.) Plaintiff further asserts that “[t]he ADA is not even 6 mentioned in the La Paz County Jail’s [] training materials.” (Doc. 62 at 4 ¶ 30.) Plaintiff 7 also disputes Defendants’ assertion that detention officers “are trained that they may need 8 to assist inmates with physical needs.” (Doc. 57 ¶ 32; Doc. 62 at 4 ¶ 32.) Plaintiff contends 9 that La Paz County Jail has “no ADA training curriculum and lesson plans for detention, 10 contract and volunteer personnel” and there is no attendance documentation for all ADA 11 training provided to such personnel between 2012 and 2017. (Doc. 62 at 7 ¶¶ 3, 6.) 12 IV. Discussion 13 A. Count One: Fourteenth Amendment 14 Plaintiff states in his Response that he withdraws his Fourteenth Amendment 15 deliberate indifference claim against Defendants Fleming, Ruiz, Redman, Roberts and 16 Jarramillo, and that he asserts this claim only against Defendant Conley. (Doc. 61 at 8 17 n.1.) Because the only claim brought against Defendants Fleming, Ruiz, Redman, Roberts 18 and Jarramillo is the Fourteenth Amendment claim in Count One, the Court will dismiss 19 these Defendants from the action. The Court will address the claim against Defendant 20 Conley. 21 1. Legal Standard 22 The Fourteenth Amendment protects a pre-trial detainee’s right to be free from 23 punishment. Bell v. Wolfish, 441 U.S. 520, 533 (1979). A pretrial detainee’s Fourteenth 24 Amendment claim regarding the conditions of his confinement is evaluated under an 25 objective deliberate indifference standard. See Gordon v. Cnty. of Orange, 888 F.3d 1118 , 26 1124-25 (9th Cir. 2018). A detainee must demonstrate that a defendant’s acts or omissions 27 were objectively unreasonable and identify objective facts indicating the “challenged 28 governmental action is not rationally related to a legitimate governmental objective or that 1 it is excessive in relation to that [objective].” Kingsley v. Hendrickson, 135 S. Ct. 2466 , 2 2473-74 (2015). 3 A condition is punitive if it is “intended to punish,” “excessive in relation to its non4 punitive purpose,” or “employed to achieve objectives that could be accomplished in so 5 many alternative and less harsh conditions.” Jones v. Blanas, 393 F.3d 918, 934 (9th Cir. 6 2004) (citations omitted). But if a particular condition or restriction of pre-trial detention 7 is “reasonably related to a legitimate governmental objective, it does not, without more, 8 amount to ‘punishment.’” Bell, 441 U.S. at 539 . Legitimate, non-punitive government 9 interests include “ensuring a detainee’s presence at trial, maintaining jail security, and 10 effective management of a detention facility.” Jones, 393 F.3d at 932 (citing Hallstrom v. 11 City of Garden City, 991 F.2d 1473, 1484 (9th Cir. 1993)). 12 Thus, to find that a condition of confinement for pre-trial detainees amounts to a 13 constitutional violation under the Fourteenth Amendment, the Court must determine that 14 the condition: “(1) imposes some harm to the pre-trial detainees that significantly exceeds 15 or is independent of the inherent discomforts of confinement; and (2) (a) is not reasonably 16 related to a legitimate governmental objective or (b) is excessive in relation to the 17 legitimate governmental objective.” Graves v. Arpaio, No. CV-77-0479-PHX-NVW, 2008 18 WL 4699770 , at *7 (D. Ariz. Oct. 22, 2008) (emphasis in original); Demery v. Arpaio, 378 19 F.3d 1020, 1029 (9th Cir. 2004) (“For a particular governmental action to constitute 20 punishment, (1) that action must cause the detainee to suffer some harm or ‘disability,’ and 21 (2) the purpose of the governmental action must be to punish the detainee”). 22 Corrections officials “should be accorded wide-ranging deference in the adoption 23 and execution of policies and practices that in their judgment are needed to preserve 24 internal order and discipline and to maintain institutional security.” Bell, 441 U.S. at 547 ; 25 Graves, 2008 WL 4699770 , at *6 (in determining whether a particular condition of 26 confinement is “reasonably related to maintaining security and order and operating the 27 institution in a manageable fashion, courts ordinarily should defer to the expert judgment 28 of correction officials in the absence of substantial evidence that indicates officials have 1 exaggerated their response to these considerations”). But “if a restriction or condition is 2 not reasonably related to a legitimate goal—if it is arbitrary and purposeless—a court 3 permissibly may infer that the purpose of the governmental action is punishment that may 4 not be constitutionally inflicted upon detainees qua detainees.” Bell, 441 U.S. at 539 . 5 2. Discussion 6 Defendants argue that Plaintiff’s alleged deprivation of not being able to shower 7 safely was not caused by actions of the individual Defendants. (Doc. 56 at 13.) Defendants 8 assert that Plaintiff was housed in a cell with bottom-bunk accessibility, near medical and 9 Jail staff, and with an intercom for Plaintiff to communicate with the cell tower if he needed 10 assistance. (Id.) They further contend that Plaintiff had showered the day before and was 11 aware of the Jail’s walk-in shower, rubber mats, and shower stool, but chose not to request 12 assistance with showering and “effectively foreclosed the on-duty Jail staff’s ability to 13 assist Plaintiff with showering either by providing him with accommodations to shower in 14 his jail cell (such as a shower chair) or to take him to another location to shower (such as 15 the intake shower).” (Id.) 16 Plaintiff argues that his “evidence shows Conley’s actions are directly linked to 17 [P]laintiff’s fall,” that “Conley was fully aware of Plaintiff’s disability because he had to 18 use a wheelchair to move him,” and that Conley “disregarded Nurse Bissell’s direction to 19 house Plaintiff in a medical cell (with showers with grab bars) and intentionally decided to 20 house Plaintiff in the Juvenile cell with the non-compliant shower.” (Doc. 61 at 8.) 21 Plaintiff contends that Conley “aggravated the risk to Plaintiff by providing him with soap 22 and a towel and telling him to take a shower.” (Id.) This last statement—that Conley told 23 Plaintiff to take a shower—is in Plaintiff’s Response brief. Plaintiff does not cite any 24 evidence in the record to support this assertion. See Barcamerica Int’l USA Trust v. Tyfield 25 Imps., Inc., 289 F.3d 589 , 593 n.4 (9th Cir. 2002) (“arguments and statements of counsel 26 are not evidence”). 27 The undisputed evidence in this case shows that Plaintiff was placed in the juvenile 28 cell because the two medical cells were occupied. There is no evidence in the record that 1 Plaintiff’s placement in the juvenile cell was intended to punish him. Plaintiff’s proposed 2 alternative – moving one of the detainees out of a medical cell – is not reasonable in the 3 absence of evidence that the other detainee did not need the medical cells. Nor does 4 Plaintiff dispute that he had the alternative of requesting a reasonable accommodation so 5 he could shower safely, but did not make such a request. 6 Even if Conley had told Plaintiff to take a shower, Plaintiff does not present 7 evidence that Conley told him to shower in the non-accessible cell shower, and Plaintiff 8 does not dispute that after Conley moved him to the juvenile cell he slept for five hours 9 and then decided to shower in his cell without requesting assistance from anyone. 10 Given these facts, the Court cannot conclude that Defendant Conley imposed harm 11 on Plaintiff that significantly exceeded or was independent of the inherent discomforts of 12 confinement, or that Conley action of placing Plaintiff in the juvenile cell was not 13 reasonably related to a legitimate governmental objective or was excessive in relation to 14 the legitimate governmental objective. Graves, 2008 WL 4699770 at *7. The choice to 15 house Plaintiff in the juvenile cell was reasonably related to the governmental objective of 16 maintaining institutional security while housing Plaintiff as safely and as close to the 17 medical unit as possible. There is no evidence that housing Plaintiff in the juvenile cell 18 was arbitrary or purposeless. 19 Plaintiff’s citation to Frost v. Agnos, 152 F.3d 1124 (9th Cir. 1998), does not change 20 the Court’s analysis. In Frost, the Ninth Circuit Court of Appeals found a triable issue of 21 fact regarding whether the failure to provide the plaintiff with adequate shower facilities 22 violated the plaintiff’s constitutional rights. 152 F.3d at 1129-30 (“slippery floors without 23 protective measures could create a sufficient danger [to a disabled detainee] to warrant 24 relief”). The plaintiff in Frost was a pre-trial detainee with a leg cast and crutches who, 25 over a period of months, fell and injured himself several times at the county jail— 26 sometimes while showering in non-accessible showers, sometimes while carrying his food 27 tray, and once when he climbed 48 steps while holding his crutches because two officers 28 refused to carry his crutches. Id. at 1127 . The guards in Frost were aware of the plaintiff’s 1 falls, and the plaintiff filed several grievances advising jail officials of the risks he faced. [2] Id. at 1129 . 3 Unlike Frost, Plaintiff in this case did not have a history of falls and injuries at the 4 Jail of which officials were aware, and there is no evidence they refused to assist him. 5 While the evidence shows that Plaintiff’s condition was obvious and officers were aware 6 of some risk, the evidence also shows that they assisted him and made accommodations 7 due to his condition. They took reasonable measures by housing him in the juvenile cell 8 with the lower bunk near the medical unit, and they provided Plaintiff with adequate 9 shower facilities after intake when they knew he was going to shower. Plaintiff cannot 10 show that Conley housing him for one night in the juvenile cell with a non-accessible 11 shower, when he had been instructed to ask for assistance, was “more than negligence” or 12 even “reckless disregard.” Castro, 833 F.3d at 1071 (to support Fourteenth Amendment 13 claim, a plaintiff must “prove more than negligence but less than subjective intent— 14 something akin to reckless disregard”). 15 The Court will grant summary judgment to Defendant Conley on Plaintiff’s 16 Fourteenth Amendment claim in Count One. 17 3. Qualified Immunity 18 Even if the Court did find a question of fact regarding whether Plaintiff’s Fourteenth 19 Amendment rights were violated, Defendant Conley would be entitled to qualified 20 immunity. 21 (a) Legal Standard 22 Government officials are entitled to qualified immunity from civil damages unless 23 their conduct violates “clearly established statutory or constitutional rights of which a 24 reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). 25 Officials are not entitled to qualified immunity if “(1) they violated a federal statutory or 26 constitutional right, and (2) the unlawfulness of their conduct was ‘clearly established at 27 the time.’” District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (quoting Reichle v. 28 Howards, 566 U.S. 658, 664 , (2012)). Courts may address either prong first, depending 1 on the circumstances in the particular case. Pearson v. Callahan, 555 U.S. 223, 230-32 , 2 235-36 (2009). 3 For a right to be clearly established, there does not have to be a case directly on 4 point, but “‘existing precedent must have placed the statutory or constitutional question 5 beyond debate.’” White v. Pauly, 137 S. Ct. 548, 551 (2017) (quoting Mullenix v. Luna, [6] 136 S. Ct. 305, 308 (2017)). A right is clearly established when case law has been “earlier 7 developed in such a concrete and factually defined context to make it obvious to all 8 reasonable government actors, in the defendant’s place, that what he is doing violates 9 federal law.” Shafer v. Cnty. of Santa Barbara, 868 F.3d 1110, 1117 (9th Cir. 2017) (citing 10 White, 137 S. Ct. at 551 ). To determine whether qualified immunity applies, the court must 11 first identify the federal or constitutional right at issue; then it must attempt to “identify a 12 case where an officer acting under similar circumstances as [the defendant] was held to 13 have violated” that right. Id. If there is no such case, then the right was not clearly 14 established, and the officer is protected from suit. See id. at 1117-18. “This is not to say 15 that an official action is protected by qualified immunity unless the very action in question 16 has previously been held unlawful, but it is to say that in the light of pre-existing law the 17 unlawfulness must be apparent.” Hope v. Pelzer, 536 U.S. 730, 739 (2002) (internal 18 citations omitted). 19 (b) Discussion 20 The relevant question is whether short-term placement of Plaintiff in a non-ADA 21 equipped cell violates clearly established rights. Plaintiff responds that even before the 22 ADA was adopted, “courts recognized that disabled inmates’ 8th [A]mendment rights were 23 violated where disabled inmates were not provided with physical accommodations 24 necessary because of their disabilities, including adequate toilet and shower facilities.” 25 (Doc. 61 at 8.) Plaintiff again cites Frost v. Agnos, which the Court finds inapposite for 26 reasons explained above. Plaintiff also cites Casey v. Lewis, 834 F. Supp. 1569 (D. Ariz. 27 1993), LaFaut v. Smith, 834 F.2d 389, 392-94 (4th Cir. 1987), and Ruiz v. Estelle, 503 F. 28 1 Supp. 1265, 1345 (S.D. Tex. 1980), rev’d in part and aff’d in part, 679 F.2d 1115 (5th Cir. 2 1982), opinion amended, 688 F.2d 266 (5th Cir. 1982). 3 In Casey, the district court found that “[d]isabled inmates must be provided with 4 physical accommodations necessary because of their disabilities, including adequate toilet 5 and shower facilities.” 834 F. Supp. at1581 (citing LaFaut, 834 F.2d at 392 -94 and Ruiz, 6 503 F. Supp. at 1345). But the court further found that “[t]he duration of confinement in 7 the alleged condition is relevant in determining whether a constitutional violation exists.” 8 Id. (citing Hutto v. Finney, 437 U.S. 678, 686 (1978) (“It is equally plain, however, that 9 the length of confinement cannot be ignored in deciding whether the confinement meets 10 constitutional standards.”), and Hoptowit v. Ray, 682 F.2d 1237, 1258 (9th Cir. 1982) (“the 11 longer the prisoner is without such benefits, the closer it becomes to being an unwarranted 12 infliction of pain”)). Casey found that at the time of the filing of the action, 68 prisoners 13 in the Arizona Department of Corrections were confined to wheelchairs, had artificial 14 limbs, or were partially paralyzed. Id. at 1582. The Court found that inaccessible 15 bathrooms, showers, and cells resulted in several prisoners falling or being unable to 16 shower, in violation of their constitutional rights. Id. 17 In LaFaut, the plaintiff was a federal prisoner, paraplegic, and confined to a 18 wheelchair. 834 F.2d at 390 . The plaintiff was placed in a “wet room” with no handicap 19 facilities. Id. at 392 . In particular, the toilet was surrounded by three walls and had no 20 railing. Because the area was too small to allow the plaintiff to transfer himself, he had to 21 lie on the floor, drag his body across it, and pull himself up onto the commode. Id. at 392 . 22 “[I]t was two months before any significant attempt was made to modify the toilet 23 facilities,” and another month passed before the plaintiff was transferred to a room with 24 adequate facilities. Id. The Fourth Circuit found that the warden was aware of the problem 25 and there was “no apparent justification for the delay.” Id. at 393 . The court found “that 26 the conditions under which appellant was confined for nearly eight months fell far short of 27 meeting the ‘broad and idealistic concepts of dignity, civilized standards, humanity, and [28] 1 decency . . . .’ embodied in the Eighth Amendment.” Id. at 394 (quoting Estelle v. Gamble, [2] 429 U.S. 97, 102 (1976) (other citation omitted)). 3 In Ruiz, a class action, the Texas district court focused primarily on overcrowding 4 in the Texas prisons and its effects on the conditions of confinement. 503 F. Supp. 1265 . 5 Plaintiff cites one portion of the decision addressing the care of prisoners with mental 6 disabilities in which the court found that the Texas Department of Corrections “ha[d] taken 7 no steps to obtain alternative care for such inmates.” Id. at 1345 (“The fact that unusual 8 accommodations may be necessary, in light of their special needs, to accomplish the 9 provision of minimal conditions of incarceration does not absolve prison officials of their 10 duty toward handicapped inmates.”) 11 Defendants argue that all of the cases cited by Plaintiff “involve circumstances 12 where disabled inmates were not provided any physical accommodations—a fact that 13 undisputedly does not exist in this circumstance because Plaintiff was provided shower 14 accommodations in the short time he was present at the Jail and instructed to ask for any 15 additional assistance.” (Doc. 68 at 7.) Defendants further contend that none of the cases 16 cited by Plaintiff required an inmate to be placed in a jail cell “with an en-suite 17 accommodating shower.” (Id.) 18 The Court agrees that none of the cases cited by Plaintiff put Defendant Conley on 19 notice that placing Plaintiff for a few hours in a cell without an accessible shower, with 20 instructions and means to call if he needed assistance, violated a federal statutory or 21 constitutional right or that the unlawfulness of his conduct was clearly established at the 22 time. The cases cited by Plaintiff all relied on the duration of confinement in determining 23 whether there is a constitutional violation. Here, Plaintiff was in the cell was for a few 24 hours and certain accommodations were made for his condition in the form of a low bunk 25 and placing him away from other detainees. It would not be clear from the cited cases that 26 the short-term placement in the juvenile cell violated Plaintiff’s rights. Accordingly, 27 Defendant Conley is entitled to qualified immunity and the Court will grant summary 28 judgment to Conley and dismiss him from this action. 1 B. Count Two: Failure to Train 2 Plaintiff asserts Count Two against La Paz County and Sheriff Risen. (Doc. 1 ¶¶ 713 78.) Plaintiff alleges that Risen failed to train Jail detention officers on how to comply 4 with the ADA and that “[t]he conduct of La Paz County and/or Sheriff Risen was both the 5 cause in fact and the proximate cause of the violation of [Plaintiff’s] 14th Amendment 6 rights.” (Id. at 9-10.) Plaintiff sues Risen in his official capacity.2 7 1. Legal Standard 8 A local government may be held liable under § 1983 for a constitutional violation 9 if that violation occurred as a result of the municipality’s official policy or custom. Monell 10 v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 94 (1978). “Official municipal 11 policy includes the decisions of a government’s lawmakers, the acts of its policymaking 12 officials, and practices so persistent and widespread as to practically have the force of law.” 13 Connick v. Thompson, 563 U.S. 51, 61 (2011). A municipality may also be liable if it has 14 a policy of inaction and such inaction amounts to a failure to protect constitutional rights. 15 City of Canton v. Harris, 489 U.S. 378, 388 (1989). 16 “[A] local government’s decision not to train certain employees about their legal 17 duty to avoid violating citizens’ rights may rise to the level of an official government policy 18 for purposes of § 1983.” Connick, 563 U.S. at 60 . To support a Monell claim for failure 19 to train under § 1983, a plaintiff must allege facts demonstrating that the local 20 government’s failure to train amounts to “deliberate indifference to the rights of persons 21 with whom the [untrained employees] come into contact.” Connick, 563 U.S. at 61 (citing 22 City of Canton, 489 U.S. at 388 ). [24] 25 2 Although Plaintiff initially indicated that he was suing Risen in his individual capacity as well, Plaintiff makes no argument in his Response regarding Risen’s liability [26] in his individual capacity. Moreover, Plaintiff has failed to offer evidence to support an individual-capacity claim showing that Risen “was personally involved in his alleged [27] constitutional deprivation by, for example, acting, or failing to act, in a manner that was deliberately indifferent” to Plaintiff’s constitutional rights. Olivier v. Baca, 913 F.3d 852 , [28] 858 (9th Cir. 2019) (citation omitted). Therefore, Plaintiff appears to have abandoned any individual-capacity claim against Risen and the Court will not address this claim. 1 Deliberate indifference may be shown “if the need to train was obvious and the 2 failure to do so made a violation of constitutional rights likely.” City of Canton, 489 U.S. 3 at 390. The plaintiff must allege facts to support that “in light of the duties assigned to 4 specific officers or employees, the need for more or different training is obvious, and the 5 inadequacy so likely to result in violations of constitutional rights, that the policy-makers 6 . . . can reasonably be said to have been deliberately indifferent to the need.” Clement v. 7 Gomez, 298 F.3d 898, 905 (9th Cir. 2002). It is “ordinarily necessary” to allege facts 8 demonstrating a pattern of similar constitutional violations by untrained employees to 9 demonstrate deliberate indifference for purposes of a failure-to-train claim. Connick, 563 10 U.S. at 62. By showing a pattern of similar violations, a plaintiff can establish that 11 policymakers were on “actual or constructive notice that a particular omission in their 12 training program causes employees to violate citizens’ constitutional rights.” Id. Thus, a 13 Monell claim generally must be based on more than “a single constitutional deprivation, a 14 random act, or an isolated event.” Castro v. Cnty. of Los Angeles, 797 F.3d 654, 671 (9th 15 Cir. 2015). 16 2. Discussion 17 To support Monell liability, the plaintiff must first allege an underlying 18 constitutional violation. See Quintanilla v. City of Downey, 84 F.3d 353, 355 (9th Cir. 19 1996). As the Court previously found, the evidence fails to support a Fourteenth 20 Amendment violation. 21 Even if the Court found a constitutional violation, the evidence would need to 22 support “[a] pattern of similar constitutional violations by untrained employees,” which is 23 “‘ordinarily necessary’ to demonstrate deliberate indifference for purposes of failure to 24 train.” Connick, 563 U.S. at 62 (quoting Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397 , 25 409 (1997)). This requires a plaintiff to show that “policymakers were on actual or 26 constructive notice that a particular omission in their training program causes [] employees 27 to violate citizens’ constitutional rights,” but chose not to remedy the training program. Id. 28 at 61. 1 Defendants argue that Plaintiff has failed to point to any specific deficiency in the 2 County’s policies and training that directly caused his constitutional deprivation and there 3 are no facts demonstrating that the County was on notice that its policies were deficient. 4 (Doc. 56 at 19.) Plaintiff responds that the Jail “appears to have a long standing custom, 5 policy or practice of refusing to comply with the ADA” because no ADA coordinator has 6 been appointed, “none of the Jail’s services, policies and practices have ever been evaluated 7 to determine compliance with ADA requirements, and no effort has ever been made to 8 identify and remedy barriers in the jail” (Doc. 61 at 10.) 9 Although Plaintiff’s evidence of a failure to fully comply with the ADA is 10 concerning, Plaintiff has not presented any evidence of a pattern of similar constitutional 11 violations, such as falls by qualified individuals with disabilities in non-ADA-compliant 12 showers or facilities. As such, the record evidence fails to establish that Jail officials were 13 on actual or constructive notice that a particular omission in their training program would 14 cause detention officers to violate a citizen’s constitutional rights. 15 A plaintiff may still prove a failure-to-train claim without showing a pattern of 16 constitutional violations where a violation “may be a highly predictable consequence of a 17 failure to equip law enforcement officers with specific tools to handle recurring situations.” 18 Long v. Cnty. of L.A., 442 F.3d 1178, 1186 (9th Cir. 2006) (internal quotation marks and 19 citation omitted). In such instances, “failing to train could be so patently obvious that [an 20 entity] could be liable under § 1983 without proof of a pre-existing pattern of violations.” 21 Connick, 563 U.S. at 63-64 . For example, in City of Canton, the Court hypothesized that 22 if a city knows that its police officers will be required to arrest fleeing felons, and the city 23 arms its officers with firearms to accomplish this task, “the need to train officers in the 24 constitutional limitations on the use of deadly force can be said to be ‘so obvious,’ that 25 failure to do so could properly be characterized as ‘deliberate indifference’ to constitutional 26 rights.” 489 U.S. at 390 n.10. 27 Plaintiff does not address whether this single incident was the “highly predictable 28 consequence of a failure to equip law enforcement officers with specific tools to handle 1 recurring situations.” Plaintiff does argue that it is “beyond question that a practice or 2 policy of refusing [to] comply with the ADA to include seeking out barriers and correcting 3 them, would result in a disabled detainee being denied an accessible shower and a 4 reasonable accommodation.” (Doc. 61 at 10.) The evidence, though, does not show a 5 complete refusal to comply with the ADA because the Jail did have two ADA-compliant 6 cells with accessible showers, an ADA-compliant shower in the intake/booking area that 7 Plaintiff used with the assistance of detention officers, and Jail employees did receive some 8 ADA training, just not to the extent Plaintiff believes was necessary. 9 The facts presented by Plaintiff do not show that constitutional violations were such 10 a predictable consequence that the failure to train employees was an obvious omission. See 11 Connick, 563 U.S. at 66-67 . Thus, in addition to the fact that Plaintiff has not shown that 12 he was subjected to a constitutional violation, his facts are insufficient to show that La Paz 13 County and Sheriff Risen were on notice that failure to train Jail staff regarding ADA issues 14 may lead to constitutional violations. 15 For the above reasons, Plaintiff’s Monell claim against Risen and La Paz County 16 fails, and the Court will grant summary judgment to Defendants as to Count Two. 17 C. Count Three: ADA 18 Plaintiff alleges in Count Three that Defendant La Paz County violated the ADA by 19 either excluding him from participation in or denying him the benefits of the Jail’s services, 20 programs, or activities because of his disability. (Doc. 1 at 10 ¶¶ 79-83.) 21 1. Legal Standard 22 Under Title II of the ADA, “no qualified individual with a disability shall, by reason 23 of such disability, be excluded from participation in or be denied the benefits of the 24 services, programs, or activities of a public entity, or be subjected to discrimination by any 25 such entity.” 42 U.S.C. § 12132 . A “public entity” is “any State or local government; [or] 26 (B) any department, agency, special purpose district, or other instrumentality of a State or 27 States or local government . . . .” 42 U.S.C. § 12131 . The phrase “services, programs, or [28] 1 activities” applies to the prison setting. See Penn. Dep’t of Corrs. v. Yeskey, 524 U.S. 206 , 2 210 (1998). 3 To prevail on a Title II ADA claim, a plaintiff must show that “(1) he is a ‘qualified 4 individual with a disability’; (2) he was either excluded from participation in or denied the 5 benefits of the public entity’s services, programs or activities, or was otherwise 6 discriminated against by the public entity; and (3) such exclusion, denial of benefits, or 7 discrimination was by reason of his disability.” Updike v. Multnomah Cnty., 870 F.3d 939 , 8 949 (9th Cir. 2017). The term “qualified individual with a disability” includes “an 9 individual with a disability who, with or without . . . the provision of auxiliary aids and 10 services, meets the essential eligibility requirements for the receipt of services or 11 participation in programs or activities provided by a public entity.” 42 U.S.C. § 12131 (2). 12 The plaintiff in a Title II case bears the initial burden “of producing evidence that a 13 reasonable accommodation was possible.” Vinson v. Thomas, 288 F.3d 1145, 1154 (9th 14 Cir. 2002). The burden then shifts to the public entity to show “that the requested 15 accommodation was not reasonable.” Id. 16 A plaintiff seeking monetary damages under the ADA “must prove intentional 17 discrimination on the part of the defendant.” Duvall v. Cnty. of Kitsap, 260 F.3d 1124 , 18 1138 (9th Cir. 2001). (citation omitted). The Ninth Circuit Court of Appeals applies a 19 deliberate indifference standard to determine whether a defendant intentionally 20 discriminated against a plaintiff. Id. Deliberate indifference “requires both knowledge that 21 a harm to a federally protected right is substantially likely, and a failure to act upon that [] 22 likelihood.” Id. (holding that the deliberate indifference “must be a result of conduct that 23 is more than negligent”) (citing City of Canton, 489 U.S. at 389, 395 ); see also T.B. ex rel. 24 Brenneise v. San Diego Unified Sch. Dist., 806 F.3d 451, 467 (9th Cir. 2015) (a plaintiff 25 seeking monetary damages under the ADA or the Rehabilitation Act “must show that the 26 defendant acted with intent to deny him the benefits of the public program or a reasonable 27 accommodation”). [28] 1 The first element of the deliberate indifference test is satisfied when a plaintiff “has 2 alerted the public entity to his need for accommodation” or where the need for 3 accommodation “is obvious[] or required by statute or regulation.” Duvall, 260 F.3d at 4 1139. The second element requires “an element of deliberateness” and “must be a result 5 of conduct that is more than negligent[.]” Id. (citations omitted) (noting that a public entity 6 receiving a request for accommodation has a duty to investigate the request and determine 7 “what constitutes a reasonable accommodation”). 8 2. Discussion 9 Defendants do not dispute that Plaintiff is a qualified individual with a disability. 10 Defendants argue that Plaintiff was only housed at the Jail for 26 hours, that during 11 that time he took a shower in the booking/intake area with reasonable accommodations, 12 and that there is no evidence that any individual denied Plaintiff any requests for 13 accommodation because he made no requests. (Doc. 56 at 20-21.) Defendants argue that 14 the Jail “was not required to make structural changes to the facility to make its programs 15 and services readily accessible to Plaintiff,” but was required only “to make reasonable 16 accommodations for Plaintiff, which it did.” (Id. at 22, citing Pierce v. Cnty. of Orange, [17] 526 F.3d 1190, 1219 (9th Cir. 2008).) Defendants further contend that Plaintiff knew that 18 a shower stool, rubber mats, and a walk-in shower were available, but decided not to ask 19 for any accommodations and took a shower “without even his non-slip shoes,” thereby 20 failing to give Jail staff an opportunity to reasonably accommodate his needs. (Id.) 21 Plaintiff responds that the shower in his cell was not ADA compliant and that 22 Defendants did not accommodate him “by taking even basic precautions such as: placing 23 a stool or chair in the shower, placing a non-slip mat outside of [the] shower, and/or 24 monitoring [Plaintiff] as he showered with staff [sic], providing [Plaintiff] with a cane or 25 walker and/or housing [Plaintiff] in a cell with an ADA-compliant shower.” (Doc. 61 at 26 11.) Plaintiff contends that when he told an officer over the intercom that he was going to 27 take a shower, “at that point staff could and should have been alerted to assist [Plaintiff].” 28 (Id.) In response to Defendants’ argument that Plaintiff did not request an accommodation, 1 Plaintiff argues that nothing in Title II “remotely suggests that covered entities have the 2 option of being passive in their approach to disabled individuals” and that Title II requires 3 entities to act affirmatively to evaluate their programs and services. (Id. at 12, citing Pierce 4 v. Dist. of Columbia, 128 F. Supp. 3d 250, 269 (D.D.C. 2015.) 5 The Supreme Court has found it “quite plausible that the alleged deliberate refusal 6 of prison officials to accommodate [the plaintiff’s] disability-related needs in such 7 fundamentals as mobility, hygiene, medical care, and virtually all other prison programs 8 constituted ‘exclu[sion] from participation in or . . . deni[al of] the benefits of’ the prison’s 9 “services, programs, or activities.” United States v. Georgia, 546 U.S. 151, 157 (2006), 10 (quoting 42 U.S.C. § 12132 and citing Yeskey, 524 U.S. at 210 ). 11 A reasonable jury would not conclude that by assisting Plaintiff in showering in an 12 ADA-compliant shower in the intake area, and then housing him in a cell for one night 13 without an accessible shower – when Plaintiff knew there was an accessible shower in the 14 intake area and was instructed to ask for assistance if he needed anything – the County 15 excluded Plaintiff from participation in or denied him the benefits of the Jail’s services, 16 program, or activities because of his disability. Moreover, there is no evidence that anyone 17 acted with deliberate indifference toward Plaintiff. To the contrary, Defendants provided 18 an accessible shower in the Jail, that Plaintiff used during his 26-hour stay. Accordingly, 19 the Court will grant summary judgment to La Paz County on Plaintiff’s Title II ADA claim 20 in Count Three. 21 D. Count Four: Negligence 22 Plaintiff alleges that Defendant La Paz County breached its non-delegable duty of 23 care to detainees to protect them from unreasonable risks of harm by failing to 24 appropriately house and monitor Plaintiff and by failing to take appropriate precautions so 25 that plaintiff could safely shower.3 (Doc. 1 at 11 ¶¶ 84-88.) [26] 27 3 In addition to addressing the negligence claim against La Paz County, Defendants argue that Plaintiff’s negligence claim against the individual officers fails. (Doc. 56 at 2328 26.) Plaintiff did not assert a negligence claim against the individual officers. (See Doc. 1 at 11.) 1 1. Legal Standard 2 To establish a claim for negligence under Arizona law, a plaintiff must prove: “(1) a 3 duty requiring the defendant to conform to a certain standard of care; (2) a breach by the 4 defendant of that standard; (3) a causal connection between the defendant’s breach and the 5 resulting injury; and (4) actual damages.” Gipson v. Kasey, 150 P.3d 228, 230 (Ariz. 2007) 6 (citation omitted). Whether a duty exists is a matter of law for the court to decide, and 7 “[t]he other elements, including breach and causation, are factual issues usually decided by 8 the jury.” Id. (internal citation omitted). 9 2. Discussion 10 Defendants argue that Plaintiff has not disclosed any witness or expert “who will 11 opine that Defendants had a duty to house Plaintiff in a cell other than the one he was 12 housed in.” (Doc. 56 at 24.) Defendant defines the duty too narrowly. 13 It is well established that a duty exists when “the relationship of the parties [is] such 14 that the defendant [is] under an obligation to use some care to avoid or prevent injury to 15 the plaintiff.” Quiroz v. ALCOA, Inc., 416 P.3d 824, 838 (Ariz. 2018) (citation omitted). 16 Arizona has recognized that a duty to protect exists in certain special relationships such as 17 guardian-ward and jailer-prisoner. See, e.g., Wertheim v. Pima Cnty., 122 P. 3d 1, 4 (Ariz. 18 Ct. App. 2005); Minneci v. Pollard, 565 U.S. 118, 128-29 (2012) (noting that California’s 19 tort law regarding a jailor’s duty of care to protect prisoners from harm “reflects general 20 principles of tort law present, as far as we can tell, in the law of every State”). Whether a 21 duty of care exists is not a factual matter; it is a legal determination made before specific 22 facts in a case are considered. Gipson, 150 P.3d at 232 . Here, the special relationship of 23 jailer-prisoner gave rise to a duty of care. 24 Defendants argue that the County took appropriate safety precautions so that 25 Plaintiff could safely shower, and that it was Plaintiff’s decision to shower without 26 requesting assistance or to use a shower that could accommodate his disability that caused 27 his injuries. (Doc. 56 at 25.) Plaintiff responds that the duty to house him appropriately 28 was breached when Conley disregarded Bissell’s housing directions, and when Plaintiff 1 told Officer Roberts he was going to shower and Roberts did not alert the floor officers or 2 take adequate safety precautions. (Doc. 61 at 15.) 3 Although the Court finds it to be a close question, and expects that reasonable jurors 4 may well agree with Defendants’ argument, whether the officers breached a duty to 5 Plaintiff and were the cause of his injuries are disputed issues of fact that must be decided 6 by a jury. Therefore, questions of fact preclude the Court from granting summary judgment 7 to La Paz County on Plaintiff’s negligence claim. 8 Defendants also argue that Plaintiff’s theory of liability against La Paz County is 9 premised on vicarious liability, and if the individual Defendants have no liability, then the 10 County is not liable. (Doc. 56 at 26.) Plaintiff does not dispute Defendants’ assertion that 11 his claim is premised on vicarious liability. Defendants cite several cases in support of 12 their proposition that Plaintiff cannot maintain a negligence claim based on vicarious 13 liability because the individual defendants have no liability. (Wiggs v. City of Phoenix, 10 14 P.3d 625 , 627 (Ariz. 2000), citing Torres v. Kennecott Copper Corp., 488 P.2d 477 (Ariz. 15 Ct. App. 1971), Law v. Verde Valley Med. Ctr., 170 P.3d 701 (Ariz. Ct. App. 2007), and 16 Mulhern v. City of Scottsdale, 799 P.2d 15 (Ariz. Ct. App. 1990)). 17 In Torres, the Arizona appellate court held that “where the master’s liability is based 18 solely on the negligent acts of his servant, a judgment in favor of the servant relieves the 19 master of any liability.” 488 P.2d 477, 479 (Ariz. Ct. App. 1971). Torres relied on a 1945 20 Arizona Supreme Court opinion, DeGraff v. Smith, that held that a dismissal with prejudice 21 of an individual defendant is a judgment on the merits that carries preclusive effect against 22 the agent’s principal. See 157 P.2d 342 (1945). 23 The second case cited by Defendants, Law v. Verde Valley Med. Ctr., addresses 24 Arizona’s Uniform Contribution Among Tortfeasors Act (UCATA), which abrogated joint 25 liability for most tortfeasors, and the appellate court held that UCATA did not change the 26 law regarding vicarious liability under DeGraff. 170 P.3d 701, 704 (Ariz. Ct. App. 2007). 27 The Arizona Supreme Court subsequently disavowed the holding in DeGraff and held that 28 “a stipulated dismissal with prejudice of an employer’s agent does not preclude a party 1 from asserting a claim against the agent’s principal for its own independent negligence,” 2 even when the independent negligence claim requires proof of the agent’s negligence. 3 Kopp v. Physician Group of Arizona, Inc., 421 P.3d 149, 150 (Ariz. 2018). Therefore, 4 Torres and Law do not support Defendants. 5 The last case cited by Defendants held that in order for an employer to be liable for 6 negligent hiring, retention or supervision, the employee must have committed a tort. 7 Mulhern v. City of Scottsdale, 799 P.2d 15, 18 (Ariz. Ct. App. 1990). Plaintiff’s negligence 8 claim in this case is not premised on a theory of negligent hiring, retention or supervision. 9 Therefore, Mulhern is inapposite. 10 Based on the above, Defendants have not met their burden of showing that 11 Plaintiff’s negligence claim in Count Four against La Paz County fails as a matter of law, 12 and the Court will deny the Motion for Summary Judgment as to this claim. 13 E. Punitive Damages 14 The only surviving claim in this action is Plaintiff’s state law negligence claim 15 against La Paz County in Count Four, and Arizona law provides that a public entity is not 16 liable for punitive damages. Ariz. Rev. Stat. § 12-820.04 . Therefore, Plaintiff’s request 17 for punitive damages fails. 18 IT IS ORDERED: 19 (1) The reference to the Magistrate Judge is withdrawn as to Defendants’ Motion 20 for Summary Judgment (Doc. 56). 21 (2) Defendants Fleming, Ruiz, Redman, Roberts and Jaramillo are dismissed 22 without prejudice from this action. 23 (3) Defendants’ Motion for Summary Judgment (Doc. 56) is granted in part 24 and denied in part as follows: 25 (a) The Motion is granted as to Plaintiff’s claim against Defendant 26 Conley in Count One, and Conley is dismissed with prejudice from this action. 27 (b) The Motion is granted as to Plaintiff’s claim against Defendants 28 Risen and La Paz County in Count Two and Risen is dismissed with prejudice. 1 (c) The Motion is granted as to Plaintiffs claim against Defendant La 2| Paz County in Count Three. 3 (d) |The Motion is denied as to Defendant La Paz County in Count Four. 4 (4) This action 1s referred to Magistrate Judge Michael T. Morrissey to conduct 5 | asettlement conference as to Plaintiff's negligence claim in Count Four against Defendant 6| La Paz County. 7 (5) | Counsel shall jointly call Magistrate Judge Morrissey’s chambers at 6028 | 322-7680 within 14 days to schedule a date for the settlement conference. 9 Dated this 29th day of April, 2020. 10 Le d peed 6, Cate phel 12 David G. Campbell 13 Senior United States District Judge