Bell v. Williams

— 1 — — 2 — — 3 — — 4 — 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA — 7 — 8 VINCENT KEITH BELL, Case No. 18-cv-01245-SI 9 Plaintiff, ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ 10 v. MOTION FOR SUMMARY JUDGMENT AND DENYING 11 SGT. YVETTE WILLIAMS, et al., PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT 12 Defendants. Re: Dkt. Nos. 108, 111 — 13 — — 14 — 15 On October 22, 2021, the Court held a hearing on plaintiff’s motion for partial summary 16 judgment and defendants’ motion for summary judgment. For the reasons set forth below, 17 defendants’ motion is GRANTED IN PART and DENIED IN PART, and plaintiff’s motion is 18 DENIED. — 19 — 20 BACKGROUND 21 Plaintiff Vincent Keith Bell is a longtime pretrial detainee at San Francisco County Jail. He 22 has been detained since 2012 when he was arrested for murder and other felonies. Bell’s right leg 23 is amputated above the knee, and he uses a wheelchair or a prosthetic device for mobility. At the 24 time of the events giving rise to this lawsuit, Bell was housed in administrative segregation in a 25 single occupancy cell, Isolation Cell #3 (“Iso. 3”), in San Francisco County Jail #2 (“CJ#2”), also 26 known as “C-Pod.” C-Pod houses inmates with medical or mental health needs. 27 Bell alleges that on the morning of January 14, 2018, he asked Deputy Leung for a razor to 1 referring to Bell’s penis. Bell told Leung he would file a grievance over the alleged sexual 2 harassment. Later that day, Deputy Leung issued a Request for Discipline (“RFD”) against Bell for 3 being disruptive and refusing a direct order. Kim Decl. Ex. G (Dkt. No. 121-9). The RFD states 4 that around 11:30 am on January 14, Leung heard Bell yelling and cheering loudly about a football 5 game. Leung asked Bell to lower his voice, and Bell refused to do so and said “Shut the fuck up. 6 I’m watching the game.” Id. Sergeant Williams reviewed Leung’s RFD. Her report states that 7 when she spoke to Bell about the RFD, he denied saying “Shut the fuck up,” that other people were 8 cheering but Leung singled him out, and that Bell asked Williams to “waive this RFD until you hear 9 my grievance.” Id. Bell claims that the grievance to which he referred was the grievance that he 10 later filed against Leung for sexual harassment. The record contains a grievance dated January 17, 11 2018, in which Bell claimed that Leung had sexually harassed him by asking to see his penis on 12 January 14. Wang Decl., Ex. U (Dkt. No. 111-23). 13 Sergeant Williams sustained the RFD and concluded that Bell had committed three 14 disciplinary violations (direct order, gestures/language, and general order) for which she imposed 15 the following discipline: restricted housing for 10 days, loss of commissary for 10 days, and loss of 16 visits for 10 days. Id. Bell asserts that according to the Inmate Code of Conduct, Kim Decl., Ex. U 17 (Dkt. No. 121-23), the three violations for which he was written up should have resulted in at most 18 2 days loss of commissary and 3-4 days of loss of visits, and that Williams aggravated the discipline. 19 At her deposition, Williams testified that she aggravated the discipline because Bell continued to show disrespect towards deputized staff. Kim Decl., Ex. B (Williams Depo. at 75-76, Dkt. No. 12120 4). Bell also asserts that because he was already in restricted housing (administrative segregation) — 21 — and confined to isolation for 24 hours a day except visits and court appointments, the punishment — 22 — of 10 days of restricted housing should not have added anything to what was already in place. — 23 — On the morning of January 18, 2018, Sergeant Williams was the Acting Watch Commander — 24 — of C-Pod. Kim Decl., Ex. I (Dkt. No. 121-11). According to Sergeant Williams’ Incident Report, — 25 — as she was conducting her morning rounds, she instructed Deputy Segundo to give Bell two large — 26 — plastic bags and instruct Bell to pack up his property in order to move next door to Isolation Cell #2 — 27 — 1 Sergeant Williams’ Incident Report states that after Bell was told he needed to move to Iso. 2, 2 Bell began yelling from his cell and asked why he was moving. I told Bell that he was given a direct order to pack his property and move. Bell began yelling from his 3 cell, “I’m not moving anywhere Sergeant Williams, you’re going to have to move me!” I again asked Bell to stop yelling from his cell and requested he roll up his 4 property. Bell yelled, “You’re going to have to come and get me. Go get your little team Sergeant Williams! I’m going to get my money’s worth!” Bell began moving 5 his hospital bed in a position in front of his cell door. Bell then placed his mattress upright against his cell door to impede anyone from entering his cell. Bell then 6 moved his property, which was about 2 large plastic bags of paper weighing approximately 30 lbs., against his cell door. Bell then placed a large plastic bag over 7 himself. Bell said he was preparing for pepper spray and taser. Bell continued to yell, “Come on! Come and get me!” I instructed Deputy Edwards #1355 to talk to 8 Bell in an attempt to have Bell comply and de-escalate the situation. Deputy Edwards talked to Bell for about 5 minutes. Bell told Edwards, “I’m not moving. I want 9 Leung to be the first to enter my cell!” Deputy Leung wrote the original RFD that was adjudicated which ended up Restricted Housing. — 10 — Kim Decl., Ex. I (Dkt. No. 121-11). At his deposition, Bell testified that although he initially did — 11 — not comply with Williams’ order, he told Sergeant Williams that he would comply and pack up his — 12 — belongings, but that he first wanted to speak to Lieutenant DeGuzman. Bell Depo. at 179 (Dkt. No. — 13 — 121-3). — 14 — Sergeant Williams then instructed nine deputies to meet her at a different location in the jail — 15 — to prepare a S.O.R.T. team to forcibly extract Bell from his cell. While the S.O.R.T. team was — 16 — preparing, Bell spoke to Lieutenant DeGuzman in his cell. Bell testified at his deposition that he — 17 — did not understand why he was being required to move to Iso. 2 since he was already in restricted — 18 — housing. Bell also testified that after DeGuzman told him that he would be able to move back to — 19 — Iso. 3 after 10 days, he packed up all of his belongings and sat in his wheelchair. — 20 — What happened next is captured on video taken by the S.O.R.T. team. The video starts at — 21 — approximately 9:56 a.m. on January 18. Sergeant Williams and the S.O.R.T. team are standing — 22 — outside the door to C-Pod, and Sergeant Williams states that the S.O.R.T. team is assembled to — 23 — perform a cell extraction of Bell because he has barricaded himself with a medical bag and mattress — 24 — in his cell, that Bell has placed a plastic bag over himself to “thwart the use of pepper spray and the — 25 — taser,” and that Bell is refusing to rehouse. Sergeant Williams also stated that Bell is “wheelchair — 26 — bound but very capable of fighting deputized staff,” and that Bell will be going to a safety cell “for — 27 — danger to others, which he has clearly stated he will not be moving, refuses to comply.” The 1 S.O.R.T. team was outfitted in full protective gear, including helmets, face shields, chest plates, and 2 arm and leg coverings. Deputy Bryan was equipped with an Arwen, an anti-riot weapon, and Deputy 3 Yeung had a taser. 4 The S.O.R.T. team then entered C-Pod. When the team arrived at Bell’s cell, Bell was sitting 5 in his wheelchair and he was not wearing a plastic bag. Bell’s belongings were not barricading the 6 door, and instead were on top of his bed. As soon as Bell saw the deputies, he put his hands over 7 his head. After the S.O.R.T. team entered Bell’s cell, Sergeant Williams ordered Bell to get on the 8 ground, face-down. Bell did so. Sergeant Williams yelled, “Bell do not resist,” and Bell replied, “I 9 am not resisting.” As Bell lay on the ground, deputies handcuffed his hands behind his back. The 10 deputies stood Bell up, and Bell was forced to hop on one leg from Iso. 3 to a safety cell 11 approximately 64 feet away with deputies on either side of him holding onto his arms. During the 12 transport, Bell complained that his leg was tired and that he was in pain, and at one point he fell to 13 the ground and said he could not hop anymore. Deputies then carried him, face-down, by his 14 handcuffed arms and one leg into the safety cell, where he was stripped naked. Bell claims that he 15 suffered physical pain as a result of the extraction, including pain in his wrists, shoulders, back, 16 ankle and knee. 17 Sergeant Williams testified at her deposition that at some point she made the decision to 18 transport Bell to the safety cell without the use of a wheelchair, gurney or prosthetic device. 19 Williams testified that she was not sure exactly when she made that decision, and that she made that 20 decision because Bell had a history of hiding contraband in his wheelchair and because he had 21 barricaded himself in his cell and she didn’t want to take a chance that he had hidden something in 22 his wheelchair. Kim Decl. Ex. B (Williams Depo. at 184, Dkt. No. 121-4). Williams also testified, 23 “I also have seen him fully capable on his one leg and he is extremely strong, so I didn’t see the 24 reason – he had – he was sitting there calmly, and I thought he can walk on his one leg. He is very 25 capable.” Id. Bell states in his declaration that because C-Pod is a medical unit, “[t]here are 26 wheelchairs, gurneys, restraint chairs, crutches, canes, and walkers in C-Pod.” Bell Decl. ¶ 3 (Dkt. 27 No. 121-27). Bell states that these devices are stored in C-Pod, “and in fact right outside of Isolation 1 that on January 18, there were at least three wheelchairs available, two outside of his cell and one 2 inside the cell. Id. ¶ 5. 3 Bell stayed in the safety cell for 20 hours. The safety cell is a padded cell that does not 4 contain a bed or a toilet; there is a grate on the ground that inmates use for urination and defecation. 5 While in the safety cell, Bell requested the use of his prosthetic when he had to use the bathroom, 6 but that request was denied. Bell testified that he had to “hold it” instead of defecating because 7 otherwise he would have been required to sit on a grate in the floor that was covered with urine and 8 feces. Bell Depo. at 169-170 (Dkt. No. 121-3). 9 On January 20, 2018, Bell filed a grievance about the use of the S.O.R.T. team and placement 10 in the safety cell. Bell stated that he was complying with the order to move to a different cell and 11 that the use of the S.O.R.T. team to forcibly extract him from his cell was done in retaliation for his 12 January 17 grievance against Leung for sexual harassment. Kim Decl., Ex. V (Dkt. No. 111-24). 13 Bell also complained that he was forced to hop on one leg until his leg gave out and that deputies 14 carried him by his three limbs. Id. The January 20 grievance also complained that Leung’s RFD 15 that resulted in discipline did not list safety cell placement, and that the safety cell placement was 16 “fraudulent.” Id. 17 The fifth amended complaint asserts the following causes of action: (1) 42 U.S.C. § 1983 , 18 Fourteenth Amendment Excessive Force challenging the S.O.R.T. team’s forcible extraction of Bell 19 from his cell, against defendants Sergeant Williams, Bryant, Bui, Daly, DeJesus, Leung, Walsh, and 20 Yeung (the S.O.R.T. team); (2) 42 U.S.C. § 1983 , Fourteenth Amendment Violation of Due Process 21 challenging the placement in the safety cell as punishment, against defendants Captain Fisher, 22 Sergeant Williams, and the S.O.R.T. team members; (3) 42 U.S.C. § 1983 , Monell liability and 23 supervisory liability against defendants City and County of San Francisco, Captain Fisher and 24 Sergeant Williams; (4) Violation of Title II of the Americans with Disabilities Act (“ADA”), 42 25 U.S.C. § 12131 , against the City and County of San Francisco for disability discrimination; (5) 26 Violation of Section 504 of the Rehabilitation Act of 1973 (“Rehabilitation Act”), 29 U.S.C. § 701 , 27 against the City and County of San Francisco for disability discrimination; and (6) 42 U.S.C. § 1983 , 1 Leung. 2 Now before the Court are the parties’ cross-motions for summary judgment. Plaintiff moves 3 for summary judgment on the fourth and fifth causes of action under the ADA and the Rehabilitation 4 Act, and defendants move for summary judgment on all causes of action. — 5 — 6 LEGAL STANDARD 7 Summary judgment is proper if “the movant shows that there is no genuine dispute as to any 8 material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The 9 moving party bears the initial burden of demonstrating the absence of a genuine issue of material 10 fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party, however, has no burden 11 to disprove matters on which the non-moving party will have the burden of proof at trial. The 12 moving party need only demonstrate to the Court that there is an absence of evidence to support the 13 non-moving party’s case. Id. at 325 . 14 Once the moving party has met its burden, the burden shifts to the non-moving party to “set 15 out ‘specific facts showing a genuine issue for trial.’” Id. at 324 (quoting then-Fed. R. Civ. P. 56(e)). 16 To carry this burden, the non-moving party must “do more than simply show that there is some 17 metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio 18 Corp., 475 U.S. 574, 586 (1986). “The mere existence of a scintilla of evidence . . . will be 19 insufficient; there must be evidence on which the jury could reasonably find for the [non-moving 20 party].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). 21 In deciding a summary judgment motion, the court must view the evidence in the light most 22 favorable to the non-moving party and draw all justifiable inferences in its favor. Id. at 255 . 23 “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences 24 from the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment.” — 25 — Id. However, conclusory, speculative testimony in affidavits and moving papers is insufficient to 26 raise genuine issues of fact and defeat summary judgment. Thornhill Publ’g Co., Inc. v. GTE Corp., — 27 — 594 F.2d 730, 738 (9th Cir. 1979). The evidence the parties present must be admissible. Fed. R. — 1 — 2 DISCUSSION 3 I. Fourteenth Amendment Excessive Force Claim Against Sergeant Williams and the S.O.R.T. Team (First Cause of Action) — 4 — Plaintiff frames this claim as “the use of the SORT to extract Bell from his cell amounted to — 5 — unjustified punishment unrelated to legitimate penological goals.” Plaintiff argues that it was — 6 — excessive to use the S.O.R.T. team to forcibly extract him from his cell when he was compliant and — 7 — was not a danger to himself or others, and that the manner in which he was extracted – without the — 8 — use of a wheelchair or other assistive device, resulting in officers carrying him by his limbs with his — 9 — arms handcuffed behind his back – was excessive. — 10 — The Due Process Clause of the Fourteenth Amendment protects a post-arraignment pretrial — 11 — detainee from the use of excessive force that amounts to punishment. Graham v. Connor, 490 U.S. 12 386, 395 n.10 (1989) (citing Bell v. Wolfish, 441 U.S. 520, 535-39 (1979)). To prove an excessive — 13 — force claim under § 1983, a pretrial detainee must show that the “force purposely or knowingly used — 14 — against him was objectively unreasonable.” Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015). — 15 — “A court must make this determination from the perspective of a reasonable officer on the scene, — 16 — including what the officer knew at the time, not with the 20/20 vision of hindsight.” Id. “A court — 17 — (judge or jury) cannot apply this standard mechanically.” Id. “[O]bjective reasonableness turns on — 18 — the ‘facts and circumstances of each particular case.’” Id. (quoting Graham, 490 U.S. at 396); — 19 — accord Lombardo v. City of St. Louis, 141 S. Ct. 2239, 2241-42 (2021) (per se rule that use of prone — 20 — restraint is constitutional so long as individual appears to resist officers’ efforts to subdue him would — 21 — be improper because it would “contravene the careful, context-specific analysis required” in — 22 — excessive force cases). — 23 — A non-exhaustive list of considerations that may bear on the reasonableness of the force used — 24 — include “the relationship between the need for the use of force and the amount of force used; the — 25 — extent of the plaintiff’s injury; any effort made by the officer to temper or to limit the amount of — 26 — force; the severity of the security problem at issue; the threat reasonably perceived by the officer; — 27 — and whether the plaintiff was actively resisting.” Kingsley, 576 U.S. at 397 . Because the Kingsley 1 standard applicable to excessive force claims by pretrial detainees is purely objective, a plaintiff 2 need not prove whether the defendant understood that the force used was excessive or intended it to 3 be excessive. Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1069 (9th Cir. 2016) (en banc). A 4 pretrial detainee can prevail by providing “‘objective evidence that the challenged governmental 5 action is not rationally related to a legitimate governmental objective or that it is excessive in relation 6 to that purpose.’” Id. (quoting Kingsley, 576 U.S. at 397-98 )) (emphasis in original). 7 The Court concludes that there are questions of fact as to whether the use of the S.O.R.T. 8 team under these circumstances was excessive. Bell claims that he was not a danger to himself or 9 others. Critically, it is disputed whether Bell told Sergeant Williams that he would comply and 10 move cells prior to the cell extraction. The beginning of the cell extraction video shows Bell sitting 11 in his wheelchair, not wearing any plastic, compliant and with his hands raised, and with his 12 belongings on the bed. Nothing is barricading the door. It is undisputed that Sergeant Williams 13 made the decision that Bell would be forcibly extracted from his cell without the use of a wheelchair 14 or other assistive device, and there are disputes about whether a wheelchair or other device could 15 have been provided. Reasonable minds can differ about whether, under those circumstances, it was 16 excessive to use a nine-member S.O.R.T. team, outfitted with an Arwen and a taser, to forcibly 17 extract Bell from his cell without the use of a wheelchair or assistive device, and requiring him to 18 hop on one leg and then be carried by his limbs while handcuffed behind his back. Thus, the Court 19 concludes that there are questions of fact regarding Sergeant Williams’ decision to use the S.O.R.T. 20 team and that level of force to extract Bell from his cell, and DENIES summary judgment as to 21 Sergeant Williams. 22 The Court also concludes that the resolution of whether Sergeant Williams is entitled to 23 qualified immunity requires determination of factual disputes, including whether Bell told Williams 24 he would comply, whether Bell was danger to others, and whether Bell could have been transported 25 in a wheelchair. See Saucier v. Katz, 533 U.S. 194 , 201 (2001) (“A court required to rule upon the 26 qualified immunity issue must consider . . . this threshold question: Taken in the light most favorable 27 to the party asserting the injury, do the facts alleged show the officer’s conduct violated a 1 allegations relating to plaintiff’s claims. See Ruiz v. Sawaya, No. 11-CV-03126-JST (PR), 2013 2 WL 5665404 , at *4 (N.D. Cal. Oct. 15, 2013) (“[E]valuation of plaintiff’s excessive force claim 3 depends principally on credibility determinations and the drawing of factual inferences from 4 circumstantial evidence, both of which are the traditional functions of the jury”.). Accordingly, 5 factual disputes preclude a finding of qualified immunity. See Wilkins v. City of Oakland, 350 F.3d 6 949, 951 (9th Cir. 2003) (“appellate review is generally limited to issues of law . . . and ‘does not 7 extend to claims in which the determination of qualified immunity depends on disputed issues of 8 material fact.’”) (internal citation omitted); Loyce Amos Moore & Cleo Davis Moore v. City and 9 County of San Francisco, 9th Cir. Case No. 20-17494, D.C. No. 3:18-cv-634-SI (9th Cir. Mar. 11, 10 2021) (denying motion to stay district court proceedings pending appeal where district court denied 11 summary judgment and qualified immunity based on issues of fact). 12 However, the Court concludes that the other members of the S.O.R.T. are entitled to 13 qualified immunity. “Qualified immunity attaches when an official’s conduct does not violate 14 clearly established statutory or constitutional rights of which a reasonable person would have 15 known.” White v. Pauly, 137 S. Ct. 548, 551 (2017) (per curiam) (internal quotation marks omitted). 16 A right is clearly established when it is “sufficiently clear that every reasonable official would have 17 understood that what he is doing violates that right.” Mullenix v. Luna, 577 U.S. 7, 11 (2015) (per 18 curiam) (internal quotation marks omitted). 19 Here, the S.O.R.T. team members were acting under Sergeant Williams’ direction. The cell 20 extraction video shows Sergeant Williams stating – to the camera and the S.O.R.T. team members 21 – that Bell was a danger to others and refusing to comply. Sergeant Williams made the decision to 22 transport Bell without the use of a wheelchair and thus the S.O.R.T. team members were carrying 23 out her instructions regarding the manner of the cell extraction. Under these circumstances, a 24 reasonable officer would not have understood that in carrying out the S.O.R.T. extraction he or she 25 was potentially violating Bell’s rights to be free of excessive force. — 26 — — 27 — II. Fourteenth Amendment Due Process Claim Against Individual Defendants re: Safety 1 Cell Placement as Punishment (Second Cause of Action) 2 Plaintiff alleges that he was placed in the safety cell as punishment in violation of his Due 3 Process rights. “[T]he placement of pretrial detainees in safety cells is ‘punishment’ in violation of 4 the Fourteenth Amendment only if prison officials act with deliberate indifference to the inmates’ 5 needs.” Anderson v. Cty. of Kern, 45 F.3d 1310, 1313 (9th Cir.), opinion amended on denial of 6 reh’g, 75 F.3d 448 (9th Cir. 1995). “The test for whether a prison official acts with deliberate 7 indifference is a subjective one: the official must ‘know[ ] of and disregard[ ] an excessive risk to 8 inmate health and safety; the official must both be aware of the facts from which the inference could 9 be drawn that a substantial risk of serious harm exists, and he must also draw the inference.’” Id. 10 (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). 11 For reasons similar to those discussed above with regard to the excessive force claim, the 12 Court DENIES summary judgment on Bell’s claim against Sergeant Williams and GRANTS 13 summary judgment in favor of the other defendants. Bell has raised questions of material fact as to 14 whether Sergeant Williams’ decision to place Bell in the safety cell was based on legitimate 15 penological reasons or whether it was punitive. Sergeant Williams determined that Mr. Bell was a 16 “danger to others” after he allegedly refused to comply with her order to move cells. However, Bell 17 claims that he told Sergeant Williams he would move cells, and the video shows that Bell was 18 compliant and not physically combative. 19 However, it is undisputed that it was Sergeant Williams who made the decision to place Bell 20 in the safety cell, and that the S.O.R.T. team members were only carrying out that decision. As to 21 Captain Fisher, Bell has not raised a triable issue of fact as to whether Fisher had any reason to 22 believe that Bell was not a danger to others – as Williams stated he was – and thus Fisher is entitled 23 to summary judgment. — 24 — 25 III. First Amendment Retaliation Against Deputy Leung, Sergeant Williams and Captain Fisher (Sixth Cause of Action) — 26 — Within the prison context, a viable claim of First Amendment retaliation contains five — 27 — elements: “(1) An assertion that a state actor took some adverse action against an inmate (2) because 1 of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his 2 First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional 3 goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted). — 4 — 5 A. Deputy Leung 6 Plaintiff alleges that when Deputy Leung sexually harassed him on the morning of January 7 14, 2018, he told Leung that he would be filing a grievance, and that Leung then retaliated against 8 him by issuing the January 14, 2018 RFD. Defendants contend that plaintiff never filed a grievance 9 alleging Deputy Leung’s RFD was retaliation for complaining about sexual harassment, and 10 therefore that plaintiff did not exhaust his administrative remedies as required by the Prison 11 Litigation Reform Act. 12 The Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, 110 Stat. 1321 (1996) 13 (“PLRA”), amended 42 U.S.C. § 1997e to provide that “[n]o action shall be brought with respect to 14 prison conditions under [ 42 U.S.C. § 1983 ], or any other Federal law, by a prisoner confined in any 15 jail, prison, or other correctional facility until such administrative remedies as are available are 16 exhausted.” 42 U.S.C. § 1997e(a). Exhaustion is mandatory and no longer left to the discretion of 17 the district court. Woodford v. Ngo, 548 U.S. 81, 84 (2006) (citing Booth v. Churner, 532 U.S. 731 , 18 739 (2001)). 19 Bell contends that he exhausted his retaliation claim against Deputy Leung, citing a January 20 20, 2018 grievance. See Pl’s Opp’n at 18, citing Kim Decl. Ex. F (grievance Bates-stamped CCSF21 VBELL_000077) (Dkt. No. 121-8). In that grievance, Bell complained about the January 18 cell 22 extraction and being forced to hop on one leg and being carried by deputies to the safety cell. Bell 23 also complained that the extraction and placement in the safety cell “torture and torment was to 24 intimidate and threaten Bell to not get a response or push his grievance on Deputy Leung for sexual 25 harassment on 1-17-18.”1 Id. Plaintiff also complained that Deputy Leung’s January 14, 2018 RFD — 26 — 1 In the January 17, 2018 grievance, plaintiff complained that Deputy Leung sexually — 27 — harassed him on January 14, 2018 by asking to see his penis. Wang Decl., Ex. U (Dkt. No. 1111 “does not have safety cell placement on it!” Id. 2 The Court concludes that Bell did not exhaust his retaliation claim because the January 20, 3 2018 grievance did not allege that Deputy Leung’s January 14, 2018 RFD was retaliation for 4 complaining about Leung’s alleged sexual harassment. The January 20 grievance only mentions 5 Leung’s January 14 RFD in the context of complaining that the safety cell placement was not 6 warranted by the RFD. In addition, although the January 20 grievance refers to the January 17 7 grievance, that reference does not encompass the retaliation claim because the January 17 grievance 8 only addressed Leung’s alleged sexual harassment and not the January 14 RFD. Accordingly, the 9 Court GRANTS defendants’ motion for summary judgment on Bell’s retaliation claim against 10 Deputy Leung. — 11 — 12 B. Sergeant Williams 13 Plaintiff alleges that Sergeant Williams retaliated against him for filing the sexual 14 harassment grievance against Leung when she imposed and carried out the discipline against Bell. 15 The Court DENIES defendants’ motion for summary judgment on this claim, as there are questions 16 of fact about whether Sergeant Williams knew about Bell’s grievance when she made the allegedly 17 retaliatory decisions, as well as questions of fact about Sergeant Williams’ motivations and whether 18 her decisions were justified by Bell’s actions and/or in compliance with the S.O.R.T. and safety cell 19 policies. — 20 — 21 C. Captain Fisher 22 Plaintiff alleges that Captain Fisher retaliated against him for filing the sexual harassment 23 grievance against Leung by approving the disciplinary action against Bell and failing to 24 meaningfully investigate the grievance against Leung. The Court GRANTS defendants’ motion for 25 summary judgment on plaintiff’s retaliation claim against Fisher. Here, the evidence shows that 26 Sergeant Williams made the decisions about what discipline to impose (including aggravating the 27 discipline), as well as the decisions about using the S.O.R.T. team and the safety cell placement. 1 team and the safety cell placement. However, plaintiff has not cited to any evidence suggesting a 2 retaliatory motive on Fisher’s part. As such, plaintiff has not raised a triable issue of fact as to 3 whether Fisher took any actions “because of” Bell’s grievance. See Manzanillo v. Moulton, No. 134 CV-02174-JST (PR), 2014 WL 4793780 , at *10 (N.D. Cal. Sept. 25, 2014) (granting summary 5 judgment on retaliation claim because no evidence of retaliatory animus where “[t]he undisputed 6 evidence shows that the decision to move plaintiff to the PSU was not made by Moulton at all, but 7 rather by [other individuals].”) — 8 — 9 IV. Monell Liability (Third Cause of Action) 10 The third cause of action alleges that the County is liable under Monell v. Department of 11 Social Services, 436 U.S. 658 (1978), because (1) there is a pattern and practice of misusing the 12 safety cell for punishment and retaliatory reasons rather than their intended use; (2) the County has 13 failed to train its deputized staff on the proper use of the S.O.R.T. and the safety cell; and (3) 14 defendants Williams and Fisher are final policymakers who violated plaintiff’s rights.2 — 15 — 16 A. Pattern and Practice 17 Plaintiff has submitted evidence in support of a pattern and practice of misusing the safety 18 cell for punishment and retaliatory reasons through his own testimony regarding prior allegedly 19 improper placements in the safety cell, the declarations of four other pretrial detainees3 who claim 20 that they were placed in the safety cell for punishment or for retaliatory reasons, and newspaper 21 articles. — 22 — 2 The third cause of action also alleges claims for supervisory liability against Captain Fisher — 23 — and Sergeant Williams. See, e.g., Starr v. Baca, 652 F.3d 1202, 1206-07 (9th Cir. 2011) (discussing supervisory liability under § 1983). Defendants did not move for summary judgment on those — 24 — claims. — 25 — 3 Defendants object that plaintiff did not disclose the facts set forth in the inmates’ declarations. However, the interrogatory responses filed by defendants show that plaintiff disclosed — 26 — these individuals in response to Interrogatory Number 14, which asked for “ALL evidence, including ALL DOCUMENTS AND PERSONS, that support YOUR contention that the CITY has — 27 — a pattern and practice of misusing and authorizing the misuses of safety cells for disciplinary and 1 “A section 1983 plaintiff may attempt to prove the existence of a custom or informal policy 2 with evidence of repeated constitutional violations for which the errant municipal officials were not 3 discharged or reprimanded.” Gillette v. Delmore, 979 F.2d 1342, 1349 (9th Cir. 1992). “The custom 4 must be so ‘persistent and widespread’ that it constitutes a ‘permanent and well settled city policy.’” 5 Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996) (quoting Monell, 436 U.S. at 691 ). “Liability for 6 improper custom may not be predicated on isolated or sporadic incidents; it must be founded upon 7 practices of sufficient duration, frequency and consistency that the conduct has become a traditional 8 method of carrying out policy.” Trevino, 99 F.3d at 918 ; see also Nadell v. Las Vegas Metropolitan 9 Police Dep’t, 268 F.3d 924 , 930 (9th Cir. 2001) (reversing jury verdict on Monell claim where 10 “[t]here was no evidence introduced at trial to establish that the use of excessive force was a formal 11 policy or widespread practice of the LVMPD or that previous constitutional violations had occurred 12 for which the offending officers were not discharged or reprimanded.”); compare Nehad v. Browder, — 13 — 929 F.3d 1125, 1141-42 (9th Cir. 2019) (reversing summary judgment and finding triable issues of 14 fact on Monell claim where plaintiff had submitted evidence that 75% of police department 15 shootings were avoidable; the shooting at issue was approved by the department; and the department 16 looked the other way when lethal force was used). 17 The Court concludes that plaintiff has failed to raise a triable issue of fact as to a pattern and 18 practice of using safety cells for disciplinary and/or retaliatory reasons. As an initial matter, the 19 Court agrees with defendants that the newspaper articles are hearsay. See AFMS LLC v. United 20 Parcel Serv. Co., 105 F. Supp. 3d 1061, 1070 (C.D. Cal. 2015) (“It is axiomatic to state that 21 newspaper articles are by their very nature hearsay evidence and are thus inadmissible if offered to 22 prove the truth of the matter asserted[.]”). 23 Second, plaintiff has provided scant information about his prior six experiences of being 24 placed in the safety cell. Plaintiff’s declaration does not address these incidents, and at his 25 deposition he testified that he had been placed in the safety cell “never for the correct reasons.” Bell 26 Depo. at 208-09 (Dkt. No. 121-3). Bell also testified that he had seen numerous other detainees be 27 placed in the safety cell for improper reasons; however, that testimony is conclusory and not 1 Third, the declarations do not establish the existence of a custom or informal policy of 2 improperly using the safety cell for disciplinary or retaliatory reasons. The four declarations 3 submitted by plaintiff describe very different factual scenarios from this case and from each other. 4 For example, Mr. Barrow states that he was placed in a safety cell in May 2017 after a fight broke 5 out between three inmates when he was in the “12-man tank.” Barrow Decl. ¶ 2 (Dkt. No. 121-28). 6 He states that he was not involved in the fight but that he was placed in the safety cell “for being a 7 danger to others,” and he concludes that he was placed in the safety cell “for punishment.” Id. ¶¶ 3, 8 5, 8. Mr. Evans states that he was placed in the safety cell in December 2020 as retaliation for 9 talking to a sergeant about his phone privileges and that a deputy falsely claimed that he was suicidal. 10 Evans Decl. ¶¶ 4-6 (Dkt. No. 121-31). Mr. Evans states that he was improperly placed in a safety 11 cell in April 2021 after he was cleaning his cell with a rag and the rag got caught in the sprinkler, 12 and that he was later told by a psych nurse that he was placed in the safe cell because he was a 13 danger to himself. Id. ¶ 9; see also DeCuir Decl. (Dkt. No. 121-30) (stating she was placed in the 14 safety cell in September 2018 after she was told she was getting a new cellmate and joked that she 15 “would rather be in the safety cell than housed with the new cell mate”); Brewster Decl. (Dkt. No. 16 121-29) (describing two safety cell placements, one after he complained of not being able to breathe 17 and one allegedly in retaliation for filing a grievance). Further, plaintiff has not submitted any 18 evidence showing that any of the declarants’ safety cell placements have been admitted or 19 determined to be improper.4 Under these circumstances, the declarations are insufficient to raise a 20 triable issue of fact on the existence of a custom or policy. See Manzo v. Cty. of Santa Clara, No. 21 17-CV-01099-BLF, 2020 WL 6940935 , at *15 (N.D. Cal. Nov. 25, 2020) (granting summary 22 judgment on Monell claim where plaintiff’s evidence of custom consisted of other claims of — 23 — — 24 — 4 Defendants have submitted a request for judicial notice of a lawsuit filed by Mr. Barrows; that lawsuit does not allege that his placement in a safety cell violated his constitutional rights. Dkt. — 25 — No. 125-1. Defendants have also submitted a request for judicial notice of a lawsuit filed by Mr. Brewster. Dkt. No. 125-2. That lawsuit alleges that a safety cell placement was retaliatory and for — 26 — disciplinary reasons. Defendants note that in Mr. Brewster’s case, Judge Gilliam notified that parties that he intended to grant the defendants’ motion for summary judgment “in substantial part.” See — 27 — Case No. 20-cv-03254-HSG, Dkt. No. 98. As of November 19, a written order had not yet been 1 excessive conduct, none of which resulted in a finding or admission of fault); Alegrett v. City and 2 County of San Francisco, No. 12-CV-05538-MEJ, 2014 WL 1911405 , at *6 & n.5 (N.D. Cal. May 3 13, 2014) (granting summary judgment on Monell claim and finding, inter alia, that plaintiff’s 4 evidence of “four factually dissimilar civil rights actions” filed by plaintiff’s counsel over a three 5 year period, none of which resulted in a finding of liability, was insufficient to raise a triable issue 6 of fact as to the existence of a custom). 7 Accordingly, the Court GRANTS summary judgment in favor of defendants on Bell’s 8 pattern and practice theory of Monell liability. — 9 — 10 B. Failure to Train 11 Bell alleges that CCSF failed to train its deputized staff on the proper use of the S.O.R.T. 12 and the safety cell. Defendants contend that they are entitled to summary judgment because they 13 have submitted evidence showing that the deputies and Sergeant Williams received training on 14 S.O.R.T. cell extractions and safety cell use during their “CORE” training, and that Sergeant 15 Williams received additional training on S.O.R.T. and the safety cell when she became a supervisor. 16 See Dkt. Nos. 111-12. 17 Plaintiff’s opposition argues that the training is deficient because CCSF does not retrain 18 deputies after their initial training (and notes that Sergeant Williams was last trained in 2006), nor 19 does CCSF provide any training regarding the S.O.R.T. cell extraction or safety cell placement of 20 prisoners with disabilities. See, e.g., Malabed Depo. at 62. Plaintiff also notes that neither the 21 S.O.R.T. nor safety cell policies specifically address inmates with disabilities. Plaintiff argues that 22 CCSF has had actual and constructive notice that the ADA applies to all law enforcement facilities 23 and that deputized staff must comply with it. See, e.g., Kim Decl. Ex. D (State of California 24 Commission on Peace Officer Standards and Training Learning Domain 37 People with Disabilities 25 Basic Course Workbook Series, stating inter alia that ADA applies to local detention facilities and 26 agencies must provide accommodations and transport disabled individuals who require special 27 equipment) (Dkt. No. 108-6). Finally, Bell asserts that the deputies and Sergeant Williams violated 1 violations, and that those violations were the result of CCSF’s failure to train. 2 “A municipality’s failure to train an employee who has caused a constitutional violation can 3 be the basis for § 1983 liability where the failure to train amounts to deliberate indifference to the 4 rights of persons with whom the employee comes into contact.” Long v. Cty. of Los Angeles, 442 5 F.3d 1178, 1186 (9th Cir. 2006). “A ‘pattern of similar constitutional violations by untrained 6 employees is ordinarily necessary to demonstrate deliberate indifference for purposes of failure to 7 train,’ though there exists a ‘narrow range of circumstances [in which] a pattern of similar violations 8 might not be necessary to show deliberate indifference.’” Flores v. Cty. of Los Angeles, 758 F.3d 9 1154, 1159 (9th Cir. 2014) (quoting Connick v. Thompson, 563 U.S. 51, 62 (2011) (internal citations 10 and quotation marks omitted)). However, “[a] plaintiff also might succeed in proving a failure-to11 train claim without showing a pattern of constitutional violations where a violation of federal rights 12 may be a highly predictable consequence of a failure to equip law enforcement officers with specific 13 tools to handle recurring situations.’” Long, 442 F.3d at 1186 (quoting Board of Cty. Comm’rs v. 14 Brown, 520 U.S. 397, 409 (1997)). 15 The Court concludes that CCSF has not met its burden to show that it is entitled to summary 16 judgment on plaintiff’s failure to train theory. Bell has raised triable issues of fact as to whether the 17 failure to train deputized staff about S.O.R.T. cell extraction and safety cell placement of inmates 18 with disabilities resulted in constitutional violations. Bell has also demonstrated questions of fact 19 about whether his cell extraction and safety cell placement complied with the policies, raising 20 questions about the adequacy of the training provided. Accordingly, the Court DENIES defendants’ 21 motion for summary judgment on this claim. — 22 — 23 C. Act by Final Policymaker/Ratification 24 Plaintiff may establish municipal liability by showing that “on a given occasion the conduct 25 was the result of ‘a deliberate choice . . . made from among various alternatives by the official or 26 officials responsible for establishing final policy with respect to the subject matter in question.’” 27 Fuller v. City of Oakland, 47 F.3d 1522, 1534 (9th Cir. 1995), as amended (Apr. 24, 1995) (quoting 1 an isolated constitutional violation if the final policymaker ‘ratified’ a subordinate’s actions.” 2 Christie v. Iopa, 176 F.3d 1231, 1238 (9th Cir. 1999) (citing City of St. Louis v. Praprotnik, 485 3 U.S. 112, 127 (1988)). 4 Plaintiff contends that Sergeant Williams had final policymaking authority from CCSF 5 regarding the use of the S.O.R.T. Plaintiff cites the S.O.R.T. policy, which authorizes a scene 6 commander to assemble, plan and execute a S.O.R.T. cell extraction, and plaintiff has submitted 7 evidence showing that on January 18, 2018, Sergeant Williams was the scene commander. Plaintiff 8 contends that Captain Fisher is a final policymaker because the S.O.R.T. policy provides that the 9 facility commander approve S.O.R.T. decisions, and Fisher was the facility commander who 10 approved Sergeant Williams’ decision.5 11 Defendants argue that plaintiff’s claim fails because Sergeant Williams and Captain Fisher 12 are not final policymakers. Defendants note that the S.O.R.T. policy was approved by a Chief 13 Deputy, see Wang Decl., Ex. H (Dkt. No. 11-10), and they argue that under Pembauer, the facts that 14 Sergeant Williams had discretion to order a S.O.R.T. and that Captain Fisher had discretion to 15 approve a S.O.R.T. decision does not mean that they are final policymakers for purposes of 16 municipal liability. 17 The Court agrees with defendants. “Municipal liability attaches only where the 18 decisionmaker possesses final authority to establish municipal policy with respect to the action 19 ordered. The fact that a particular official—even a policymaking official—has discretion in the 20 exercise of particular functions does not, without more, give rise to municipal liability based on an 21 exercise of that discretion.” Pembaur, 475 U.S. at 481-82 ; see also id. at 483 n.12 (“[I]f county 22 employment policy was set by the Board of County Commissioners, only that body’s decisions 23 would provide a basis for liability. This would be true even if the Board left the Sheriff discretion 24 to hire and fire employees and the Sheriff exercised that discretion in an unconstitutional manner; 25 the decision to act unlawfully would not be a decision of the Board.”). Here, Bell has shown that — 26 — — 27 — 5 The Court notes that plaintiff does not assert that either Williams or Fisher had been 1 Williams and Fisher had discretion to order and approve the usage of a S.O.R.T. team, but Bell has 2 not shown that either defendant had final policymaking authority with regard to the S.O.R.T. policy. 3 Accordingly, the Court GRANTS summary judgment in favor of defendants on this theory 4 of Monell liability. — 5 — 6 V. ADA/Rehabilitation Act (Fourth and Fifth Causes of Action) 7 As an initial matter, the parties disagree about whether the ADA and Rehabilitation Act 8 causes of action are limited to challenging the manner in which Bell was transported by the S.O.R.T. 9 team – namely, without a wheelchair or other assistive device and being required to hop on one leg 10 and then carried – or whether these causes of action also embrace Bell’s claim about being denied 11 toileting assistance when he was placed in a safety cell that lacked a raised toilet. Defendants 12 contend that Bell has raised the toileting claim for the first time on summary judgment, while Bell 13 contends that his fourth and fifth amended complaints presented his claim about toileting. 14 The Court agrees with plaintiff that the fourth and fifth amended complaints alleged that Bell 15 was placed in a safety cell that lacked a toilet, that detainees are forced to defecate and urinate into 16 a grate on the ground, and that Bell “was not provided with any disability appliance such as a toilet 17 aid during his confinement in the safety cell.” Fifth Amend. Compl. ¶¶ 28, 31 (Dkt. No. 72). Those 18 allegations were incorporated into the ADA and Rehabilitation Act causes of action. Id. at ¶¶ 51, 19 55; see also Fourth Amend. Compl. ¶¶ 25, 28, 49, 53. This issue was also explored at Bell’s 20 deposition. As such, defendants have been put on notice of Bell’s toileting claim. See Updike v. 21 Multnomah Cty., 870 F.3d 939, 953 (9th Cir. 2017) (holding factual allegations of failure to provide 22 auxiliary aids and services coupled with the plaintiff’s deposition testimony regarding the same put 23 defendant county “on notice of the evidence it would need to defend against Updike’s ADA and 24 Rehabilitation Act claims”). 25 “Under both Title II of the ADA and § 504 of the Rehabilitation Act, [a plaintiff] must show 26 that he was excluded from participating in or denied the benefits of a program’s services or otherwise — 27 — 1 discriminated against.” Updike, 870 F.3d at 950 .6 “A public entity may be liable for damages under 2 Title II of the ADA or § 504 of the Rehabilitation Act ‘if it intentionally or with deliberate 3 indifference fails to provide meaningful access or reasonable accommodation to disabled persons.’” 4 Updike, 870 F.3d at 950 (quoting Mark H. v. Lemahieu, 513 F.3d 922 , 937–38 (9th Cir. 2008)). 5 “When the plaintiff has alerted the public entity to his need for accommodation (or where the need 6 for accommodation is obvious, or required by statute or regulation), the public entity is on notice 7 that an accommodation is required, and the plaintiff has satisfied the first element of the deliberate 8 indifference test.” Duvall, 260 F.3d at 1139. To meet the second prong, the entity’s failure to act 9 “must be a result of conduct that is more than negligent, and involves an element of deliberateness.” 10 Id. The “failure to provide reasonable accommodation can constitute discrimination.” Vinson v. 11 Thomas, 288 F.3d 1145, 1154 (9th Cir. 2002). 12 The Court concludes that there are triable issues of fact on the ADA and Rehabilitation Act 13 claims. There is no dispute that plaintiff is disabled or that defendants were aware of plaintiff’s 14 disability and that he had been medically cleared to use a wheelchair and a prosthetic device. The 15 parties dispute whether, under the circumstances of the S.O.R.T. extraction and safety cell 16 placement, deputies were required to transport Bell using a wheelchair or other assistive device and 17 whether plaintiff should have been provided with a prosthetic or assistance to toilet (or placed in a 18 different safety cell that had a raised toilet). Plaintiff emphasizes that the S.O.R.T. team had over 19 40 minutes to prepare his extraction and safety cell placement, and thus that there was ample time 20 to secure a wheelchair and other accommodations. Plaintiff also notes that the extraction took place 21 in C-Pod, the medical pod, and he states that there are wheelchairs and other assistive devices readily 22 available. Defendants argue that the exigencies of the situation, including security concerns, 23 required that Bell be transported as he was and placed in the safety cell in C-Pod. These questions 24 cannot be resolved on summary judgment, and accordingly the Court DENIES the parties’ cross25 motions on these claims. — 26 — — 27 — 1 CONCLUSION 2 For the foregoing reasons, defendants’ motion for summary judgment is GRANTED IN 3 || PART AND DENIED IN PART, and plaintiff's motion for partial summary judgment is DENIED. — 4 — 5 IT IS SO ORDERED. Sin la 7 Dated: November 21, 2021 SUSAN ILLSTON 8 United States District Judge — 9 — — 10 — — 11 — a 12 — 15 — — 16 — it 4 18 — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 —