FILED
NOT FOR PUBLICATION NOV 15 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALAN VAN ORDEN, personal No. 12-35520
representative of the Estate of Crystal
Rhea Bannister; ROBERT BANNISTER, D.C. No. 4:10 cv-0385 BLW
a legal heir of Crystal Rhea Bannister;
MICHELLE WALESKE, a legal heir of
Crystal Rhea Bannister, MEMORANDUM*
Plaintiffs - Appellants,
v.
CARIBOU COUNTY; CARIBOU
COUNTY SHERIFF DEPT., an Office
controlled and directed by Caribou
County; RIC L. ANDERSON, Sheriff of
Caribou County; MICHAEL HADERLIE,
Commander of the Caribou County Jail;
BROCK LOPEZ, Detention Sergeant of
the Caribou County Jail; HEATH S.
DOWNS, Detention Deputy assigned to
the Caribou County Jail; BRANDY
BREDEHOFT, Detention Deputy assigned
to the Caribou County Jail; JUDY
PROBART LONG, Dispatcher employed
by Caribou County; JODI SUTER,
Dispatcher employed by Caribou County,
Defendants - Appellees.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding
Argued and Submitted October 10, 2013
Seattle, Washington
Before: TASHIMA, GRABER, and MURGUIA, Circuit Judges.
The Estate of Crystal Bannister and two of Crystal Bannister’s heirs
(collectively “Plaintiffs”) appeal from the district court’s order granting summary
judgment in favor of Defendants Caribou County, Caribou County Sheriff’s
Department (“County Defendants”), Heath Downs, Judy Long, and other
individual correctional-officer defendants (“Individual Defendants”) (collectively,
“Defendants”) on Plaintiffs’ 42 U.S.C. § 1983 and state-law negligence claims
arising out of Crystal Bannister’s August 25, 2009, suicide at the Caribou County
jail. The district court held that: (1) no reasonable jury could find that the
Individual Defendants were deliberately indifferent to Bannister’s medical needs
under Farmer v. Brennan, 511 U.S. 825 (1994); (2) the County Defendants could
not be liable under Monell v. New York City Department of Social Services, 436
U.S. 658 (1978), absent the liability of an Individual Defendant; and (3) Plaintiffs’
negligence claim could not proceed because Idaho law does not authorize survival
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actions. Plaintiffs appeal the first holding only with respect to Defendants Downs
and Long. Plaintiffs appeal the third holding with respect to all Defendants, except
Brett Smith. We review a district court’s grant of summary judgment de novo.
Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc). We reverse on all
three grounds.
1. The district court concluded, and we agree, that the conditions of
Bannister’s confinement posed an objectively substantial risk of serious harm to
Bannister by heightening the risk of her suicide. Cf. Conn v. City of Reno, 591
F.3d 1081, 1095–96 (9th Cir. 2010), vacated, 131 S. Ct. 1812 (2011), reinstated in
relevant part, 658 F.3d 897 (9th Cir. 2011); Simmons v. Navajo Cnty., 609 F.3d
1011, 1018 (9th Cir. 2010). We disagree, however, that no genuine issue of
material fact exists on the question of Downs’ and Long’s subjective awareness
under the second prong of Farmer. 511 U.S. at 837. Downs and Long knew that
Bannister had attempted suicide in the past and had been recently released from a
hospital. Bannister exhibited highly unstable behavior during her incarceration,
including hyperagitation, crying, and kicking at her cell door. Long’s comment
that she “assumed [Bannister was on] suicide watch” indicates her subjective
perception of Bannister’s condition, regardless of the objective accuracy of that
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perception. And circumstantial evidence supports the inference that Downs
overheard Bannister make at least one suicide threat.
The fact that the jail received a fax from Bannister’s treating physician
stating that Bannister was “mentally and medically stable” does not alter our
conclusion. For one, no evidence in the record indicates that either Downs or Long
knew of the fax’s contents other than that it cleared Bannister for incarceration.
More importantly, Bannister’s condition substantially deteriorated in the hours
after the jail received the fax. At the least, there is a triable issue of fact whether
the fax precluded any possibility of Downs and Long’s subjective awareness, given
their limited knowledge of its contents and the effect of intervening events.
Indeed, Long’s assumption that Bannister was “on suicide watch” suggests that the
fax was not “completely antithetical to any suggestion [Bannister] was suicidal.”
Because Bannister actively manifested her suicidality in the hours
immediately preceding her suicide, we hold that the district court erred in
concluding that no reasonable jury could find that Downs and Long were
subjectively aware of a substantial risk of serious harm to Bannister. See Conn,
591 F.3d at 1097–98; cf. Simmons, 609 F.3d at 1018–19; Clouthier v. Cnty. of
Contra Costa, 591 F.3d 1232, 1246–48 (9th Cir. 2010).
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2. The district court granted summary judgment to County Defendants
on Plaintiffs’ Monell claims because there was no underlying deprivation of
Bannister’s constitutional rights. Because we reverse summary judgment on
Plaintiffs’ § 1983 claims against Downs and Long, we remand to the district court
for consideration of County Defendants’ liability under Monell.
We also note, as Plaintiffs correctly contend, that “[t]wo different paths to
municipal liability [may] apply to this case.” In addition to predicating municipal
liability on a showing that an Individual Defendant violated Bannister’s
constitutional rights, a municipality may be liable under Monell, even if no
employee is found individually liable. See Tsao v. Desert Palace, Inc., 698 F.3d
1128, 1142–43 (9th Cir. 2012); Gibson v. Cnty. of Washoe, 290 F.3d 1175, 1186
n.7 (9th Cir. 2002); Fairley v. Luman, 281 F.3d 913, 917 & n.4 (9th Cir. 2002) (per
curiam); see also City of Canton v. Harris, 489 U.S. 378, 382, 393 (1989). Thus it
remains open on remand for the district court to consider County Defendants’
liability apart from the liability of any Individual Defendant.
3. Lastly, we reverse the district court’s grant of summary judgment
against Plaintiffs on their state-law negligence claim. The district court construed
it as a survival claim and granted summary judgment because Idaho law does not
authorize survival actions. Plaintiffs contend that they alleged a wrongful death
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claim, not a survival claim, and that the district court misunderstood their remarks
regarding this claim. Pleadings need not specify particular legal theories, but only
claims for relief, see Alvarez v. Hill, 518 F.3d 1152, 1157 (9th Cir. 2008); Crull v.
GEM Ins. Co., 58 F.3d 1386, 1391 (9th Cir. 1995), and Plaintiffs adequately
pleaded the factual content of a wrongful death claim, see Castorena v. Gen. Elec.,
238 P.3d 209, 220 (Idaho 2010); Hayward v. Valley Vista Care Corp., 33 P.3d 816,
821 (Idaho 2001). The parties and the district court miscommunicated at the
motions hearing, mistaking the arguments over the survivability of Plaintiffs’ §
1983 claims for the arguments over Plaintiffs’ negligence claim. Because we
remand to the district court for consideration of the claim as a wrongful death
claim, we do not consider any of Defendants’ possible defenses.
The judgment of the district court is reversed and the case is remanded for
further proceedings consistent with this disposition.
REVERSED and REMANDED.
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