FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
R
OGER
D. M
ORTIMER
, individually
and as representative of the class
of persons defined in averment 15;
No. 07-55393
D
EANE
D
ANA
; D
ON
K
NABE
,
D.C. No.
Plaintiffs-Appellants,
CV-00-13002-DDP
v.
OPINION
L
EROY
D. B
ACA
,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Argued and Submitted
August 7, 2009—Pasadena, California
Filed February 5, 2010
Before: Kim McLane Wardlaw and Consuelo M. Callahan,
Circuit Judges, and Ralph R. Beistline,* Chief District
Judge.
Opinion by Judge Callahan
*The Honorable Ralph R. Beistline, United States District Judge for the
District of Alaska, sitting by designation.
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COUNSEL
Marion R. Yagman (argued) and Joseph Reichmann, Yagman
& Yagman & Reichman, Venice Beach, California, for the
plaintiffs-appellants.
David D. Lawrence, Michael D. Allen (argued), and Justin W.
Clark, Franscell, Strickland, Roberts & Lawrence, O.C., Glen-
dale, California, for the defendant-appellee.
OPINION
CALLAHAN, Circuit Judge:
Plaintiffs brought this action under 42 U.S.C. § 1983
against the Los Angeles County Sheriff, Leroy Baca (“Baca”),
in his official capacity. Plaintiffs allege that their civil rights
were violated when they were kept in custody by the Los
Angeles County Sheriff’s Department (“LASD”) for periods
of time ranging from twenty-six to twenty-nine hours after the
court had authorized their releases, and that their over-
detentions were the result of a policy of deliberate indiffer-
ence to their constitutional rights. We determine that our prior
opinion in this litigation, Berry v. Baca, 379 F.3d 764 (9th
Cir. 2004), did not preclude the district court from consider-
ing defendant’s motion for summary judgment on its merits,
and that the court properly granted defendant’s motion for
summary judgment because the proffered evidence would not
support a finding of deliberate indifference.
I
As noted in our prior opinion, plaintiff Roger Mortimer was
acquitted at 11:45 a.m. on August 14, 2000, the Superior
Court authorized his release, and he was released on August
15, 2000 at 4:57 p.m. Berry, 379 F.3d at 767. The Superior
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ACA
Court ordered plaintiff Anthony Hart’s release from jail on
August 17, 2000, and he was released on August 18, 2000, at
2:02 p.m., just over twenty-nine hours after the court autho-
rized his release. Id. The Superior Court authorized the
release of plaintiff Rodney Berry on February 1, 2001 at
11:30 a.m., and he was released on February 2, 2001, at 2:02
p.m. Id. Plaintiff S.A. Thomas was held in the Los Angeles
County Jail until June 23, 2004, but claims that he should
have been released two days earlier on June 21, 2004. Plain-
tiffs filed their actions in the United States District Court for
the Central District of California alleging “a policy of deliber-
ate indifference to their constitutional rights that resulted in
unlawful periods of over-detention.” Id. at 766. Their cases
were consolidated before the district court. Id.
A. Berry v. Baca, 370 F.3d 764.
On May 29, 2003, the district court granted Baca’s motion
for summary judgment based on the Ninth Circuit’s decision
in Brass v. County of Los Angeles, 328 F.3d 1192 (9th Cir.
2003). Plaintiffs appealed and we reversed and remanded. Id.
at 773. We first set forth the applicable law and explained the
district court’s ruling as follows:
In order to hold Baca liable under § 1983, plaintiffs
must demonstrate that “ ‘action pursuant to official
municipal policy of some nature caused a constitu-
tional tort.’ ” Brass, 328 F.3d at 1198 (quoting
Monell, 436 U.S. at 691 . . .). We have stated that “a
local governmental body may be liable if it has a
policy of inaction and such inaction amounts to a
failure to protect constitutional rights.” Oviatt v.
Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992) (citing
City of Canton v. Harris, 489 U.S. 378, 388, . . .
(1989)). However, the policy of inaction must be
more than mere negligence, see Daniels v. Williams,
474 U.S. 327, 333-36, . . . (1986); it must be a con-
scious or deliberate choice among various alterna-
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ORTIMER
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ACA
tives. See Lee v. City of Los Angeles, 250 F.3d 668,
681 (9th Cir.2001).
In order to impose liability based on a policy of
deliberate inaction, the “plaintiff must establish: (1)
that he possessed a constitutional right of which he
was deprived; (2) that the municipality had a policy;
(3) that this policy ‘amounts to deliberate indiffer-
ence’ to the plaintiff’s constitutional right; and (4)
that the policy [was] the ‘moving force behind the
constitutional violation.’ ” Oviatt, 954 F.2d at 1474
(quoting City of Canton, 489 U.S. at 389-91, . . . ).
The district court did not discuss this four-step show-
ing, because it did not address the plaintiffs’ claims
that the County’s policies amount to a policy of
deliberate indifference to their constitutional rights.
Instead, the district court found that it “is bound by
the holding in Brass and finds that the County’s
challenged policies did not result in a violation of the
plaintiffs’ constitutional rights.”
Id. at 767.
We then found that Brass was distinguishable. We noted
that “Brass’s primary claim focused on the County’s policy of
releasing prisoners pursuant to court order only after the com-
pletion of processing all inmates scheduled for release on that
day.” Id. at 768. We explained:
Here, in contrast to Brass, the plaintiffs do not limit
their challenge to the County’s specific policies.
Rather, as argued in their briefs to this Court, they
challenge the policy “in toto . . . that simply delays
all releases until the system, in its sweet time, and
with the resources it chooses . . . is ready to make
releases.” Stated another way, the plaintiffs in this
case challenge the implementation of the County’s
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ACA
policies, rather than the specific policies themselves.
They claim that the County’s unreasonably ineffi-
cient implementation of its administrative policies
amounts to a policy of deliberate indifference to their
constitutional rights.
While on first glance this may appear a subtle differ-
ence, in fact there is a crucial distinction between the
challenge to specific policies in Brass and the chal-
lenge to the implementation of the policy “in toto”
in this case. It cannot be the case that, if the Coun-
ty’s system of administratively processing releases
took several days or weeks to complete, its policy
could not be challenged as one of “deliberate indif-
ference” simply because each of the administrative
procedures employed is theoretically reasonable. As
a matter of law, the County’s system of administra-
tive processing cannot be immune from allegations
that, in practice, it amounts to a policy of deliberate
indifference. Brass did not raise this type of chal-
lenge, because Brass focused his challenge upon the
County’s release policies themselves. Tellingly,
nowhere in the Brass opinion does the panel discuss
the “deliberate indifference” line of Monell cases,
because this was not the claim at issue. Here, in con-
trast, deliberate indifference is precisely the claim at
issue.
Id. at 768.
We then found the case to be more closely related to Oviatt
v. Pearce, 954 F.2d 1470, where the plaintiff alleged that he
had been held without arraignment for 114 days because the
county’s “policy regarding missed arraignments constituted a
policy of deliberate indifference to the inmates’ constitutional
rights.” Berry, 379 F.3d at 768-69. The panel noted that Berry
concerned only 29 hours of over-detention rather than 114
days, and that the defendants had offered “more substantial
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justifications for its delay,” but concluded that at the summary
judgment stage the Oviatt framework applied. Id. at 769.
A the end of the opinion, the panel returned to “Oviatt’s
four-step framework for resolving Monell claims of deliberate
indifference.” Id. at 773. The court commented:
In order to impose liability based on a policy of
deliberate inaction, the plaintiff must establish that
he possessed a constitutional right of which he was
deprived. Here, the plaintiffs possessed a constitu-
tional right to freedom from imprisonment a reason-
able time after they were judicially determined to be
innocent of the charges against them. See Oviatt, 954
F.2d at 1474 (stating that “[t]he Supreme Court has
recognized that an individual has a liberty interest in
being free from incarceration absent a criminal con-
viction”); cf. Brass, 328 F.3d at 1200 (recognizing
that the plaintiff “may have had a due process right
to be released within a reasonable time after the rea-
son for his detention ended”).
Step two of Oviatt — the existence of a municipal
policy — is uncontested. Both parties agree that the
County has a set of administrative policies that guide
releases after judicial determinations of innocence.
Both parties also agree on step four: these policies
resulted in delays in the release of each of the plain-
tiffs, ranging from twenty-six to twenty-nine hours
after their court-ordered release.
Step three of Oviatt remains: did this set of policies
— or, alternatively, the lack of policies to expedite
the process — amount to a policy of deliberate indif-
ference to the plaintiffs’ constitutional rights? This
question turns on whether the County’s implementa-
tion of its policies was reasonable in light of the
delay that resulted. Baca concedes that he knew that
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the implementation of the County’s policies was
resulting in delays of up to 48 hours. Therefore, if
the delays were not reasonably justified, the § 1983
claim against the County has merit, because the
County was continuing to adhere to a policy that it
knew resulted in unlawful detentions without reason-
able cause. See Bd. of County Comm’rs v. Brown,
520 U.S. 397, 407, . . . (1997) We find that this ques-
tion of reasonableness is properly conceived of as a
jury determination.
Id.
B. Proceedings on remand.
On remand both sides submitted evidence in the form of
exhibits and declarations. The district court found that defen-
dant’s evidence showed that the number of over-detentions
had been substantially reduced. The total number of over-
detentions of inmates in the County system of 24 hours or
more peaked in 1997, and declined every subsequent year
through 2004. Specifically, the defendant offered evidence
that the numbers declined from 248 over-detentions in 1997
to 9 in 2004. During the time period in issue, there were
50,706 inmate releases with only 43 over-detentions of 24
hours or more.
The defendant presented evidence that the LASD had insti-
tuted several measures to reduce the number of over-
detentions. These included the “In-Court Release” program,
which began in 2001. This program allows inmates to be
released at the courthouse immediately following a judge’s
release order without returning to the jail, provided that a
prompt check of the database does not reveal any other war-
rants or holds. Another measure was the “Greenband” pro-
gram in which inmates who could not be released at the
courthouse due to a need to give a DNA sample or have a
medical examination were given a green wristband and
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returned to the Inmate Reception Center (“IRC”) only briefly
to perform the procedure before release. A third measure was
the Early Release Program, which begins the process for
releasing inmates 72 hours before the expiration of their sen-
tences, and often resulted in their early release.
In addition, Baca proffered evidence that the LASD had
created a database called the “Over-Detention and Erroneous
Release” tracking system (“ODER”) to keep track of recorded
potential over-detentions. The ODER system contains records
of all inmates held longer than 24 hours after their release is
entered into the Automated Justice Information System
(“AJIS”) database, although not all of these over-detentions
are deemed improper on further review. Defendant also
asserted that in order to reduce over-detentions, the LASD
had adopted a 26-week training program for new employees,
and that it tests on a daily basis the pneumatic system that
delivers documents related to inmates’ releases.
Plaintiffs offered several items in opposition to Baca’s
motion for summary judgment. First, they proffered the testi-
mony of Captain Charles Jackson, who headed the Inmate
Reception Center of the county jail from 1998 to 2000, that
during his tenure clerks at the IRC were given a day or two
to record potential over-detentions in their log book. Second,
they offered testimony from Patricia Bickley-Jones, a clerk at
the IRC, that she was required to keep a log book of over-
detentions, but that she never received instructions as to “what
the reason or reasons are, if any for listing when someone
might have been over-detained.” She indicated that she would
typically mark an inmate in the log book as a potential over-
detention if the inmate had been detained “a day over.” Plain-
tiffs also offered supervisor “packets” or reports for all over-
detentions from 2000 to 2005. The numbers of potential over-
detentions noted on these reports were higher than Baca’s
numbers although they also reflected the substantial decrease
of over-detentions to a total of 71 in 2005. Plaintiffs stressed
that very few of the recorded over-detentions were for a
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period of more than 24 hours, but less than 48 hours, and
asserted that this indicated that 24 to 48 hour over-detentions
were under-recorded.
The district court granted Baca’s motion for summary judg-
ment. It noted that even construing any ambiguities in plain-
tiffs’ favor, “plaintiffs’ own exhibit shows that the total
number of potential over-detentions listed in ODER and the
number of packets presented are very close.” It further noted
that the relatively low number of two day over-detentions was
logical in light of the In-Court Release and Greenband pro-
grams. These programs were in effect “as part of an injunc-
tion in Vanke v. Block (CV 98-4111).”
1
Thus, plaintiffs had
not provided the court “with sufficient ambiguity to cast
doubt on the Sheriff’s numbers.”
The district court discounted the testimony of Captain Jack-
son and Ms. Bickley-Jones. Capt. Jackson left his post as head
of IRC in April 2000; thus his understanding of the proce-
dures “is before the injunction in Vanke, before early release,
In-Court Release and Greenband programs, and before the
relevant class period.” The court noted that Ms. Bickley-
Jones’ deposition testimony was heavily excerpted in plain-
tiffs’ exhibit and concluded that it offered no indication that
there was a system of deliberate indifference.
The district court explained its grant of summary judgment
as follows:
1
In Vanke, the district court issued a preliminary injunction against the
LASD in 1998 concerning practices that allegedly resulted in over-
detention of pre-trial detainees. In April 2001, the district court denied the
plaintiffs’ motion to convert the preliminary injunction into a permanent
injunction. The district court eventually awarded attorneys’ fees to plain-
tiffs’ attorney. Vanke v. Block, 2002 WL 1836305 (C.D. Cal. 2002). On
appeal, the Ninth Circuit reversed the award of attorneys’ fees. Vanke v.
Block, 77 Fed. Appx. 948 (9th Cir. 2003).
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The Court finds that the Sheriff has shown the
absence of a material issue of fact. The LASD pro-
cesses tens of thousands of detainees every year. For
the class period, nearly 51,000 individuals were
released. Each of these individuals has court-related
and administrative paperwork that must be processed
in order to ensure that the release was proper. Not
only has the Sheriff taken steps since Vanke to
reduce the number of potential overdetentions, the
number itself has dramatically decreased. As a mat-
ter of law, the Sheriff’s implementation of polic[ies]
since the Vanke injunction to effectuate 51,000
releases during the class period, of which 43 are
potential overdetentions, is reasonable and cannot
constitute a Monell deliberate indifference claim.
Plaintiffs filed a timely notice of appeal from the district
court’s order granting summary judgment in favor of the
defendant.
II
This appeal raises two questions. First, whether our prior
opinion in Berry required that the district court allow the case
proceed to a jury. Second, if our prior opinion did not fore-
close the district court’s consideration of the motion for sum-
mary judgment on its merits, whether the district court
properly granted summary judgment in favor of the defen-
dant.
A. Berry did not require that the district court allow
plaintiffs’ claims to be presented to a jury.
Although Berry concludes with the statement “[w]e find
that this question of reasonableness is properly conceived of
as a jury determination,” both a careful review of the opinion
and an appreciation of Ninth Circuit precedent support a
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determination that the district court on remand properly con-
sidered Baca’s motion for summary judgment on its merits.
In the context of the entire opinion, the “question” in the
cited sentence appears to be whether the delays were unrea-
sonable (and hence violated plaintiffs’ constitutional rights)
and not whether defendant had a policy of deliberate indiffer-
ence. Most importantly, in Berry we recognized that the dis-
trict court had not addressed “the plaintiffs’ claims that the
County’s policies amount to a policy of deliberate indiffer-
ence.”
2
379 F.3d at 767. Accordingly, the record before us in
Berry was not sufficiently developed for us to determine as a
matter of law that there were material facts concerning the
alleged policy of deliberate indifference that precluded sum-
mary judgment. Berry’s focus on whether the delays might be
unreasonable, rather than whether the defendant had a policy
of deliberate indifference, is also reflected in other parts of the
opinion. For example, the panel comments that “[i]t may very
well be that a reasonable juror would conclude that, given the
necessary administrative tasks and voluminous demands on
the county, the delays at issue were justified,” and concludes
that “this is a factual determination that is appropriately left
to the jury to decide.” Id. at 771. Thus, Berry did not foreclose
the district court on remand from reviewing defendant’s prof-
fered evidence concerning deliberate indifference and ruling
on the motion for summary judgment on its merits.
[1] The conclusion that the district court could consider the
2
The court’s specific comment was:
The district court did not discuss [the Oviatt] four-step showing,
because it did not address the plaintiffs’ claims that the County’s
policies amount to a policy of deliberate indifference to their con-
stitutional rights. Instead, the district court found that it “is bound
by the holding in Brass and finds that the County’s challenged
policies did not result in a violation of the plaintiffs’ constitu-
tional rights.”
379 F.3d at 767.
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motion for summary judgment on the merits is supported by
our interpretation of “law of the case.” Generally, “law of the
case” does not apply to issues or claims that were not actually
decided. 18 James Wm. Moore et al., Moore’s Federal Prac-
tice ¶ 134.20[4] (3d ed. 2009); see United States ex rel. Lujan
v. Hughes Aircraft Co., 243 F.3d 1181, 1186 (9th Cir. 2001)
(“The doctrine does not apply to issues not addressed by the
appellate court.”); Hegler v. Berg, 50 F.3d 1472, 1475 (9th
Cir. 1995) (“The doctrine, however, applies only to issues
considered and actually decided by the first court.”).
[2] Because we recognized in Berry that the district court
had not addressed the evidence of deliberate indifference,
comments in the opinion concerning deliberate indifference
do not amount to an actual decision as to the sufficiency of
the evidence. To hold otherwise would be inequitable and
inefficient. Defendant would be prejudiced. Because the dis-
trict court did not address the evidence of deliberate indiffer-
ence, the defendant had no reason to present his facts and
arguments on this issue to the Ninth Circuit. Moreover, a con-
trary holding arguably would force a district court to allow the
issue to go to the jury even though the jury could not make
a factual finding in favor of the plaintiffs. If the jury made a
factually unsupported finding, the district judge would be
compelled to either direct a verdict on the issue or grant judg-
ment notwithstanding the verdict.
[3] Finally, even if “law of the case” were otherwise con-
strued to limit the district court’s options, we have recognized
an applicable exception. In Minidoka Irrigation Dist. v. Dep’t
of Interior, 406 F.3d 567 (9th Cir. 2005), we reiterated that
“the law of the case doctrine is subject to three exceptions that
may arise when “(1) the decision is clearly erroneous and its
enforcement would work a manifest injustice, (2) intervening
controlling authority makes reconsideration appropriate, or
(3) substantially different evidence was adduced at a subse-
quent trial.” Id. at 573 (citing Old Person v. Brown, 312 F.3d
1036, 1039 (9th Cir. 2002)). See also Hegler, 50 F.3d at 1475
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(same); Moore’s Federal Practice ¶ 134.22[2][b]. Here, even
though there was not a trial, the third exception applies and
allows the district court to consider the motion for summary
judgment on its merits. There was considerably more and dif-
ferent evidence before the district court in 2007, when it
granted the motion for summary judgment that is at issue in
this appeal, as compared to the record before the court in 2002
which was the record reviewed in Berry.
We conclude that nothing in Berry precluded the district
court from considering defendant’s new motion for summary
judgment on its merits because (1) Berry does not hold that
plaintiffs were entitled to have their allegations regarding a
policy of deliberate indifference determined by a jury, (2)
even if Berry is interpreted to contain such a suggestion, the
“law of the case” would not apply because the issue was not
actually determined by the panel, and (3) even if the “law of
the case” would otherwise apply, this case falls within the
exception to that doctrine for instances in which substantially
different evidence is adduced at the subsequent proceeding.
B. The district court properly granted summary judgment.
The district court’s grant of summary judgment is reviewed
de novo. Buono v. Nortion, 371 F.3d 543, 545 (9th Cir. 2004).
Federal Rule of Civil Procedure 56(c)(2) provides that sum-
mary judgment is warranted when “the pleadings, the discov-
ery and disclosure materials on file, and any affidavits show
that there is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law.” On
review, we determine “viewing the evidence in the light most
favorable to the non-moving party, whether there are any gen-
uine issues of material fact and whether the district court cor-
rectly applied the relevant substantive law.” Guebara v.
Allstate Ins. Co., 237 F.3d 987, 922 (9th Cir. 2001).
As we noted in Berry, plaintiffs sued Baca in his official
capacity, pursuant to 42 U.S.C. § 1983. 379 F.3d at 767.
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There is no respondeat superior liability under § 1983. Monell
v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978). We further
noted that Baca did not dispute that he acted on behalf of the
official policy of the county. Berry, 379 F.3d at 767. We
explained that:
“a local governmental body may be liable if it has a
policy of inaction and such inaction amounts to a
failure to protect constitutional rights.” Oviatt v.
Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992) (citing
City of Canton v. Harris, 489 U.S. 378, 388, . . .
(1989)). However, the policy of inaction must be
more than mere negligence, see Daniels v. Williams,
474 U.S. 327, 333-36, . . . (1986); it must be a con-
scious or deliberate choice among various alterna-
tives. See Lee v. City of Los Angeles, 250 F.3d 668,
681 (9th Cir.2001).
Id.
[4] The district court ruled correctly that the evidence sub-
mitted does not support a finding of deliberate indifference.
Since the preliminary injunction issued in Vanke in 1998, the
LASD has undergone an extensive revision of its process for
releasing inmates. These policy changes, which include the
In-Court Release, Greenband, and Early Release programs,
have resulted in a tremendous reduction in the number of
over-detentions, even according to the statistics submitted by
plaintiffs. Although there continue to be over-detentions, they
are a very small percentage of the total number of inmate
releases. In a jail system as large as that of Los Angeles
County, there are bound to be some errors due to employee
negligence or honest mistakes. However, given the LASD’s
many affirmative efforts to remedy the problem, the evidence
in the record will not support a finding of a policy of deliber-
ate indifference.
[5] Plaintiffs’ evidence does not raise any material issue of
fact. Although Ms. Bickley-Jones’ testimony was that she was
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not told the reasons for recording over-detentions, she none-
theless indicated that she recorded over-detentions of “a day
over” in the log book. Thus, while she may not have known
why she was doing so, Ms. Bickley-Jones’ testimony is that
she faithfully entered information concerning over-detention.
Capt. Jackson’s testimony concerned alleged procedures in
place prior to the time period in which plaintiffs were in cus-
tody, and plaintiffs offered no evidence that these procedures
continued. To the contrary, the evidence of the new programs
undertaken by the LASD indicates that they did not. Finally,
plaintiffs’ assertion that their own over-detentions were not
recorded in the “supervisor report” packets does not raise any
substantial question concerning the adequacy of defendant’s
records because plaintiffs Mortimer, Hart and Berry were all
released within 24 hours of when their release orders were
entered into the AIJS database, with the result that their over-
detentions would not have been entered into the ODER data-
base. Thus, the absence of notations about their over-
detentions is not evidence that the LASD “stopped recording
over-detentions of more than 24 hours but less than 48 hours.”
Furthermore, any such implication is overwhelmed by the
records submitted by both sides that show that over-detentions
of less than 48 hours were recorded and that the number of
over-detentions were substantially reduced over the years in
issue.
[6] In sum, as we noted in Brass, plaintiffs may well have
a due process right to be released within a reasonable time
after the basis for their detentions have ended. 328 F.3d at
1200. See also Oviatt, 954 F.2d at 1474 (“The Supreme Court
has recognized that an individual has a liberty interest in
being free from incarceration absent a criminal conviction.”).
However, for liability to attach to Baca in his official capac-
ity, plaintiffs must show that their over-detentions were the
result of a set of policies — or lack of policies — that
amounted to a policy of deliberate indifference. Berry, 379
F.3d at 773. In Oviatt, we noted that the Supreme Court had
indicated that a deliberate indifference exists “when the need
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for more or different action ‘is so obvious, and the inadequacy
[of the current procedure] so likely to result in the violation
of constitutional rights, that the policymakers . . . can reason-
ably be said to have been deliberately indifferent to the
need.’ ” 954 F.3d at 1477-78 (quoting City of Canton, Ohio
v. Harris, 489 U.S. 378, 390 (1989). Whatever the situation
in 1998 when the district court issued a preliminary injunction
in Vanke, on the evidentiary record here, including the cura-
tive steps taken by the LASD in the years covered by this law-
suit, no reasonable jury could find that the defendant was
oblivious of, or indifferent to, over-detentions.
For the foregoing reasons, the district court’s grant of sum-
mary judgment in favor of defendant is AFFIRMED.
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