Clouthier v. County of Contra Costa

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GREGORY CLOUTHIER; ANN 

CLOUTHIER, individually and on

behalf of the Estate of Robert

John Clouthier,

Plaintiffs-Appellants,

v. No. 07-16703

COUNTY OF CONTRA COSTA;  D.C. No.

CV-06-03893-MMC

WARREN RUPF; MATT FOLEY,

Sheriff’s Deputy; ERIK STEELE; OPINION

MARGARET BLUSH, sued in their

individual capacities and as

employees of Contra Costa

County,

Defendants-Appellees.



Appeal from the United States District Court

for the Northern District of California

Maxine M. Chesney, District Judge, Presiding

Argued and Submitted

March 10, 2009—San Francisco, California

Filed January 14, 2010

Before: M. Margaret McKeown and Sandra S. Ikuta, Circuit

Judges, and Frederic Block,* District Judge.

Opinion by Judge Ikuta;

Partial Concurrence and Partial Dissent by Judge Block

*The Honorable Frederic Block, Senior United States District Judge for

the Eastern District of New York, sitting by designation.

1117

CLOUTHIER v. COUNTY OF CONTRA COSTA 1121

COUNSEL

Stan Casper and Thomas A. Seaton, Casper, Meadows, Sch-

wartz & Cook, Walnut Creek, California, attorneys for the

appellant.

Janet L. Holmes, Office of County Counsel, Martinez, Cali-

fornia, attorney for the appellees.

OPINION

IKUTA, Circuit Judge:

The plaintiffs in this appeal brought an action under 42

U.S.C. § 1983 alleging that a mental health specialist, two

sheriff’s deputies, and the County of Contra Costa violated

the Fourteenth Amendment due process rights of their son,

Robert Clouthier, by failing to prevent his suicide while he

was in pretrial detention. The district court granted summary

judgment in favor of the defendants. We have jurisdiction

1122 CLOUTHIER v. COUNTY OF CONTRA COSTA

under 28 U.S.C. § 1291, and we affirm the district court’s

grant of summary judgment as to the two deputies and the

County, but we reverse as to the mental health specialist

because there are genuine issues of material fact as to whether

she was deliberately indifferent to a substantial risk of serious

harm to Clouthier.

I

On the evening of July 26, 2005, after an argument with his

father at the Clouthiers’ home, Clouthier became violent,

destroyed a china cabinet, and jumped through a plate glass

window, resulting in lacerations and severe bleeding. His

family called the police; the sheriff’s office responded along

with ambulance and fire personnel. After Clouthier’s father

signed a citizen’s arrest for battery, the sheriff’s office placed

Clouthier into custody for both misdemeanor battery and fel-

ony vandalism. Clouthier was extremely upset about being

taken into custody. As he was taken into the ambulance, he

hit his head against the side of the ambulance several times.

Once at the hospital, he refused to have his wounds stitched.

The next morning, July 27, Clouthier was booked into the

Martinez Detention Facility (“MDF”).

At MDF, new detainees fill out a mental health question-

naire during the intake process. If an inmate answers “yes” to

certain questions, he is interviewed by a member of Contra

Costa County Mental Health Services. The Mental Health

Services department, run by administrative director Miles

Kramer, works in conjunction with the Sheriff’s Department

by virtue of a contractual agreement. Mental Health Services

provides on-site evaluation, counseling, therapy, suicide pre-

vention, medication management, crisis intervention, and sub-

stance abuse counseling, while the Sheriff’s Department

custodial deputies maintain security and safety in the jail’s

housing units.

After filling out a mental health questionnaire, Clouthier

was evaluated by Sharlene Hanaway, a Contra Costa County

CLOUTHIER v. COUNTY OF CONTRA COSTA 1123

Mental Health Specialist. Clouthier told Hanaway several

times that he was suicidal, and that he wanted to be “uncon-

scious for the rest of his life.” Hanaway described Clouthier

as “despondent, hopeless, suicidal” and “one of the most sui-

cidal inmates she had ever seen.” Hanaway’s notes state that

Clouthier had made numerous past suicide attempts, including

one incident two months earlier that required hospitalization

after he cut his wrists. Hanaway’s notes reflect that Clouthier

had taken medication for several years, but that he had ceased

doing so two and a half years ago.

Hanaway placed Clouthier in a “safety cell” in the intake

area of the jail. She had him wear a suicide smock, a stiff gar-

ment that cannot be fashioned into a noose. She restrained his

ankles and began noting his status every fifteen minutes in an

Observation Log. She also approached the mental health

workers, including Margaret Blush, and the deputies in the

intake area, and advised them that Clouthier was “truly suici-

dal” and “the real deal.”

Hanaway spoke with Clouthier periodically throughout the

morning of July 27, “talking to him and making sure he was

okay and [asking] what his state of mind was.” By that after-

noon, Clouthier informed Hanaway that he was not feeling

suicidal anymore. Hanaway did not trust him, however, not-

ing “he had multiple suicide attempts before, and given his

history and his despondency, his hopelessness, you just don’t

recover that quickly.” Hanaway convinced Clouthier to con-

sider medication, and she called for an emergency consulta-

tion with Dr. Douglas Hanlin, a psychiatrist. Hanlin

prescribed Effexor XR for Clouthier’s depression and Trazo-

done to help him sleep. Hanlin also recommended that Clou-

thier be placed in M-Module, a housing section for unstable

inmates, and that he subsequently be reevaluated to determine

whether a short-term involuntary hospitalization would be

necessary.

Around 2 p.m., Hanaway transferred Clouthier to Observa-

tion Room 7, one of the rooms in M-Module equipped with

1124 CLOUTHIER v. COUNTY OF CONTRA COSTA

large windows through which the Sheriff’s deputies can moni-

tor the occupant. Hanaway spoke to Matt Foley, the deputy on

duty in M-Module at the time, and asked Foley whether there

was room for Clouthier in the M-Module. She told Foley that

Clouthier was suicidal, had been suicidal all day long, “had

numerous prior attempts,” and needed to be on 15-minute

checks. As documented in the Observation Log, Foley

checked on Clouthier every fifteen minutes for the next five

hours, until Clouthier was taken off the Observation Log.

Before she left her shift, Hanaway gave a copy of her notes

to Blush and told her that Clouthier “had been very suicidal

throughout the day and that [Hanaway] felt that he needed to

be in the observation room and that he needed to be observed

and [Blush] needed to look in on him.” Hanaway left MDF

around 6:30 p.m. on July 27.1

Around 7 p.m. the same evening, Blush went up to M-

Module and spoke with Clouthier for “[l]ess than five min-

utes.” She informed Foley that Clouthier could be given regu-

lar prison clothes and a blanket but that he was not to be given

any utensils or personal hygiene items. She also told Foley

that Clouthier could be removed from the fifteen minute

Observation Log, and she made an entry to that effect in the

log. Blush testified that she took Clouthier off the Observation

Log because in her view, the risk of suicide had decreased,

although she was uncertain whether it had disappeared. She

explained that her “clinical judgment was that Robert was

improving, would benefit from having normal jail clothes and

bedding and could be further evaluated by mental health staff

the following day.” However, Blush also agreed that Clou-

thier was not “out of the woods” yet.

Blush claims she told Foley to keep Clouthier in the Obser-

vation Room, and Foley indicated he understood and

responded “I’m sitting right here.” Foley disputes this. He tes-

1

Hanaway did not return to work until after Clouthier’s suicide.

CLOUTHIER v. COUNTY OF CONTRA COSTA 1125

tified that Blush did not instruct him to keep Clouthier in the

Observation Room. Later, he testified that he could not

remember if Blush directed him to keep Clouthier in the

Observation Room, but that if she had so directed him it

would have been something to which he would have paid

attention. Foley did not write down Blush’s alleged instruc-

tion to keep Clouthier in the Observation Room in the “Red

Book,” a log the deputies kept to inform one another of

important events, or otherwise communicate an instruction to

the next deputy on duty.

Regardless of whether Blush instructed Foley to keep Clou-

thier in the Observation Room, Foley did not move Clouthier

from the room, and he remained there when Foley left work

on July 27. Foley returned on July 28 to find Clouthier was

still in the Observation Room. Per M-Module standard prac-

tice, Foley continued to check on Clouthier every thirty min-

utes. Foley ended his duty at 9:30 pm on the evening of July

28 with Clouthier still in the Observation Room. Foley did not

return to work until August 1st, when Clouthier had already

been moved into the M-Module general population.

The next day, on July 29, Victoria Brown, another mental

health specialist, observed Clouthier in Observation Room 7

during dinner hour for three to five minutes. She “understood

that he was suicidal,” and asked him some questions to evalu-

ate his mental state. She observed that “while he appeared

calm . . . he still appeared acute to me, his affect or what I

could see on his face suggested that he was still . . . not feel-

ing well.” Therefore, she did not think that “trying to have a

lengthy conversation would be appropriate at that time.” She

further testified that she was not “overly concerned with

[Clouthier’s] situation, given the background information I

had on him. He was calm and looked emotionally drained. He

looked like he needed rest more than anything.” Based on her

“over 37 years of working with potentially suicidal mental

health patients,” Brown’s clinical evaluation “was that he was

not actively suicidal at the time.” Although she “did not feel

1126 CLOUTHIER v. COUNTY OF CONTRA COSTA

the need to put him back on the observation log,” she did

“feel he would benefit from additional time in the observation

room.” She did not make any notes on Clouthier’s medical

chart, “as the situation was status quo.” She did not confer

with any deputies or Mental Health staff regarding her obser-

vations.

That evening, Deputy Eric Steele began his shift on M-

Module. The other deputies told him that earlier in the week

Clouthier had been placed in Observation Room 7 “for being

a danger to himself,” and since then had been “taken off the

Observation Log but had not yet been moved” from the

Observation Room. Steele reviewed the Red Book, but he did

not see any information about why Clouthier was in the

Observation Room. Nor did Steele see any of Clouthier’s

medical records kept by Mental Health. Clouthier remained in

the Observation Room from July 29 through July 31.

On July 31, the Red Book stated that Clouthier had refused

free time at 10:21 a.m., refused lunch at 11:36 a.m., and

refused dinner at 5:11 p.m. Steele testified that the Red Book

notation about Clouthier skipping his free time did not raise

a “red flag” because it was not unusual for inmates not to

come out in the morning because they want to sleep. Steele

testified that when an inmate skips meals he would “keep a

closer eye on him,” and stated:

[A]fter speaking with [Clouthier] all weekend he

explained his reasons to me . . . . He told me he

wasn’t hungry. He told me he was trying — he just

wanted to catch up on his sleep, and he was okay. So

after talking with him the whole weekend, it wasn’t

the general red flag. If he refused to talk to me or

something like that, that might — that would make

me think differently than I was about him.

Steele testified further that:

CLOUTHIER v. COUNTY OF CONTRA COSTA 1127

I’d been talking to Mr. Clouthier throughout the

weekend, seeing how he’s doing, where his head was

at, talked to him about what he was going to do once

he got out of the observation room and what could

help him progress. And after that, I was just looking

for inmates that would be able to help him through

that.

...

[H]e was off an observation log, so to me that tells

me that he’s not a danger to himself. He had been

talking to me during the week. He expressed wanting

to come out for recreation with the other inmates,

which he had opportunity to come out. Yeah, he had

a positive outlook on wanting to come out, waiting

to just get out of the room and get more mobile and

get more interaction, yes.

Captain David Pascoe, the Deputy Supervisor, testified

that, based on the Sheriff’s Department’s training, he would

expect a deputy to ask Mental Health to evaluate an inmate

that was skipping meals and free time. Steele did not inform

Mental Health of the Red Book entries.

Sometime between 12:00 a.m. and 6:30 a.m. on August 1,

Steele received a call from Sergeant Yates, who stated that he

needed Observation Room 7. Steele called Mental Health Ser-

vices to ask whether Clouthier should be moved, but no one

answered because Mental Health staff do not work the grave-

yard shift. Steele testified that he had been looking for an

appropriate roommate for Clouthier before the phone call and

that, because Clouthier “was off an observation log . . . he’s

not a danger to himself.” Steele then moved Clouthier into the

M-Module general population and placed him in a cell with

inmate Marc Watkins.

Foley reported back for duty the afternoon of August 1. He

testified that he had no reason to question Clouthier’s transfer

1128 CLOUTHIER v. COUNTY OF CONTRA COSTA

from Observation Room 7 into the general population.

According to Watkins, after dinner that evening, Clouthier sat

on his bunk and tied his sheet into a knot on one end. At 7:15

p.m., Foley went to Clouthier’s cell to let Watkins out for rec-

reational time. Foley told Clouthier that he could not come

out right then, but that Foley would return to take him out.

Watkins testified that, “when [Watkins] left the room [he] saw

the sheet, still knotted, sitting on the edge of the bed, hanging

over slightly. Dep[uty] Foley didn’t say anything about the

sheet, but he sure should have been able to see it.” Foley testi-

fied that he did not see the knotted sheet, but rather that he

saw Clouthier “lying on his bunk, with the sheets pulled

around him. This is the way many if not most inmates spend

a great deal of their time in the cells on M-Module.”

Roughly thirty minutes later, at 7:42 p.m., Foley and a

nurse went to Clouthier’s cell. They discovered him hanging

by the neck from the knotted sheet. Foley administered CPR,

and Clouthier was taken to the County Hospital. After being

removed from life support ten days later, Clouthier died.

Clouthier’s parents filed suit under 42 U.S.C. § 1983

against Blush, Steele, Foley, and the County. The Clouthiers

alleged that the individual defendants violated Clouthier’s

constitutional right to due process under the Fourteenth

Amendment due to the officials’ deliberate indifference to

Clouthier’s serious medical needs. They also alleged that

Clouthier’s death was caused by the County’s established pol-

icies, its failure to train employees, and its ratification of the

officials’ illegal actions. After discovery, the defendants

moved for summary judgment, which the district court

granted on the merits as to each defendant. This timely appeal

followed.

II

Summary judgment is reviewed de novo. Olsen v. Idaho

State Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004). We

CLOUTHIER v. COUNTY OF CONTRA COSTA 1129

must determine whether there are any genuine issues of mate-

rial fact and whether the district court correctly applied the

relevant substantive law. Id.

“Although the district court did not reach the issue of quali-

fied immunity we may do so where it is clear from the record

before us.” Humphries v. County of Los Angeles, 554 F.3d

1170, 1201 (9th Cir. 2009). “The doctrine of qualified immu-

nity protects government officials from liability for civil dam-

ages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a rea-

sonable person would have known.” Pearson v. Callahan,

129 S. Ct. 808, 815 (2009) (quoting Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982) (internal quotation marks omitted)). In

considering a claim of qualified immunity, the court must

determine “whether the facts that a plaintiff has alleged . . .

make out a violation of a constitutional right,” and “whether

the right at issue was ‘clearly established’ at the time of

defendant’s alleged misconduct.” Id. at 816. Whether a right

is clearly established turns on the “objective legal reasonable-

ness of the action, assessed in light of the legal rules that were

clearly established at the time it was taken.” Id. at 822 (quot-

ing Wilson v. Layne, 526 U.S. 603, 614 (1999)).

On appeal, the Clouthiers raise three arguments. First, they

claim that the district court made a legal error by applying the

“deliberate indifference” test articulated by the Supreme

Court in Farmer v. Brennan, 511 U.S. 825 (1994). Second,

they argue that even if the deliberate indifference test is appli-

cable here, there was a genuine issue of material fact as to

whether the individual defendants were liable under that test.

Further, the Clouthiers argue that Robert Clouthier’s rights in

this context were clearly established, so the individual defen-

dants were not entitled to summary judgment on the ground

of qualified immunity. Finally, they argue that the district

court erred in concluding that the Clouthiers had not estab-

lished a genuine issue of material fact as to the County’s lia-

1130 CLOUTHIER v. COUNTY OF CONTRA COSTA

bility on account of its deficient polices. We consider these

issues in turn.

III

We first consider the Clouthiers’ argument that the district

court erred in holding that liability could be imposed on the

individual defendants only if they had a “ ‘deliberate indiffer-

ence’ to inmate health or safety.” Farmer, 511 U.S. at 834

(quoting Wilson, 501 U.S. at 302-03).

[1] We have long analyzed claims that correction facility

officials violated pretrial detainees’ constitutional rights by

failing to address their medical needs (including suicide pre-

vention) under a “deliberate indifference” standard. See, e.g.,

Lolli v. County of Orange, 351 F.3d 410, 418-19 (9th Cir.

2003) (applying the “deliberate indifference” standard to a

diabetic pretrial detainee’s claims of failure to provide care

for serious medical needs); Gibson v. County of Washoe, 290

F.3d 1175, 1188 & n.9 (9th Cir. 2002) (applying the “deliber-

ate indifference” standard to the claims of a mentally ill pre-

trial detainee who died in custody); Cabrales v. County of Los

Angeles, 864 F.2d 1454, 1461 & n. 2 (9th Cir. 1988) (apply-

ing the “deliberate indifference” standard to a § 1983 claim by

the mother of a pretrial detainee who committed suicide in

detention, and explaining that “the fourteenth amendment due

process rights of pretrial detainees are analogized to those of

prisoners under the eighth amendment”), vacated on other

grounds, 490 U.S. 1087 (1989), opinion reinstated, 886 F.2d

235 (9th Cir. 1989).

[2] This approach is grounded in Supreme Court precedent.

In Bell v. Wolfish, the Supreme Court held that pretrial detain-

ees had a due process right not to be punished. 441 U.S. 520,

535 & n.16 (1979). The Court explained that, “what is at issue

when an aspect of pretrial detention that is not alleged to vio-

late any express guarantee of the Constitution is challenged,

is the detainee’s right to be free from punishment . . . .” Id.

CLOUTHIER v. COUNTY OF CONTRA COSTA 1131

at 534 (emphasis in original); see id. at 535 (“In evaluating

the constitutionality of conditions or restrictions of pretrial

detention that implicate only the protection against depriva-

tion of liberty without due process of law, we think that the

proper inquiry is whether those conditions amount to punish-

ment of the detainee.”). The key question “in determining

whether particular restrictions and conditions accompanying

pretrial detention amount to punishment in the constitutional

sense of that word,” is whether the restrictions evince a puni-

tive purpose or intent. Id. at 538-39.

The Supreme Court has explained the meaning of “punitive

intent” in the context of its Eighth Amendment jurisprudence.

For a prisoner to establish “cruel and unusual punishment,” he

must show both an objective component, addressing whether

a deprivation was sufficiently serious to be “cruel and unusu-

al,” and a subjective component, addressing whether correc-

tion facility officials acted with “a sufficiently culpable state

of mind,” so that the condition of confinement may be

deemed to be “punishment.” Wilson v. Seiter, 501 U.S. 294,

298 (1991). With respect to the second component, the Court

explained, “[i]f the pain inflicted is not formally meted out as

punishment by the statute or the sentencing judge, some men-

tal element must be attributed to the inflicting officer before

it can qualify” as punitive. Id. at 300 (emphasis in original).

In cases claiming an Eighth Amendment violation “based

on a failure to prevent harm,” the first, objective component

is met if the inmate shows that “he is incarcerated under con-

ditions posing a substantial risk of serious harm.” Farmer,

511 U.S. at 834. The second component, punitive intent, is

met if the claimant shows that the detention facility official’s

“state of mind is one of ‘deliberate indifference’ to inmate

health or safety.” Id. This is a subjective test in that “the offi-

cial must both be aware of facts from which the inference

could be drawn that a substantial risk of serious harm exists,

and he must also draw the inference.” Id. at 837. “[A]n offi-

cial’s failure to alleviate a significant risk that he should have

1132 CLOUTHIER v. COUNTY OF CONTRA COSTA

perceived but did not, while no cause for commendation, can-

not under our cases be condemned as the infliction of punish-

ment.” Id. at 838; see also Gibson, 290 F.3d at 1188 (“If a

person should have been aware of the risk, but was not, then

the person has not violated the Eighth Amendment, no matter

how severe the risk.” (citing Jeffers v. Gomez, 267 F.3d 895,

914 (9th Cir. 2001))).

[3] In light of the Supreme Court’s rulings that conditions

of confinement violate pretrial detainees’ Fourteenth Amend-

ment rights if the conditions amount to punishment, Bell, 441

U.S. at 535, and that failure to prevent harm amounts to pun-

ishment where detention officials are deliberately indifferent,

Farmer, 511 U.S. at 834, we have concluded that the “deliber-

ate indifference” standard applies to claims that correction

facility officials failed to address the medical needs of pretrial

detainees. See, e.g., Lolli, 351 F.3d at 418-19; Gibson, 290

F.3d at 1188 n.9; Cabrales, 864 F.2d at 1461 & n.2. Although

we have noted that the Eighth Amendment may provide “a

minimum standard of care” for determining the rights of pre-

trial detainees, Or. Advocacy Ctr. v. Mink, 322 F.3d 1101,

1120 (9th Cir. 2003), neither we nor the Supreme Court have

departed from the standard set forth in Bell and Farmer for

considering pretrial detainees’ claims that government offi-

cials violated their Fourteenth Amendment rights by failing to

prevent harm. See, e.g., Frost v. Agnos, 152 F.3d 1124, 1128

(9th Cir. 1998) (“Because pretrial detainees’ rights under the

Fourteenth Amendment are comparable to prisoners’ rights

under the Eighth Amendment . . . we apply the same stan-

dards.”).

[4] In this case, Clouthier was a pretrial detainee confined

at MDF in connection with battery and vandalism charges.

Accordingly, under Bell and our cases, we must consider

whether Clouthier was subjected to punishment. This requires

us to inquire into the subjective component of punishment,

that is, whether Foley, Steele, or Blush acted with deliberate

indifference as defined in Farmer and our cases.

CLOUTHIER v. COUNTY OF CONTRA COSTA 1133

The Clouthiers argue, however, that the deliberate indiffer-

ence standard is not applicable here. Relying on Mink and

Jones v. Blanas, 393 F.3d 918 (9th Cir. 2004), the Clouthiers

contend that mentally ill pretrial detainees are entitled to

greater protection under the Fourteenth Amendment. The

Clouthiers invite us to adapt the standard suggested by Young-

berg v. Romeo, 457 U.S. 307 (1982), and hold that mentally

ill detainees have a constitutional right to mental health care

that does not substantially depart from accepted professional

judgment, practice, or standards. Under such a standard, the

Clouthiers could prosecute their § 1983 action without carry-

ing the burden of showing that the individual defendants sub-

jectively acted with deliberate indifference to a substantial

risk of serious harm to Clouthier.

[5] We must decline this invitation. The cases cited by the

Clouthiers considered the substantive due process rights of

individuals detained by the state for the purpose of addressing

issues associated with their mental incapacity; they do not

address the liberty interests of pretrial detainees who are con-

fined to ensure their presence at trial, as in Bell. In Young-

berg, the Court held that a profoundly mentally retarded man

who had been civilly committed to a state mental institution

had a liberty interest in “reasonable conditions of safety and

freedom from unreasonable restraints.” 457 U.S. at 321. Bal-

ancing such liberty interests against the state’s legitimate

interests in managing the institution, the Court held that the

patient’s interests would be adequately protected if the state

addressed them in a reasonable manner as determined by a

professional decision maker. Id. at 322-23. The Court did not

suggest that such rights were applicable to pretrial detainees.

Rather, it cited Bell with approval, noting it had similarly bal-

anced a pretrial detainee’s liberty interest against the state’s

interest and the Court there had “upheld those restrictions on

liberty that were reasonably related to legitimate government

objectives and not tantamount to punishment.” Id. at 320.

Nor are subsequent Ninth Circuit cases weighing the liberty

interests of mentally incapacitated plaintiffs against the legiti-

1134 CLOUTHIER v. COUNTY OF CONTRA COSTA

mate interests of the state applicable in this context. See Mink,

322 F.3d 1101, Jones, 393 F.3d 918. In Mink, for example, a

state law required criminal defendants who were declared

mentally incapacitated and unable to stand trial to be commit-

ted to a state mental hospital for the purposes of evaluation,

treatment, and restoration. Id. at 1106. We held that the state

mental hospital violated those defendants’ constitutional

rights by not accepting their transfer from county jails on a

timely basis. Id. at 1121. We determined that there was no

“legitimate state interest in keeping mentally incapacitated

criminal defendants locked up in county jails for weeks or

months,” and in fact the state hospital’s delay “undermine[d]

the state’s fundamental interest in bringing the accused to

trial.” Id. In Jones, we held that an individual detained await-

ing civil commitment proceedings was, at a minimum, enti-

tled to the rights of a civilly committed mentally retarded

person in Youngberg and a pretrial detainee in Bell. Jones,

393 F.3d at 932. Accordingly, we ruled that holding a civil

detainee under conditions similar to or more restrictive than

the conditions imposed on a criminal detainee constituted

“punishment,” and therefore violated the civil detainees’

Fourteenth Amendment rights. Id.

In sum, the cases cited by the Clouthiers involve plaintiffs

who were differently situated and who enjoyed different

rights from the plaintiffs considered in Bell. Moreover, these

cases involved distinct state interests. Because none of these

cases signal a departure from Bell, we do not consider them

persuasive here. Accordingly, we must evaluate the Clou-

thiers’ claim that Blush, Steele, and Foley violated Clouthier’s

due process rights under the deliberate indifference standard

articulated in Farmer and applied by our cases in the context

of pretrial detainees.

IV

Even under the deliberate indifference standard, however,

the Clouthiers argue that Blush, Steele, and Foley are not enti-

CLOUTHIER v. COUNTY OF CONTRA COSTA 1135

tled to summary judgment. To defeat a motion for summary

judgment by the individual defendants, the Clouthiers must

show a genuine issue of material fact as to both prongs of the

deliberate indifference test: (1) whether Clouthier was con-

fined under conditions posing a “substantial risk of serious

harm” and (2) whether the officers were deliberately indiffer-

ent to that risk. Lolli, 351 F.3d at 420. Here, defendants do not

contest that the conditions of Clouthier’s confinement posed

“a substantial risk of serious harm.” Id. at 420. Rather, they

dispute whether the Clouthiers presented “evidence from

which a reasonable jury could conclude that any of the indi-

vidual officers knew of and were deliberately indifferent to

this substantial risk of serious harm.” Id. at 420. We examine,

in turn, the Clouthiers’ claims against Blush, Steele, and

Foley. We view the evidence in the light most favorable to the

non-moving party. See Olsen, 363 F.3d at 922. In order to

ensure that our examination of Clouthier’s claims against each

defendant rests on a resolution of the facts most favorable to

the Clouthiers, the analysis below must occasionally resolve

factual disputes regarding the same incident in different ways.

A

[6] Viewing the evidence in the light most favorable to the

Clouthiers, a rational jury could conclude that Blush was “on

notice” of Clouthier’s suicidal condition and that she actually

“inferred from this information that [Clouthier] was at serious

risk of harm if he did not receive” proper care. Lolli, 351 F.3d

at 420. Blush was given a copy of Hanaway’s notes, which

reflected that Clouthier had told Hanaway he was suicidal and

that he had previously attempted suicide. The notes also stated

that Clouthier was put in a suicide smock, was to be “con-

stantly monitored throughout the day to ensure his safety,”

and that Mental Health would gather more of his history.

Hanaway also personally informed Blush that she thought

Clouthier was truly suicidal, that he was going to try to kill

himself, and that he was the “real deal.” Hanaway emphasized

that Clouthier “had been very suicidal throughout the day and

1136 CLOUTHIER v. COUNTY OF CONTRA COSTA

that [Hanaway] felt that he needed to be in the observation

room and that he needed to be observed and [Blush] needed

to look in on him.”

[7] In addition to Hanaway’s notes and personal warnings,

which give rise to the inference that Clouthier faced a sub-

stantial risk of serious harm, the Clouthiers adduced evidence

that Blush actually inferred that Clouthier was suicidal. After

meeting with Clouthier for “[l]ess than five minutes,” Blush

told Foley that Clouthier should not have access to utensils or

other objects because she “felt it was best that some limita-

tions be placed on his access to anything.” Blush also agreed

that Clouthier was not “out of the woods” yet and that his

condition could “go either way.” She testified she was “uncer-

tain” whether his suicidality had disappeared. Yet, Blush

removed Clouthier from the Observation Log, told the depu-

ties he could be given regular clothes and regular bedding,

failed to instruct Foley to keep Clouthier in the Observation

Room,2 and neglected to determine if additional care was

needed. From this circumstantial evidence, a jury could rea-

sonably infer that Blush knew of Clouthier’s depressive, sui-

cidal condition and need for mental health treatment, and

“also knew of the risk of harm that he faced if denied medical

attention.” Lolli, 351 F.3d at 421; see also Farmer, 511 U.S.

at 843 n.8 (“While the obviousness of a risk is not conclusive

and a prison official may show that the obvious escaped him,

. . . he would not escape liability if the evidence showed that

he merely refused to verify underlying facts that he strongly

suspected to be true, or declined to confirm inferences of risk

that he strongly suspected to exist . . . .”). Accordingly,

resolving factual disputes in favor of the Clouthiers, “the cir-

cumstances suggest that [Blush] had been exposed to informa-

tion concerning the risk and thus ‘must have known’ about it

. . . .” Farmer, 511 U.S. at 842. Therefore, there exists a genu-

2

Blush claims she did instruct Foley to keep Clouthier in the Observa-

tion Room.

CLOUTHIER v. COUNTY OF CONTRA COSTA 1137

ine issue of material fact as to whether Blush was deliberately

indifferent to a substantial risk of harm to Clouthier.3

In light of this conclusion, we must consider whether Blush

is entitled to qualified immunity. This inquiry involves the

question whether “the law governing [Blush’s] conduct was

clearly established” and whether “a reasonable state official

[could] have believed [Blush’s] conduct was lawful.” Estate

of Ford v. Ramirez-Palmer, 301 F.3d 1043, 1050 (9th Cir.

2002). Blush argues that Clouthier’s constitutional rights in

this context were not clearly established at the time of Blush’s

alleged misconduct. According to Blush, although it was clear

in 2005 that pre-trial detainees had a right to mental health

care, the contours of that right were vague at that time, and

she was not on notice that her conduct was unlawful.

[8] We disagree. In 1988, we affirmed a jury verdict impos-

ing § 1983 liability on a municipality and its official policy-

maker for deliberate indifference to a pretrial detainee’s

mental health needs that resulted in the detainee’s suicide. See

Cabrales, 864 F.2d at 1461 & n.2; see also Gibson, 290 F.3d

at 1196, 1187 (evaluating individual deputies’ liability under

the deliberate indifference standard where pretrial detainee

alleged insufficient medical care). Blush, a mental health spe-

cialist, was tasked with caring for a pretrial detainee who had

recently expressed suicidal intent and whose suicidality had

been described to her by a fellow mental health professional

as “the real deal.” In light of her understanding that Clouthier

was not “out of the woods” yet, and in light of the clearly

established law at the time, a reasonable mental health profes-

sional could not have thought it was lawful to remove key sui-

3

The district court did not reach the issue of causation, and neither of

the parties briefed the issue. See White v. Roper, 901 F.2d 1501, 1505 (9th

Cir. 1990) (to prevail on a § 1983 claim under a deliberate indifference

theory, plaintiff must prove that the official’s actions were both the actual

and proximate cause of plaintiff’s injuries). Accordingly, we do not reach

this issue here.

1138 CLOUTHIER v. COUNTY OF CONTRA COSTA

cide prevention measures put in place by a prior Mental

Health staff member. Accordingly, taking the evidence in the

light most favorable to the Clouthiers, Blush is not entitled to

qualified immunity.

B

[9] As to Steele, we conclude that the Clouthiers’ evidence

is insufficient to allow a reasonable jury to conclude that

Steele knew Clouthier was subject to a substantial risk of seri-

ous harm when he moved him to the general population. The

Clouthiers argue that a jury could find that Steele must have

known of the risk to Clouthier “from the very fact that the risk

was obvious.” They point out that, on July 31, Steele knew

that Clouthier had recently refused to eat both lunch and din-

ner, and had refused to partake in free time. Further, the Clou-

thiers note that Steele had been trained to recognize the signs

of at-risk detainees by looking for individuals illustrating sub-

tle signs of self-destructive intent, such as loss of appetite or

withdrawal.

[10] The Clouthiers’ argument is unavailing. Here, the evi-

dence, comprised of the Red Book entries and Steele’s prior

training, does not create an inference that the substantial risk

of serious harm to Clouthier was so obvious that Steele “must

have known” of it. Unlike Blush, who was personally

informed of Clouthier’s suicidal proclivities, Steele knew only

that the Red Book entries noted Clouthier’s missed meals and

free time. Steele testified that when he reported to work on

July 28, “[t]hey explained to me that earlier in the week

[Clouthier] was placed in there for being a danger to himself,

and since then was taken off the observation log and had . . .

yet to be moved out of there.” As to the Red Book entries,

Steele noted that, when an inmate skips meals, he would

“need to keep a closer eye on him,” and indeed Steele fol-

lowed up with Clouthier, “speaking with him all weekend.”

After inquiring multiple times into Clouthier’s status, Steele

noted that Clouthier “had a positive outlook on wanting to

CLOUTHIER v. COUNTY OF CONTRA COSTA 1139

come out, waiting to just get out of the room.” Moreover,

Brown, the mental health specialist who evaluated Clouthier

hours before Steele first came on duty, testified that while

Clouthier looked “acute,” “fatigued, somewhat shell-

shocked,” he also appeared to be “calm” and “emotionally

drained,” as if he “needed rest more than anything,” and her

clinical evaluation was that “he was not actively suicidal at

the time,” although he “would benefit from additional time in

the observation room.” There is no evidence that Brown com-

municated her observations to Steele, or that he saw any notes

indicating Clouthier was acting strangely. Moreover, given

Brown’s evaluation, there is no basis for concluding that it

was obvious that Clouthier was suicidal. Instead, on July 31,

neither Steele nor another deputy “had a firm understanding

of why” Clouthier was still in the Observation Room. Accord-

ingly, the circumstantial evidence is too limited for a reason-

able factfinder to “conclude that [Steele] knew of a substantial

risk from the very fact that the risk was obvious.”4 Farmer,

511 U.S. at 842.

[11] In the absence of a risk so “obvious” that Steele must

have drawn an impermissible inference, the Clouthiers were

required to adduce evidence that raised a genuine issue of

4

In Conn v. City of Reno, 572 F.3d 1047 (9th Cir. 2009), we reversed

a district court’s grant of summary judgment in favor of two officers,

because there was “sufficient circumstantial evidence to create a genuine

issue of fact regarding defendants’ subjective awareness” of a serious

medical need. Id. at 1057. In that case, the two officers were transporting

a detainee when they observed the detainee wrap a seatbelt around her

neck and scream that she would kill herself. The officers neglected to

report the incident, because they interpreted it as a “belligerent” and “un-

cooperative” attempt “to manipulate the situation.” Id. at 1052. We held

that a “reasonable jury could conclude that the officers’ knowledge of [the

detainee’s] mental and emotional instability, coupled with their observa-

tion of her dangerous behavior, in fact produced a subjective awareness.”

Id. at 1057. Here, in contrast, the Clouthiers adduced no evidence showing

Steele observed suicidal actions, heard statements of a suicidal nature, or

witnessed other evidence of Clouthier’s suicidal intent of the obvious kind

exhibited in Conn.

1140 CLOUTHIER v. COUNTY OF CONTRA COSTA

material fact demonstrating Steele was subjectively aware of

the risk to Clouthier. Because the Clouthiers did not do so, the

evidence was insufficient to allow a jury to conclude “that

[Steele’s] conduct violated a constitutional right,” Estate of

Ford, 301 F.3d at 1050, and summary judgment in Steele’s

favor was therefore proper.

C

[12] As to Foley, the evidence adduced by the Clouthiers

is insufficient to allow a jury to conclude that Foley knew

Clouthier was suicidal and deliberately ignored that risk. The

Clouthiers argue that Foley knew of the risk facing Clouthier

because he had initially been informed by Hanaway of Clou-

thier’s suicidality and had been told by Blush to continue cer-

tain restrictions on Clouthier. Moreover, the Clouthiers claim

that Foley saw the knotted sheet in Clouthier’s cell. Given

Foley’s knowledge that Clouthier was suicidal, the Clouthiers

argue that Foley deliberately failed to take steps to address the

risk.

We again must disagree. The record does not include suffi-

cient direct or circumstantial evidence to create a genuine

issue of material fact as to whether Foley was subjectively

aware of a substantial risk of harm to Clouthier and that he

deliberately ignored that risk.

[13] Foley had two different encounters with Clouthier.

The first occurred during the period from July 27, when

Hanaway transferred Clouthier to the M-Module, until July

28, when Foley’s shift ended. There is no evidence that Foley

was subjectively aware that Clouthier was actively suicidal at

the time Foley left his shift. Foley’s information about Clou-

thier’s condition was limited. At the time Hanaway trans-

ferred Clouthier, she told Foley that Clouthier was suicidal,

had “numerous prior attempts” at suicide, and needed to be on

15-minute checks. But Foley had no other information regard-

ing Clouthier’s mental state; Foley did not have access to

CLOUTHIER v. COUNTY OF CONTRA COSTA 1141

Hanaway’s notes or to Clouthier’s medical chart, and he had

not seen Clouthier’s health questionnaire detailing his mental

health history. When Blush took Clouthier off the Observa-

tion Log, she told Foley to give Clouthier his regular clothes

and bedding but not utensils or personal hygiene items, and

instructed Foley to keep Clouthier in the Observation Room.5

There is no evidence that Blush shared her perceptions of

Clouthier’s mental state with Foley. To Foley, Clouthier’s

removal from the Observation Log meant he could be moved

out of an Observation Room and into M-Module’s general

population. In Foley’s experience, inmates having extremely

serious mental health issues would be transferred to the Coun-

ty’s Psychiatric Emergency Services.

Nor does the evidence indicate that Foley’s understanding

of Clouthier’s situation was willful ignorance of the obvious:

Blush testified that she took Clouthier off the Observation

Log because she believed the risk that Clouthier would com-

mit suicide had decreased, although she was uncertain

whether it had disappeared. On July 29, Brown visited Clou-

thier in the Observation Room and determined, based on her

37 years of clinical experience, that Clouthier was not actively

suicidal.

[14] Although Foley did not note Blush’s instructions to

keep Clouthier in the Observation Room in the Red Book or

communicate these instructions to other deputies, Foley’s

behavior towards Clouthier was not otherwise indicative of

deliberate indifference. Foley followed Hanaway’s instruc-

tions to check on Clouthier every 15 minutes until Blush

released Clouthier from the Observation Log. Moreover,

Foley complied with Blush’s instructions to keep Clouthier in

the Observation Room; indeed, Clouthier did not leave that

room until four days after Foley’s shift ended.

5

As noted earlier, Foley testified that he did not receive this instruction.

1142 CLOUTHIER v. COUNTY OF CONTRA COSTA

[15] Under these facts, there is insufficient evidence to

establish that Foley was subjectively aware that his failure to

communicate Blush’s instructions to other deputies consti-

tuted a substantial risk of serious harm to Clouthier, and

deliberately ignored that risk. See Farmer, 511 U.S. at 844

(“Because . . . prison officials who lacked knowledge of a risk

cannot be said to have inflicted punishment, it remains open

to the officials to prove that they were unaware even of an

obvious risk to inmate health or safety . . . . Prison officials

charged with deliberate indifference might show, for example,

that they did not know of the underlying facts indicating a

sufficiently substantial danger and that they were therefore

unaware of a danger, or that they knew the underlying facts

but believed (albeit unsoundly) that the risk to which the facts

gave rise was insubstantial or nonexistent.”).6 Although

Foley’s failure to communicate Blush’s instructions may have

been negligent, in the absence of evidence that Foley knew

Clouthier was in substantial danger, it cannot be said that

Foley acted with deliberate indifference. Id. at 835

(“[D]eliberate indifference describes a state of mind more

blameworthy than negligence.”).7

6

The dissent argues that whether Foley deliberately ignored a substan-

tial risk of harm to Clouthier is a question that should be decided by a jury.

Dissent at 1154. We disagree. Even if a jury could reasonably conclude

that Blush’s instruction “communicated to Foley that Clouthier still posed

a substantial risk of serious harm to himself,” Dissent at 1154, it does not

follow that a jury also could conclude that Foley showed deliberate indif-

ference to this risk. Rather, Foley acted reasonably under the circum-

stances by following Blush’s instructions and keeping Clouthier in the

Observation Room (where he remained for three more days). See Farmer,

511 U.S. at 844 (“[P]rison officials who actually knew of a substantial risk

to inmate health or safety may be found free from liability if they

responded reasonably to the risk, even if the harm ultimately was not

averted. A prison official’s duty . . . is to ensure ‘reasonable safety’ ”

(quotation marks omitted)).

7

The dissent “fail[s] to understand why we should rule as a matter of

law that Foley’s failure to pass that information on to subsequent shifts

was mere negligence.” Dissent at 1155. The answer lies in Farmer’s pro-

nouncement that “an official’s failure to alleviate a significant risk that he

CLOUTHIER v. COUNTY OF CONTRA COSTA 1143

When Foley returned on August 1, Clouthier had been

moved into M-Module’s general population. On this second

shift, Foley “noted nothing unusual” and “saw nothing in

[Clouthier’s] behavior or in his record that [would] lead

[Foley] to believe that [Clouthier] was at risk for suicide.”

The Clouthiers adduced testimony from Clouthier’s cell mate,

Watkins, that when Foley took Watkins out for free time on

August 1, Foley “sure should have been able” to see the knot-

ted sheet hanging over the edge of Clouthier’s bed. But Wat-

kins did not allege that Foley had in fact seen the knotted

sheet, and the Clouthiers adduced no evidence to that effect.8

Foley’s testimony that he did not see the knotted sheet is

therefore undisputed. Again, there is insufficient circumstan-

tial evidence that Foley was subjectively aware of a substan-

tial risk of harm to Clouthier and deliberately ignored it. See

Gibson, 290 F.3d at 1188. Because “the record taken as a

whole could not lead a rational trier of fact to find for” the

Clouthiers, Ricci v. DeStefano, 129 S. Ct. 2658, 2677 (2009)

(quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 587 (1986)), summary judgment in favor of

Foley was proper.

V

We next turn to the Clouthiers’ argument that the district

court erred in granting summary judgment in favor of the

County. Although the Clouthiers frame their argument in dif-

ferent ways, their claim amounts to the assertion that the

should have perceived but did not, while no cause for commendation, can-

not under our cases be condemned as the infliction of punishment.” 511

U.S. at 838. Here the record provided no evidence of Foley’s subjective

awareness that failure to pass on Blush’s instruction created a substantial

risk of harm. Even if Foley should have perceived this risk, his failure to

do so does not rise to “the infliction of punishment.” Id.

8

Nor was this a situation like that which took place in Conn, where there

were “warning signs that [would be] difficult for any observer to miss.”

Conn, 572 F.3d at 1057.

1144 CLOUTHIER v. COUNTY OF CONTRA COSTA

County’s procedures for dealing with mentally ill detainees

were deficient, that the County knew of these deficiencies,

and that the County’s deliberate indifference to these deficien-

cies resulted in their son’s death.

We first examine the legal framework for this claim. The

Clouthiers may recover from the County under § 1983 for

failure to prevent harm to Clouthier under one of three theo-

ries of municipal liability. First, a local government may be

held liable “when implementation of its official policies or

established customs inflicts the constitutional injury.” Monell

v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 708

(1978) (Powell, J. concurring); see also Price v. Sery, 513

F.3d 962, 966 (9th Cir. 2008) (stating that plaintiffs may “es-

tablish municipal liability by demonstrating that . . . the con-

stitutional tort was the result of a longstanding practice or

custom which constitutes the standard operating procedure of

the local government entity” (internal quotation marks omit-

ted)). We have referred to these sorts of local government

conduct as acts of “commission.” Cabrales, 864 F.2d at 1461.

Second, under certain circumstances, a local government

may be held liable under § 1983 for acts of “omission,” when

such omissions amount to the local government’s own official

policy. Id. (“[A]cts of omission, as well as commission, may

constitute the predicate for a finding of liability under section

1983.”). To impose liability on a local government for failure

to adequately train its employees, the government’s omission

must amount to “deliberate indifference” to a constitutional

right. This standard is met when “the need for more or differ-

ent training is so obvious, and the inadequacy so likely to

result in the violation of constitutional rights, that the policy-

makers of the city can reasonably be said to have been delib-

erately indifferent to the need.” City of Canton v. Harris, 489

U.S. 378, 390 (1989). For example, if police activities in

arresting fleeing felons “so often violate constitutional rights

that the need for further training must have been plainly obvi-

CLOUTHIER v. COUNTY OF CONTRA COSTA 1145

ous to the city policymakers,” then the city’s failure to train

may constitute “deliberate indifference.” Id. at 390 n.10.9

“Only where a failure to train reflects a ‘deliberate’ or ‘con-

scious’ choice by a municipality—a ‘policy’ as defined by our

prior cases—can a city be liable for such a failure under

§ 1983.” Id. at 389. And only under such circumstances does

the failure to train constitute “a policy for which the city is

responsible, and for which the city may be held liable if it

actually causes injury.” Id. at 390. Although this is a high

standard, the Supreme Court warned against diluting the

requirement that a local government can be held liable only

for an action or inaction that amounts to an official policy:

In virtually every instance where a person has had

his or her constitutional rights violated by a city

employee, a § 1983 plaintiff will be able to point to

something the city “could have done” to prevent the

unfortunate incident. Thus, permitting cases against

cities for their “failure to train” employees to go for-

ward under § 1983 on a lesser standard of fault

would result in de facto respondeat superior liability

on municipalities—a result we rejected in Monell. It

would also engage the federal courts in an endless

exercise of second-guessing municipal employee-

training programs. This is an exercise we believe the

federal courts are ill suited to undertake, as well as

one that would implicate serious questions of feder-

alism.

9

The “deliberate indifference” standard for municipal liability set forth

in Canton is different from the subjective “deliberate indifference” stan-

dard set forth in Farmer. As explained in Farmer, the “Canton under-

standing of deliberate indifference, permitting liability to be premised on

obviousness or constructive notice,” is an objective standard; however,

such an objective standard “is not an appropriate test for determining the

liability of prison officials.” Farmer, 511 U.S. at 841.

1146 CLOUTHIER v. COUNTY OF CONTRA COSTA

Canton, 489 U.S. at 392 (internal citations omitted).

[16] Third, a local government may be held liable under

§ 1983 when “the individual who committed the constitu-

tional tort was an official with final policy-making authority”

or such an official “ratified a subordinate’s unconstitutional

decision or action and the basis for it.” Gillette v. Delmore,

979 F.2d 1342, 1346-47 (9th Cir. 1992) (internal quotation

marks and citations omitted); see also City of St. Louis v. Pra-

protnik, 485 U.S. 112, 123-24, 127 (1988); Pembaur v. City

of Cincinnati, 475 U.S. 469, 480-81 (1986). “If the authorized

policymakers approve a subordinate’s decision and the basis

for it, their ratification would be chargeable to the municipal-

ity because their decision is final.” Praprotnik, 485 U.S. at

127 (1988). “There must, however, be evidence of a con-

scious, affirmative choice” on the part of the authorized poli-

cymaker. Gillette, 979 F.2d at 1347. A local government can

be held liable under § 1983 “only where ‘a deliberate choice

to follow a course of action is made from among various

alternatives by the official or officials responsible for estab-

lishing final policy with respect to the subject matter in ques-

tion.’ ” Id. (quoting Pembaur, 475 U.S. at 483-84 (plurality

opinion)).

The Clouthiers identify two principal deficiencies in the

County’s procedures. First, they allege that the custodial staff

did not comply with the County’s written policy requiring

mental health staff approval for moving a detainee into the

general population. Compounding this problem, the Clou-

thiers allege, was an inadequate system of communication

between mental health staff and custodial staff regarding

when a detainee could be moved from an observation cell.

Second, the Clouthiers allege that the County’s jail was

understaffed, resulting in mental health staff failing to observe

mentally ill detainees with sufficient frequency to ensure their

safety. The Clouthiers make the additional argument that the

County ratified the constitutional violations of its employees.

CLOUTHIER v. COUNTY OF CONTRA COSTA 1147

A

[17] To evaluate the claim that County employees did not

rigorously implement the policy governing movement of an

inmate out of an observation cell into the general population,

we must begin with the policy itself. The County’s written

policy, Sheriff’s Policy 13.10(II)(B) states, in pertinent part:

2) If the inmate is not referred to the In-Patient Psy-

chiatric Unit by medical staff, one of three alterna-

tive actions will be employed . . . .

a. Open observation

...

If Mental Health staff determines the inmate can be

housed with other inmates, the inmate may be

housed at MDF or WCDF and shall be based on

Mental Health staff’s recommendation.

...

Deputies will report any changes in behavior to

Medical/Mental Health staff.

While this language does not expressly preclude deputies

from moving inmates into the general population without

mental health staff approval, the language suggests that depu-

ties would ordinarily obtain a recommendation from mental

health staff before making such a move.

Other evidence in the record indicates that an inmate is

moved into general population through a consultation

between mental health staff and custodial staff. Captain Pas-

coe testified that “movement of inmates on M Module is a

consultation between health services staff who’s [sic]

assigned there and the deputy . . . . If an officer had an indi-

1148 CLOUTHIER v. COUNTY OF CONTRA COSTA

vidual in one regular housing cell and wanted to move them

to another, they can facilitate that unless they have some indi-

cation that there would be a problem in doing so.” Similarly,

Kramer, the head of Detention Health Services, testified that,

when deputies are concerned about the directions they receive

from mental health staff, they must “get another opinion,”

“ask again the next day,” or otherwise follow “whatever is

within their procedures” in order to move the inmate. The

record indicates that Steele, the deputy who moved Clouthier

into the general population, believed that mental health staff

had approved the move. Viewing the evidence in the light

most favorable to the Clouthiers, this misapprehension was

caused by Foley’s failure to document Blush’s instructions,

Steele’s misunderstanding of the significance of removing an

inmate from the Observation Log in this case, and the

unavailability of mental health staff on the late shift.

[18] Drawing all inferences in favor of the Clouthiers, a

reasonable jury could conclude that the custodial and mental

health staff were deficient in their implementation of the

County’s written policy, because the custodial staff failed to

ensure they had the approval of mental health staff before

moving Clouthier. However, that does not create a triable

issue of fact on the question whether the County itself is liable

for this deficiency. There is no evidence that the County had

a longstanding custom or practice of moving detainees from

an observation cell into general population without consulta-

tion with mental health staff or contrary to their recommenda-

tions. Nor is there evidence of a longstanding custom or

practice of miscommunication between mental health staff

and custodial staff. There is no evidence that the County was

on actual or constructive notice that deficiencies in the imple-

mentation of its policy would likely result in a constitutional

violation.

Moreover, nothing in the record indicates that improper

transfers of suicidal inmates happened so frequently that the

need for corrective measures “must have been plainly obvious

CLOUTHIER v. COUNTY OF CONTRA COSTA 1149

to the city policymakers.” Canton, 489 U.S. at 390 n.10. In

fact, the evidence in the record indicates that between 2001

and 2006, out of more than 175,000 inmates processed at the

County’s Martinez Detention Facility, 158 suicide attempts

were discovered and only six inmates succeeded in commit-

ting suicide.10 The County’s expert testified that this suicide

rate is “far lower than the statewide average, and far lower

than the rate in jails in most counties with similar population

sizes.” Not only did the Clouthiers fail to adduce evidence of

a pattern of repeated tortious conduct by County staff, but

they also failed to adduce evidence of even a single other sui-

cide resulting from the improper transfer of an inmate from an

observation cell into the general population.

[19] The Clouthiers point to the affidavit of an expert, who

opined, based on a review of the incident, that the mental

health staff and custodial staff did not share their records and

“did not work together as a team.” The expert also stated there

was a “disconnect” between the mental health staff and the

custodial staff and noted “an inadequacy in training which

appears to be purposely indifferent to the mental health needs

of pre-trial detainees.” But such conclusory assertions are

insufficient to avoid summary judgment. Soremekun v. Thrifty

Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007) (“Conclusory,

speculative testimony in affidavits and moving papers is

insufficient to raise genuine issues of fact and defeat summary

judgment.”). Moreover, the factual basis for the expert’s dec-

laration is limited to the “sequence of events and the state-

ments of the participants” surrounding Clouthier’s transfer

into the general population. The expert’s report does not

address the key question whether the alleged “disconnect”

was so obvious and “the inadequacy so likely to result in the

violation of constitutional rights, that the policymakers of the

[local government] can reasonably be said to have been delib-

erately indifferent” to the problem. Canton, 489 U.S. at 390.

10

The suicide rate in the prison system at issue in Conn was six in only

two years. 572 F.3d at 1053.

1150 CLOUTHIER v. COUNTY OF CONTRA COSTA

In sum, there is no material evidence on the issue of the

County’s knowledge or the obviousness of the problem.

The Clouthiers also failed to dispute the County’s evidence

that it was not deliberately indifferent to the needs of mentally

ill pretrial detainees. The County had reasonable and well-

established written policies for handling detainee mental

health needs, which the Clouthiers concede “pass constitu-

tional muster.” In addition, the record indicates the County

invested considerable resources in developing its policies and

training its employees, including requiring all new deputies to

complete an eight-week training course and an annual

refresher course concerning people with mental disorders. The

County’s mental health staff are licensed mental health practi-

tioners with graduate degrees, and they receive both on-the-

job training and training in new developments in their areas

of expertise.

[20] There is little doubt the Clouthiers identified a series

of missteps and miscommunications that led to Clouthier’s

transfer to the general population while he was suicidal. Yet,

the Clouthiers have pointed to no evidence that would allow

a reasonable jury to conclude the County had caused the

improper transfer through deliberate omissions or the imple-

mentation of longstanding practices or customs. Accordingly,

the Clouthiers have not adduced evidence creating a triable

issue of material fact on the crucial issues for County liability.

B

To support their second argument, that the County’s prac-

tices were deficient because the County lacked adequate men-

tal health staffing, the Clouthiers point to Kramer’s testimony:

“We don’t stipulate how often people are to be seen. We don’t

have the staff to put in those sorts of guidelines.” Drawing all

inferences in favor of the Clouthiers, this testimony indicates

that the County did not require mental health staff to observe

mentally ill detainees on a set schedule, which was inconsis-

CLOUTHIER v. COUNTY OF CONTRA COSTA 1151

tent with its written policy. See Sheriff’s Policy

10.22(III)(E)(3)(a)(iii) (“Special supervision will be given to

any inmate housed in an Observation Room as directed in

writing by Medical/Mental Health staff . . . . Medical/Mental

Health staff will . . . [r]eview the status of the inmate and

update the Housing Unit Deputy every 10 hours so long as the

special supervision is required.”).

[21] However, the Clouthiers failed to adduce evidence that

the County was on actual or constructive notice of a problem

with mental health understaffing that would amount to a con-

stitutional tort. Further, there was no evidence that this

alleged understaffing problem led to repeated violations of

inmates’ constitutional rights or that the County was aware of

and acquiesced in a pattern of constitutional violations. See

Canton, 489 U.S. at 398 (O’Connor, J., concurring in part and

dissenting in part) (stating plaintiff failed to show a triable

issue where no evidence indicated “that there had been past

incidents of ‘deliberate indifference’ to the medical needs of

emotionally disturbed detainees or that any other circum-

stance had put the city on actual or constructive notice”). The

Clouthiers’ claim thus amounts to the argument that “an

injury or accident could have been avoided” if mental health

staffers had made more frequent observations of Clouthier.

Canton, 489 U.S. at 391. This is precisely the argument

against which the Supreme Court cautioned in Canton. Id. at

392

C

[22] Finally, the Clouthiers argue the County is liable for

the constitutional torts of its employees because it ratified the

employees’ unconstitutional acts. The Clouthiers have not

developed their argument on this point, but merely state that

the County ratified their employees’ conduct by failing to dis-

cipline the employees who violated Clouthier’s constitutional

rights. The Clouthiers adduced evidence that, although

Kramer had “the power to impose any discipline on any of the

1152 CLOUTHIER v. COUNTY OF CONTRA COSTA

mental health specialists,” he did not do so in response to

Blush’s actions.11 This bare allegation is insufficient to create

a triable issue of fact. The Clouthiers have not adduced evi-

dence that Kramer was a final policymaker or, even if he

were, that he made a conscious, affirmative choice to approve

Blush’s actions and adopt them as official policy. As we

stated in Gillette, “[t]o hold cities liable under section 1983

whenever policymakers fail to overrule the unconstitutional

discretionary acts of subordinates would simply smuggle

respondeat superior liability into section 1983 law [creating

an] end run around Monell.” 979 F.2d at 1348.

Taking all evidentiary inferences in favor of the Clouthiers,

they have at most shown that the County could have better

implemented its policies. But as the Supreme Court has indi-

cated, “[i]n virtually every instance where a person has had

his or her constitutional rights violated by a city employee, a

§ 1983 plaintiff will be able to point to something the city

‘could have done’ to prevent the unfortunate incident.” Can-

ton, 489 U.S. at 392. The Clouthiers have not produced suffi-

cient evidence to create a triable issue as to the question

whether Clouthier’s death was due to a long-standing custom

or practice of the County, an omission that amounted to delib-

erate indifference, or actions the County adopted as policy

when it failed to discipline Blush. Holding the County liable

for the missteps of its employees in this case would therefore

amount to “de facto respondeat superior liability,” an avenue

rejected in Monell. Id.

VI

We hold that the district court did not err in holding that the

individual defendants in this case could not be held liable for

failing to prevent Robert Clouthier’s suicide unless the defen-

dants had a punitive intent, which in the context of failing to

prevent harm requires a determination whether the defendants

11

Victoria Brown was disciplined by the County for her actions.

CLOUTHIER v. COUNTY OF CONTRA COSTA 1153

were deliberately indifferent to a serous risk of harm. See

Bell, 441 U.S. at 535; Farmer, 511 U.S. at 834. Here, the

Clouthiers adduced sufficient evidence to create a genuine

issue of material fact as to whether Blush was deliberately

indifferent to a substantial risk of serious harm to Robert

Clouthier, and therefore the district court erred in granting

Blush’s motion for summary judgment. Because a reasonable

official would have known such conduct amounted to a con-

stitutional violation, Blush is not entitled to qualified immu-

nity. The district court did not err in granting summary

judgment in favor of Foley and Steele, because the Clouthiers

failed to adduce sufficient evidence to create a genuine issue

of material fact as to whether Foley and Steele were deliber-

ately indifferent to a substantial risk of serious harm. With

regard to their claim against the County, the Clouthiers failed

to adduce sufficient evidence to create a genuine issue of

material fact as to whether Clouthier’s death was due to a

long-standing custom or practice, an act of omission that

amounted to deliberate indifference, or actions the County

adopted as policy when it failed to discipline its employees.

Therefore, the district court properly granted the County’s

motion for summary judgment.12

AFFIRMED in part, REVERSED in part, and

REMANDED.

BLOCK, Senior District Judge, concurring in part and dis-

senting in part:

I concur in the majority opinion in all respects save one: I

cannot agree that Deputy Foley is entitled to summary judg-

ment.

12

Each party bears its own costs on appeal.

1154 CLOUTHIER v. COUNTY OF CONTRA COSTA

The crux of the plaintiffs’ claim against Foley is that he

was instructed by Mental Health Specialist Blush not to move

Clouthier out of the Observation Room and failed to commu-

nicate that instruction to subsequent shifts, either orally or by

noting it in the Red Book. With respect to that claim, we must

take as true Blush’s testimony that she gave such an instruc-

tion. Although the majority does so, it concludes that “there

is insufficient evidence to establish that Foley was subjec-

tively aware that his failure to communicate Blush’s instruc-

tion[ ] to other deputies constituted a substantial risk of

serious harm to Clouthier, and deliberately ignored that risk.”

Thus, if a jury were to determine that Blush was not deliber-

ately indifferent because she instructed Foley not to move

Clouthier from the Observation Room, the majority has con-

cluded as a matter of law that it could not then consider

whether Foley deliberately ignored a substantial risk of harm

to Clouthier.

The majority’s conclusion with respect to Foley resolves

issues that, in my view, should be decided by a jury. As for

the “substantial risk” issue, although I appreciate that Foley’s

training suggested to him that Blush’s decision to remove

Clouthier from the Observation Log meant that he was no lon-

ger a suicide risk, there must have been some reason why

Blush also instructed him not to move Clouthier out of the

Observation Room (assuming that the jury finds that such an

instruction was given); the most obvious candidate is that she

still believed him to be suicidal. Thus, a jury could reasonably

conclude that Blush’s instruction communicated to Foley that

Clouthier still posed a substantial risk of serious harm to him-

self. See Farmer v. Brennan, 511 U.S. 825, 842 (1994)

(“Whether a prison official had the requisite knowledge of a

substantial risk is a question of fact subject to demonstration

in the usual ways, including inference from circumstantial

evidence.”).

I am also satisfied that a jury could reasonably find that

Foley’s failure to communicate Blush’s instruction crossed

CLOUTHIER v. COUNTY OF CONTRA COSTA 1155

the line between negligence and deliberate indifference.

According to Captain Pascoe, deputies were expected to use

the Red Book to pass important information to future shifts.

A factfinder could surely determine that Blush’s instruction

was a key suicide prevention measure; indeed, the failure to

implement it arguably paved the way for Clothier’s suicide.

Thus, if a jury were to find that Blush told Foley that Clothier

was not to be taken out of the Observation Room, I fail to

understand why we should rule as a matter of law that Foley’s

failure to pass that information on to subsequent shifts was

mere negligence. See Farmer, 511 U.S. at 847 (official is

deliberately indifferent if “he knows that inmates face a sub-

stantial risk of serious harm and disregards that risk by failing

to take reasonable measures to abate it”).

Finally, if a jury were to determine that Foley was a trained

deputy charged with the responsibility of implementing a key

suicide prevention measure (i.e., passing on instructions given

by a mental health professional that a detainee at risk of sui-

cide was to remain in the Observation Room), qualified

immunity would not attach because such an officer could not

reasonably have thought it was lawful to do nothing in

response to such an instruction. See Conn v. City of Reno, 572

F.3d 1047, 1062 (9th Cir. 2009) (“When a detainee attempts

or threatens suicide en route to jail, it is obvious that the trans-

porting officers must report the incident to those who will

next be responsible for her custody and safety. Thus, the con-

stitutional right at issue here has been clearly established.”).