Maurice Olivier v. Leroy Baca

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MAURICE P. OLIVIER, AKA Maurice No. 13-56371

Pierre Olivier,

Plaintiff-Appellant, D.C. No.

2:08-cv-07169-

v. JFW-AGR

LEROY D. BACA, Los Angeles

County Sheriff of Custody OPINION

Operations,

Defendant-Appellee.

Appeal from the United States District Court

for the Central District of California

John F. Walter, District Judge, Presiding

Argued and Submitted August 10, 2018

Pasadena, California

Filed January 11, 2019

Before: Consuelo M. Callahan and Jacqueline H. Nguyen,

Circuit Judges, and David A. Ezra,* District Judge.

Opinion by Judge Callahan

*

The Honorable David A. Ezra, United States District Judge for the

District of Hawaii, sitting by designation.

2 OLIVIER V. BACA

SUMMARY**

Prisoner Civil Rights

The panel affirmed the district court’s summary judgment

in favor of defendant Sheriff Baca in a 42 U.S.C. § 1983

action alleging that Baca violated plaintiff’s Fourteenth

Amendment rights by failing to provide him with a bed

during his three-and-a-half day stay at the Los Angeles

Inmate Reception Center while he was a pretrial detainee.

The panel held that the Los Angeles Sheriff’s Department

was well within the scope of its authority to maintain security

when it carried out the lockdowns that delayed plaintiff’s

transfer to permanent housing, resulting in three-and-a-half

days without a bed. The panel held that, in view of the

deference the Supreme Court has prescribed in the area of

correctional facility policy, along with Baca’s clarifications

of the rationale underlying Department procedures, there

was no basis in the record on which to conclude that the

response to the inmate disturbances constituted an

unnecessary or unjustified response to problems of jail

security.

The panel further held that even if a Fourteenth

Amendment violation did occur, the district court correctly

held that Baca was entitled to qualified immunity because the

right asserted by plaintiff—not being forced to sleep on the

floor during a jail lockdown—was not clearly established at

the time of the events.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

OLIVIER V. BACA 3

COUNSEL

R. Chris Lim (argued), Los Feliz Law APC, Los Angeles,

California, for Plaintiff-Appellant.

Jonathan Carl Magno (argued), Daniel Lee, and Paul B.

Beach, Lawrence Beach Allen & Choi PC, Glendale,

California, for Defendant-Appellee.

OPINION

CALLAHAN, Circuit Judge:

On the night of July 12, 2006, Plaintiff-Appellant Maurice

Olivier (“Olivier”) was arrested and taken to the Los Angeles

County Inmate Reception Center (“IRC”) for processing into

permanent housing. Due to a series of disturbances by

inmates and lockdowns throughout the Los Angeles County

jail system, Olivier was not transferred to permanent housing

until the afternoon of July 16, 2006. Olivier brought an

action under 42 U.S.C. § 1983 against Defendant-Appellee

Sheriff Leroy Baca (“Baca”) in Baca’s official and individual

capacities, alleging that Baca violated his Fourteenth

Amendment rights by failing to provide him with a bed

during his three-and-a-half day stay at the IRC. The district

court granted summary judgment in Baca’s favor, holding

that Olivier had not raised a genuine issue of material fact as

to whether disturbances by inmates and lockdowns

constituted exigent circumstances justifying the floor

sleeping. Olivier appeals. We affirm and hold that the

exigent circumstance of inmate disturbances and lockdowns

justified denying Olivier a bed for his three-and-a-half day

stay at the IRC.

4 OLIVIER V. BACA

I. FACTUAL AND PROCEDURAL BACKGROUND

A.

On May 25, 2006, Olivier was arrested by the Los

Angeles Police Department for burglary. He was processed

into permanent housing at Los Angeles Men’s Central Jail

(“MCJ”) but erroneously released on July 7, 2006. On July

12, 2006, the Los Angeles County Sheriff’s Department

(“LASD”) located and again arrested Olivier. At 9:56 p.m.,

he arrived at the IRC for processing into the county jail

system.1

Upon Olivier’s arrival at the IRC, he was determined to

have health issues. Consequently, Olivier was sent to the

medical screening area of the IRC where he waited on a

bench for an examination, along with around 100 other

people.

LASD officials determined that Olivier could be properly

housed only at MCJ in light of his medical needs, his

classification as a non-high risk inmate without mental

1

The IRC serves as a hub for processing incoming and outgoing

inmates in the jail system. The process occurs in three stages:

(1) “booking front,” which involves an initial interview, screening, and

photograph; (2) “class rear,” which involves medical screening,

fingerprinting and housing classification; and (3) “custody line,” where

inmates are fed, provided medication if applicable, and picked up by

personnel from the housing facility to which they are assigned. On

average, more than 300 inmates are processed daily at the IRC.

OLIVIER V. BACA 5

illness, and the proximity of MCJ to the venue of his

underlying criminal case.2

While Olivier was being processed at the IRC for transfer

to MCJ, inmates at jail facilities across Los Angeles County

repeatedly divided themselves along racial lines and fought.

This string of inmate disturbances persisted for approximately

three days and necessitated lockdowns at multiple facilities,

which, in turn, delayed processing at the IRC. LASD logs

and declarations from LASD personnel provide accounts of

the disturbances.3

2

In 2006, the LASD operated three housing facilities for male

inmates within the Los Angeles County jail system: MCJ, Twin Towers

Correctional Facility, and Pitchess Detention Center. Twin Towers

housed exclusively inmates with high security risk classifications, inmates

suffering from severe mental illness, and sexually violent inmates.

Pitchess did not have medical services that would have accommodated

Olivier’s claimed medical condition. Additionally, Pitchess is located

more than forty-five miles by road from the venue where Olivier’s

criminal case was scheduled. MCJ was thus the only suitable permanent

housing for Olivier.

3

On July 13, 2006, at 8:30 a.m., the IRC class rear was closed due to

inmate fighting, causing inmate processing at the IRC to stop. On July 13

at 4:30 p.m., approximately 100 IRC custody line inmates could not be

transferred due to inmate disturbances at Pitchess Detention Center. On

July 13, Twin Towers was placed on full lockdown. From 11:15 p.m. on

July 13 until 1:20 a.m. on July 14, inmate rioting occurred at the MCJ. On

July 14, the MCJ remained on full lockdown from 2:05 p.m. to 8:09 p.m.

From July 14 at 10:45 p.m. into the following days, the IRC’s class rear

and custody line were placed on lockdown. On July 15 at 9:30 a.m., and

again at 6:00 p.m., the IRC booking front was on lockdown. On July 15,

MCJ was on lockdown until late in the day. On July 16, Twin Towers was

on lockdown from 6:00 a.m. to 9:00 a.m.

6 OLIVIER V. BACA

Olivier remained at the IRC for the duration of the inmate

disturbances, lockdowns, and post-lockdown procedures

before being transferred to MCJ on July 16. In total, Olivier

was held at the IRC for approximately three-and-a-half days.

Olivier testified that although there were benches in the cell

where he was held, there was inadequate space to

accommodate the number of detainees at the IRC. Olivier

testified that no one slept on the benches because trying to do

so would have led to a fight. As a result, Olivier slept on the

floor during his time at the IRC. Olivier testified that he

never asked for “a mattress, blankets, or any other sort of

padding.”

After the lockdowns began on July 13, the first time

inmates were picked up from the IRC custody line was on

July 16 around 2:00 a.m. Olivier was transferred to the MCJ

at 1:14 p.m. on July 16.

B.

On October 30, 2008, Olivier filed a complaint in district

court alleging civil rights violations related to both his

extended stay at the IRC and events that occurred after he

was transferred to MCJ.4 The district court dismissed certain

aspects of Olivier’s original claims, and Olivier amended his

complaint several times. By the time the case reached the

summary judgment stage, the only remaining claim relevant

to this appeal was a Fourteenth Amendment claim against

4

Olivier’s claims relating to his experiences at MCJ were dismissed,

aside from a Fourteenth Amendment claim regarding exposure to lice in

his jail cell. The complaint also named a number of defendants in addition

to Baca. On July 10, 2010, the district court dismissed all defendants

except Baca.

OLIVIER V. BACA 7

Baca in his official and individual capacities regarding

Olivier’s being forced to sleep on the floor at the medical

intake area of the IRC.

Baca filed a motion for summary judgment. After the

magistrate judge recommended denying the motion for lack

of evidence that exigent circumstances existed, the district

court gave Baca an opportunity to supplement the record.

Baca then submitted additional declarations by LASD

officials. In 2013, the Operations Deputy at the IRC

explained that in response to such disturbances a large

proportion of jail staff must work to restore order. Jail

personnel who do not respond to the disturbances and remain

in other areas of the facility are, therefore, likely to be

significantly outnumbered by inmates. Consequently, normal

operations must be suspended and the entire facility placed on

lockdown until order is restored and the staff-to-inmate ratio

returns to normal in all areas of the jail. As part of a

lockdown, no inmates are permitted to move in or out of the

facility. This means inmate transfers to permanent housing

are cancelled by the IRC for the duration of a lockdown. A

lockdown at a facility in Los Angeles County may thus

prolong processing times at the IRC. The Operations Deputy

further explained that a lockdown in any one of the booking

front, class rear, or custody line stages necessarily results in

a lockdown in the other areas because each stage operates in

connection with the others.

An LASD sergeant assigned to the MCJ during the time

of the disturbances explained that after a lockdown is lifted,

inmate movement cannot immediately resume. Following a

lockdown caused by inmate disturbances, detention facility

personnel must conduct thorough security checks, survey

property damage, and address medical needs. These post-

8 OLIVIER V. BACA

lockdown procedures naturally lead to delays in inmate

processing in excess of the length of the lockdowns

themselves.

The magistrate judge concluded that the newly

supplemented record conclusively demonstrated that the Los

Angeles County jail system experienced exigent

circumstances due to the disturbances and lockdowns. The

magistrate judge recommended granting Baca’s motion for

summary judgment in its entirety. On July 19, 2013, the

district court accepted the magistrate judge’s

recommendations, granted summary judgment in favor of

Baca, and dismissed the case with prejudice.

II. STANDARD OF REVIEW

A district court’s order granting summary judgment is

reviewed de novo. McDonald v. Sun Oil Co., 548 F.3d 774,

778 (9th Cir. 2008). The party moving for summary

judgment bears the initial burden of identifying those portions

of the pleadings, discovery and affidavits which demonstrate

the absence of a genuine issue of material fact. Celotex Corp.

v. Cattrett, 477 U.S. 317, 323 (1986). Where, as here, the

opposing party will have the burden of proof at trial, the

moving party need only point out “that there is an absence of

evidence to support the nonmoving party’s case.” Id. at 325.

III. ANALYSIS

A pretrial detainee is

protected by the Fourteenth Amendment’s

Due Process Clause . . . . Under the Due

Process Clause, detainees have a right against

OLIVIER V. BACA 9

jail conditions or restrictions that amount to

punishment. This standard differs

significantly from the standard relevant to

convicted prisoners, who may be subject to

punishment so long as it does not violate the

Eighth Amendment’s bar against cruel and

unusual punishment.

Pierce v. Cty. of Orange, 526 F.3d 1190, 1205 (9th Cir. 2008)

(internal citations and quotation marks omitted). For Olivier

to state an actionable claim against Baca in his official

capacity, Olivier must show that “the action that is alleged to

be unconstitutional implements or executes a policy

statement, ordinance, regulation, or decision officially

adopted and promulgated by that body’s officers.” Monell v.

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

690 (1978). Local entities may also be “sued for

constitutional deprivations visited pursuant to governmental

‘custom’ even though such a custom has not received formal

approval through the body’s official decisionmaking

channels.” Id. at 690–91. For Olivier to state an actionable

claim against Baca in his individual capacity, he must show

that Baca was personally involved in his alleged

constitutional deprivation by, for example, acting, or failing

to act, in a manner that was deliberately indifferent to

Olivier’s constitutional rights. Starr v. Baca, 652 F.3d 1202,

1206 (9th Cir. 2011).

A.

Olivier argues that summary judgment was improper

because the evidence in the record establishes a triable issue

as to whether the disturbances by inmates and lockdowns

justified his floor sleeping.

10 OLIVIER V. BACA

It has long been recognized that “central to all other

corrections goals is the institutional consideration of internal

security within the corrections facilities themselves.” Pell v.

Procunier, 417 U.S. 817, 823 (1974). The Supreme Court

has explained that measures to preserve security and order

“may require limitation or retraction of the retained

constitutional rights of both convicted prisoners and pretrial

detainees.” Bell v. Wolfish, 441 U.S. 520, 546 (1979). In this

regard, corrections officials “should be accorded wide-

ranging deference in the adoption and execution of policies

and practices that in their judgment are needed to preserve

internal order and discipline and to maintain institutional

security.” Id. at 547; Bull v. City and Cty. of San Francisco,

595 F.3d 964, 972 (9th Cir. 2010) (en banc). The Supreme

Court has reaffirmed this principle, explaining that—in

addressing a § 1983 claim brought by a pretrial detainee—

“courts must defer to the judgment of correction officials

unless the record contains substantial evidence showing their

policies are an unnecessary or unjustified response to

problems of jail security.” Florence v. Bd. of Chosen

Freeholder of Cty. of Burlington, 566 U.S. 318, 322–23

(2012).

In the context of disturbances by inmates and lockdowns,

we have held that such issues can delay detention facility

procedures and temporarily restrict certain rights without

violating the Eighth Amendment. See, e.g., Noble v. Adams,

646 F.3d 1138, 1142–43 (9th Cir. 2011); Norwood v. Vance,

591 F.3d 1062, 1069 (9th Cir. 2010). In Noble, we held that

a three-month curtailment of prisoners’ outside exercise

rights in response to a riot that hospitalized nine prison staff

was not a violation of their Eighth Amendment rights.

646 F.3d at 1143. We stated that it was not yet clearly

established “precisely how, according to the Constitution, or

OLIVIER V. BACA 11

when a prison facility housing problem inmates must return

to normal operations . . . during and after a state of

emergency called in response to a major riot.” Id. In

Norwood, we explained that “[o]fficials must balance [the

duty to keep inmates safe] against other obligations that our

laws impose . . . . ‘[P]rison officials have a right and duty to

take the necessary steps to reestablish order in a prison when

such order is lost.’” 591 F.3d at 1069 (quoting Hoptowit v.

Ray, 682 F.2d 1237, 1259 (9th Cir. 1982)).

Although Noble and Norwood involve prisoners and

Eighth Amendment rights, the same considerations are

relevant in the pretrial detainee context. Jails, just like

prisons, “are responsible for maintaining internal order and

discipline [and] for securing their institutions against

unauthorized access or escape.” Bell, 441 U.S. at 548 n.30

(quoting Procunier v. Martinez, 416 U.S. 396, 404 (1974)).

Further, “[t]here is no basis for concluding that pretrial

detainees pose any lesser security risk than convicted

inmates.” Bell, 441 U.S. at 546 n.28. The district court in

Thomas v. Baca, 514 F. Supp. 2d 1201, 1225 (C.D. Cal.

2007), for example, recognized this principle when it

suggested an exception to the general rule that each inmate in

LASD facilities must be provided with a bunk: “A sudden,

extreme rise in inmate population caused by an acute event,

such as a civil disturbance, may affect the length of time that

is reasonable for processing.”

Here, LASD was well within the scope of its authority to

maintain security when it carried out the lockdowns that

delayed Olivier’s transfer to permanent housing, resulting in

three-and-a-half days without a bed. The evidence is

uncontroverted that, over this period of time, LASD was

confronted with emergencies that threatened the safety and

12 OLIVIER V. BACA

security of its facilities. It is also clear that the jail officials’

response to the security threats was reasonable in its scope

and effective in controlling the disturbances. See Bell,

441 U.S. at 540 (“Restraints that are reasonably related to the

institution’s interest in maintaining jail security do not,

without more, constitute unconstitutional punishment, even

if they are discomforting . . . .”). Indeed, Olivier was

promptly transferred to permanent housing after the

disturbances had been controlled. Thus, in view of the “wide-

ranging deference,” id. at 547, the Supreme Court has

prescribed in the area of correctional facility policy, along

with Baca’s clarifications of the rationale underlying LASD

procedures, there is no basis in the record on which to

conclude that LASD’s response to the inmate disturbances

constituted “an unnecessary or unjustified response to

problems of jail security.” Florence, 566 U.S. at 322.

Olivier relies on Thomas v. Ponder, 611 F.3d 1144, 1155

(9th Cir. 2010), to support his argument that his holdover at

the IRC raises an issue of material fact, but Ponder is

distinguishable. In Ponder, we held that an indefinite

deprivation of out-of-cell exercise lasting for fourteen months

raised a genuine issue of material fact as to whether the

prison officials acted reasonably. Id. at 1156. The first two

months of deprivation of out-of-cell activity was due to a

prison-wide lockdown in the wake of stabbings of two

correctional officers. Id. Prison officials argued that

prolonging the plaintiff’s punishment for an additional year

was justified, in part, because of “occasional documented

threats” that ensued. Id. We rejected the prison officials’

argument, finding that a genuine issue of material fact existed

as to whether the 14-month deprivation was reasonable. Id.

at 1152.

OLIVIER V. BACA 13

Here, in contrast, the evidence shows that LASD

addressed a nearly uninterrupted series of riots and civil

disturbances involving hundreds of inmates, and resumed

normal operations within a matter of hours after jail officials

regained control of their facilities. The differences in both

the extent of the civil disturbances and the length of the

deprivation make Ponder unhelpful to Olivier’s argument.5

B.

Olivier also argues that the district court erred in granting

summary judgment in favor of Baca based on qualified

immunity. He contends that, although the specific issue of

floor sleeping during inmate processing due to exigent

circumstances had not been held unconstitutional, “the

unlawfulness was apparent under the circumstances.” Olivier

further contends that Baca should have been “prohibit[ed] . . .

from arguing . . . qualified immunity . . . [b]ased upon

Appellant’s collateral estoppel arguments.”

“Qualified immunity shields federal and state officials

from money damages unless a plaintiff pleads facts showing

5

Olivier also argues that an inference is proper that the disturbances

and lockdowns that led to his holdover at the IRC were natural

consequences of prison overcrowding. He contends that if such

disturbances are common they should not excuse constitutional violations.

Olivier, however, has not presented any admissible evidence to

demonstrate, as he claims, that riots were the natural and foreseeable

consequences of overcrowding in Los Angeles County jails. Olivier cites

in his brief two internet articles—published over ten years after the events

at issue—reporting generally on overcrowding in Los Angeles jails.

However, as these articles were not in the record before the district court,

they do not undermine the district court’s decision. See U.S. v. W.R.

Grace, 504 F.3d 745, 766 (9th Cir. 2007). Accordingly, we reject this

argument.

14 OLIVIER V. BACA

(1) that the official violated a statutory or constitutional right,

and (2) that the right was ‘clearly established’ at the time of

the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731,

735 (2011). For a right to be “clearly established,” existing

“precedent must have placed the statutory or constitutional

question beyond debate,” such that “every” reasonable

official would have understood that he was violating a clearly

established right. Id. at 741. “This is not to say that an

official action is protected by qualified immunity unless the

very action in question has previously been held unlawful, but

it is to say that in the light of pre-existing law the

unlawfulness must be apparent.” Anderson v. Creighton,

483 U.S. 635, 640 (1987) (citation omitted). The burden is

on the party contesting qualified immunity to show that a law

was clearly established at the time of an alleged violation.

Davis v. Scherer, 468 U.S. 183, 197–98 (1984).

Olivier has not demonstrated that the law regarding floor

sleeping, in the context of exigent circumstances, was or is

clearly established. Thompson v. City of Los Angeles,

885 F.2d 1439, 1448 (9th Cir. 1989), overruled on other

grounds by Bull, 595 F.3d at 981, and Rutherford v. Pitchess,

457 F. Supp. 104, 109 (C.D. Cal. 1978), held that forcing

detainees to sleep on the ground is a constitutional violation.

However, those cases did not involve exigent circumstances,

and thus any “unlawfulness” cannot be said to have been

“apparent” to Baca in the context of the inmate disturbances

at issue here. Olivier also cites Thomas to support his

argument that it is clearly established that inmate processing

should take no longer than twenty-four hours. 514 F. Supp

2d at 1215. Thomas, a district court decision, was not

decided until over a year after the events at issue, so that case

could not have “placed the . . . constitutional question beyond

debate” at the time of Olivier’s delay at the IRC. See al-Kidd,

OLIVIER V. BACA 15

563 U.S. at 741. Additionally, Thomas explicitly recognized

an exception to its general inmate processing guidelines for

exigent circumstances such as civil disturbances. 514 F.

Supp. 2d at 1218–19.

Finally, we reject Olivier’s argument that collateral

estoppel should have prevented Baca from claiming qualified

immunity. Collateral estoppel bars successive litigation of an

issue of fact or law actually litigated and resolved in a prior

court determination even if the issue recurs in the context of

a different claim. See Howard v. City of Coos Bay, 871 F.3d

1032, 1040–41 (9th Cir. 2017). The issue presented in this

case—floor sleeping due to exigent circumstances—was not

addressed in any of the cases cited by Olivier, and the district

court in Thomas specifically recognized an exigent

circumstances exception to its holding that floor sleeping is

unconstitutional. 514 F. Supp. 2d at 1218–19. Accordingly,

collateral estoppel does not apply.

In sum, Olivier has not shown that a genuine issue of

material fact exists as to whether Baca was entitled to

qualified immunity.6

C.

Olivier also argues that the district court abused its

discretion by: (1) declining to transfer the case to another

courtroom as a related case; (2) failing to authorize punitive

damages against Baca; (3) failing to take judicial notice of his

6

Baca also argues that Olivier failed to exhaust the administrative

remedies available to him under the Prison Litigation Reform Act.

Because we hold that the district court did not err in granting summary

judgment, we do not reach this issue.

16 OLIVIER V. BACA

opposition motion; and (4) admitting declarations from

LASD officials. None of these arguments is persuasive.

First, the district court did not abuse its discretion by

declining to transfer the case because the record does not

indicate that Olivier filed a Notice of Related Civil Cases, as

he was required to do for the district court to consider

transferring the case. C.D. Cal. R. 83-1.3.1. Second, punitive

damages are not available against Baca in his official

capacity, see Mitchell v. Dupnik, 75 F.3d 517, 527 (9th Cir.

1996), and Olivier’s claim for punitive damages against Baca

individually is moot in light of our holding that Baca is

entitled to qualified immunity. Third, the district court did

not abuse its discretion by declining to take judicial notice of

Olivier’s opposition motion because “[l]egal memoranda . . .

are not evidence, and do not create issues of fact capable of

defeating an otherwise valid motion for summary judgment.”

Flaherty v. Warehousemen, Garage & Serv. Station Empls.’

Local Union No. 334, 574 F.2d 484, 486 n.2 (9th Cir. 1978).

Finally, the district court did not abuse its discretion by

admitting declarations from LASD officials because the

officials had personal knowledge of both the events and the

LASD procedures at issue. Fed. R. Civ. P. 56(c)(4); see, e.g.,

S.E.C. v. Phan, 500 F.3d 895, 913 (9th Cir. 2007).

IV. CONCLUSION

Olivier has not presented a basis for disturbing the district

court’s judgment. The evidence is uncontroverted and

summary judgment was proper as a matter of law. In

addition, even if a Fourteenth Amendment violation did

occur, the district court correctly held that Baca is entitled to

qualified immunity because the right asserted by Olivier—not

being forced to sleep on the floor during a jail

OLIVIER V. BACA 17

lockdown—was not clearly established at the time of the

events. Finally, Olivier has not shown that the district court

abused its discretion in rejecting his various ancillary claims.

AFFIRMED.