Petition for Writ of Certiorari — County of Los Angeles v. Cabrales

89-9 07

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

COUNTY OF LOS ANGELES

AND RONALD BLACK,

Petitioners,

VS.

JOSEFINA CABRALES,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

THE LOS ANGELES COUNTY COUNSEL’S OFFICE

DE WITT W. CLINTON, County Counsel

S. ROBERT AMBROSE, Assistant County Counsel

DENNIS M. GONZALES, Senior Deputy County Counsel

KEVIN C. BRAZILE, Deputy County Counse!*

648 Hall of Administration

500 W. Temple Street _

Los Angeles, California 90012

(213) 974 -1943

Attorneys for Petitioners

COUNTY of LOS ANGELES and RONALD BLACK

*Counsel of Record

Lawyers Brief Service / Legal Printers / (213) 383-4457 / (714) 720-1510

as

QUESTIONS PRESENTED

(1) Whether a municipality can be held liable under 42

U.S.C. Section 1983 for the suicide of a single jail in-

mate based upon alleged inadequate staffing with regard

to only psychiatrists, where the inmate was examined,

diagnosed, and prescribed treatment by a competent jai!

psychiatrist that was implemented.

(2) Whether a municipality can be held liable under 42

U.S.C. Section 1983 for the suicide of a single jail in-

mate based upon alleged inadequate staffing with regard

to only psychiatrists, without the municipality’s

policymakers having actual or constructive notice of

constitutionally deficient medical treatment.

LIST OF PARTIES

Petitioners herein are:

COUNTY OF LOS ANGELES, which is a politi-

cal subdivision, public entity and municipality of the

State of California; and RONALD BLACK, commander

of the Los Angeles County Men’s Central Jail.

Respondent herein is:

JOSEFINA CABRALES

oth.

TABLE OF CONTENTS

Page

ys i

Ee a Vina s 6 Gi givtedsceseceeses i

I Es ove cece esse recesses iv

pp gy 0g 9 | Vv

ESTO TST 1

EE SE ee 2

CONSTITUTIONAL AND STATUTORY

Ga Ba wees ya ses sce ese cceces 2

maeenmeeee Gee ene CASE ...............2..- 2

- iii -

REASONS FOR GRANTING THE WRIT.......... 8

I. THE DECISION BELOW WHICH HELD

THAT INADEQUATE STAFFING CON- :

STITUTES A POLICY OR CUSTOM

OF DELIBERATE INDIFFERENCE TO

A PRISONER’S SERIOUS MEDICAL |

NEEDS, REGARDLESS OF THE AC-

TUAL TREATMENT GIVEN_- THE

PRISONER, IS IN CONFLICT WITH

AN APPLICABLE DECISION OF THIS

COURT. IF PERMITTED TO STAND,

THE DECISION BELOW WOULD

AUTHORIZE COGNIZABLE CONSTI-

TUTIONAL CLAIMS WHERE, AT BEST,

ONLY NEGLIGENT MEDICAL TREAT-

MENT IS ESTABLIOMOED. ...nccccccseces 8

II. THE DECISION BELOW CONCERNING

WHAT CONSTITUTES DELIBERATE

INDIFFERENCE TO A_ PRISONER’S

SERIOUS MEDICAL NEEDS IS_ IN

CONFLICT WITH AN APPLICABLE

DECISION OF THIS COURT. IF

PERMITTED TO STAND, THE DECI-

SION BELOW WOULD ALLOW A

POLICY OF DELIBERATE INDIF-

FERENCE TO A PRISONER’S SERIOUS

MEDICAL NEEDS TO BE_ ESTAB-

LISHED WITHOUT PROOF THAT

THE POLICYMAKERS HAD ACTUAL

OR CONSTRUCTIVE NOTICE OF

THE ALLEGED CONSTITUTIONAL

DEFICIENCY. . ose uns se eee seek ons e's ais 10

CONCLUSION

‘ten

Page

LIST OF APPENDIX

APPENDIX A

OPINION, UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT,

FILED SEPTEMBER 21, 1989 ........... A-1

APPENDIX B

OPINION, UNITED STATES SUPREME

COURT, FILED MAY 30, 1989 .-........ B-1

APPENDIX C

OPINION, UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT,

FILED DECEMBER 28, 1988............ C-1

APPENDIX D

JUDGMENT ON JURY VERDICT,

UNITED STATES DISTRICT COURT,

CENTRAL DISTRICT OF CALIFORNIA,

Eee? rms 84, 19GT. eee cess D-1

APPENDIX E

JURY INSTRUCTION WHICH STATED

THAT INADEQUATE STAFFING RE-

GARDING PSYCHIATRISTS DID NOT

CONSTITUTE DELIBERATE _INDIF-

APPENDIX F

CONSTITUTIONAL AND STATUTORY

ee F-]

-V-

TABLE OF AUTHORITIES

Page

Cases

City of Canton, Ohio v. Harris

489 U.S. __, 109 S.Ct. 1197,

103 L.Ed.2d 412 (1989) .......... 1, 6-8, 10, 11

Estelle v. Gamble

420 US. FF CURT s bs 8 oa a eee 8,9

Josefina Cabrales v. County of Los Angeles, et al.

864 F.2d 145464 (Ses Civ. P9GB). . cc ve bec cee es 1

Statutes

United States Code

26 U SA. Gee TL «ss she whidawiaee ves 2

42 U.S.C. Goethe Tie osc ks vc es eens 2, 10

Constitution

United States Constitution

Fourteenth Amendment, Section 1............. 2

No.

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1989

COUNTY OF LOS ANGELES

AND RONALD BLACK,

Petitioners,

VS.

JOSEFINA CABRALES,

Respondent.

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

The original opinion of the Court of Appeals in this

case was filed on December 28, 1988 and reported as

Josefina Cabrales v. County of Los Angeles, et al., 864

F.2d 1454 (9th Cir. 1988), and is attached hereto as

Appendix C.

On May 30, 1989, this court granted petitioners’ Writ

of Certiorari, vacated the original opinion of the court of

appeals, and remanded the case back to the Ninth Circuit

for further consideration in light of City of Canton, Ohio

v. Harris, 489 U.S. __, 109 S.Ct. 1197, 103 L.Ed.2d 412

(1989). A copy of this court’s May 30, 1989 order is

attached hereto as Appendix B. On September 21, 1989,

the United States Court of Appeals for the Ninth Circuit

=

reinstated its previous decision. A copy of the Ninth

Circuit’s reinstatement order is attached hereto as

Appendix A.

JURISDICTION

The judgment of the Court of Appeals for the Ninth

Circuit was entered on September 21, 1989, and this

petition for Certiorari was filed within 90 days of that

date. Petitioners County of Los Angeles and Ronald

Black invoke this Court’s jurisdiction by Certiorari

pursuant to 28 U.S.C. Section 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS

The following constitutional and statutory provisions

appear in Appendix F:

Fourteenth Amendment, Section 1

United States Code, Title 28, Section 1254(1)

United States Code, Title 42, Section 1983

STATEMENT OF THE CASE

On October 18, 1984, plaintiff-respondent Josefina

Cabrales filed this action against the County of Los

Angeles, the commander of the Los Angeles County

Men’s Central Jail, Ronald Black, and several other

County employees, under 42 U.S.C. Section 1983, for

damages resulting from the death by suicide, of her son

Sergio Alvarez Cabrales (decedent). Respondent

claimed that the County of Los Angeles and its employ-

ees caused her son to commit suicide while he was

ae

fs.

confined in the Los Angeles County Men’s Central Jail,

due to a policy or custom of deliberate indifference to

decedent’s alleged serious medical needs.

The facts upon which respondent’s claim was

predicated are undisputed. On October 27, 1983

decedent was a pretrial detainee confined in the Los

Angeles County Men’s Central Jail, which the Los

Angeles County Sheriff’s Department managed and

operated. Ronald Black was the commander of the

Men’s Central Jail.

On October 31, 1983, sheriff's deputies found

decedent lying face down in his cell. The deputies took

decedent to the jail medical facility where he was

examined by a jail physician. The doctor examined

decedent and concluded that he was in normal physical

condition. Nonetheless, decedent was transferred to the

psychiatric observation section of the jail because he had

exhibited unusual behavior.

The next day decedent was examined by a jail

psychiatrist. The psychiatrist concluded that on October

31, 1983 decedent had experienced a fainting spell, and

that he had no mental disorder.

On December 12, 1983 decedent was transferred from

the Wayside Honor Ranch jail facility to the Men’s

Central Jail. When decedent arrived at the Men’s

Central Jail he was evaluated by a nurse. During the

course of the evaluation decedent was reluctant to

answer questions, but he did deny any suicidal ideation,

drug or alcohol abuse. The nurse suspected that de-

cedent had a possible mental problem so he was placed

in the psychiatric observation section of the jail pending

an evaluation by a psychiatrist.

The next day decedent was evaluated by a jail

psychiatrist. The psychiatrist found that decedent might

a. S

have some kind of personality disorder, but not a mental

illness. The psychiatrist also noted that decedent denied

any past history of mental problems, and he denied any

suicidal ideation.

On December 16, 1983, and after being confined in

the psychiatric observation section of the jail for four

days without any problems or distress, decedent

apparently tried to commit suicide by hanging, but two

sheriff’s deputies stopped him before he could jump off

his cell bars with a blanket tied around his neck and cell

bars. Decedent was immediately taken to the jail

medical clinic and examined by a nurse. During the

examination with the nurse, decedent stated he

threatened to kill himself because he did not like staying

in the psychiatric section of the jail. Decedent also

informed the nurse that he was not crazy and that he did

not want to see a psychiatrist.

The following day a psychiatrist examined decedent

and concluded that his suicide attempt the previous day

was not bona fide, but was instead a suicidal gesture

done to get out of the psychiatric section of the jail. The

psychiatrist also concluded that decedent was non-

suicidal, and the treatment prescribed for decedent was

that he be closely and frequently monitored while

confined in the jail psychiatric ward.

From December 17, 1983 to December 19, 1983,

decedent was confined in the psychiatric ward where he

exhibited no problems, or distress, and he made no

complaints. On December 19, 1983, a psychiatrist

examined decedent and concluded that he was not a

danger to himself or others, and could be discharged into

the general jail population.

On December 24, 1983 decedent became involved in a

fight with a few other inmates and during the fight one

inmate was stabbed with a sharp object. After the

sities P

7

incident an eyewitness informed a sheriff’s deputy that

decedent had committed the stabbing. Therefore,

decedent was placed in the jail’s predisciplinary module

pending a hearing to determine whether he had been

fighting.

Two days later decedent was given a hearing on the

question of whether he violated the jail rule that

prohibited fighting. After the hearing it was determined

that decedent had been fighting and his punishment was

ten (10) days in the disciplinary isolation module of the

jail. During the entire time decedent was confined in the

disciplinary module he showed no signs of stress,

depression or suicidal intentions, and made no requests

for medical care.

On January 3, 1984, without any warnings, decedent

committed suicide by hanging himself with an ace

bandage that was wrapped around a towel rack in his

cell.

On May 29, 1986, the County of Los Angeles filed a

Motion for Summary Judgment on the grounds that: (1)

a policy or custom of deliberate indifference did not

exist and (2) a County policy or custom was not the

cause of decedent’s suicide. The Federal District Court

denied the County’s Motion for Summary Judgment on

June 9, 1986.

On March 27, 1987 a jury trial commenced. At the

close of the plaintiff’s evidence on April 3, 1987, the

County, Black and several sheriff’s deputy defendants

moved for a Directed Verdict. The trial judge did not

rule on the Motion for Directed Verdict when it was

filed, but instead took the motion under submission. On

April 7, 1987, which was the final day of trial, the trial

judge denied the Motion for Directed Verdict. Next,

after the close of all evidence, the trial judge again

Ys

denied the County and Black’s Motion for Directed

Verdict, but granted it as to the remaining defendants.

On April 10, 1987, the jury returned a verdict against

the County and Black in the amount of $157,500, and

judgment on the jury verdict was entered on April 16,

1987. On April 20, 1987, the County and Black filed a

timely Motion for Judgment Notwithstanding the

Verdict. On June 8, 1987, the District Court denied the

Motion for Judgment Notwithstanding the Verdict

because petitioners allegedly failed to renew their

Motion for Directed Verdict at the close of all evidence.

On December 28, 1988, the Court of Appeals for the

Ninth Circuit affirmed the District Court’s denial of the

County’s Motion for Summary Judgment and upheld the

jury verdict. The Ninth Circuit found that the County of

Los Angeles and the commander of the jail, Ronald

Black, were deliberately indifferent to decedent’s serious

medical needs even though decedent was diagnosed and

prescribed treatment that was implemented. The Ninth

Circuit also ruled that the County of Los Angeles and its

alleged policymaker, Ronald Black, had an unconsti-

tutional policy of understaffing regarding psychiatrists,

even though the jury was instructed that understaffing

regarding psychiatrists, standing alone, did not constitute

deliberate indifference to the serious medical needs of

inmates.

On May 30, 1989, this court granted the County of

Los Angeles’ and Ronald Black’s Petition for Writ of

Certiorari. In granting the Writ of Certiorari, this court

reversed and vacated the original decision of the United

States Court of Appeals, Ninth Circuit, and remanded

the case back to the Ninth Circuit for reconsideration in

light of City of Canton, Ohio v. Harris, 489 U.S. __, 109

S.Ct. 1197, 103 L.Ed.2d 412 (1989)

2

On September 21, 1989, the United States Court of

Appeals for the Ninth Circuit ordered that its original

decision filed on December 28, 1988, which affirmed the

jury verdict, be reinstated. Remarkably, the Ninth

Circuit reinstated its original decision even though this

court held in City of Canton, Ohio v. Harris, id., that

merely showing a need for more or better training,

(which is analogous to staffing) does not constitute

deliberate indifference to an inmate’s serious medical

needs. The Ninth Circuit chose to disregard the

principles set forth in City of Canton, Ohio v. Harris,

id., because its reinstatement order is in violation of the

rule that a policy or custom of deliberate indifference

must be based on multiple incidents of unconstitutional

activity. Moreover, the Ninth Circuit ruled that the

County of Los Angeles had an unconstitutional policy

due to inadequate staffing in terms of psychiatrists even

though the jury was instructed that inadequate staffing,

standing alone, does not constitute deliberate in-

difference. (See RT, April 8, 1987, at pages 8-28, and

8-29 Appendix E.) .

«a.

REASONS FOR GRANTING THE WRIT

I.

THE DECISION BELOW WHICH

HELD THAT INADEQUATE STAFF-

ING CONSTITUTES A POLICY OR

CUSTOM OF DELIBERATE _IN-

DIFFERENCE TO A_ PRISONER’S

SERIOUS MEDICAL NEEDS, RE-

GARDLESS OF THE ACTUAL

TREATMENT GIVEN THE PRISON-

ER, IS IN CONFLICT WITH AN

APPLICABLE DECISION OF THIS

COURT. IF PERMITTED TO STAND,

THE DECISION BELOW WOULD

AUTHORIZE COGNIZABLE CONSTI-

TUTIONAL CLAIMS WHERE, AT

BEST, ONLY NEGLIGENT MEDICAL

TREATMENT IS ESTABLISHED.

In Estelle v. Gamble, 429 U.S. 97 (1976), this court

held that a constitutional violation regarding a prisoner’s

serious medical needs can only be established by

proving deliberate indifference to the prisoner’s serious

medical needs, and this court ruled that mere negligent

medical treatment does not establish a constitutional

violation. In City of Canton, Ohio v. Harris, 489 U.S.

__, 109 S.Ct. 1197 (1989), this court held that a policy

or custom of deliberate indifference could not be proved

by showing that an injury or accident could have been

avoided by better or more training.

The decision below permitted the jury to find a policy

of deliberate indifference based on inadequate staffing

regarding psychiatrists, even though the undisputed

« 's

factual evidence established that decedent was examined

by a competent psychiatrist who diagnosed his condition

and prescribed treatment which was given. Moreover,

the Ninth Circuit upheld the jury’s finding of deliberate

indifference, even though the jury was instructed that

inadequate staffing in terms of psychiatrists did not

constitute deliberate indifference. (See Appendix E.) If

permitted to stand, the decision below would allow

actionable constitutional claims based solely on negli-

gent medical treatment because the only factual dispute

presented to the Ninth Circuit was _ professional

disagreement between experts as to the appropriateness

of decedent’s diagnosis and treatment plan.

In Estelle v. Gamble supra, this court did not set

guidelines for determining what kind of medical care, or

lack thereof, constitutes deliberate indifference. This

case affords the court an appropriate opportunity to

define and set parameters on what constitutes deliberate

indifference in terms of medical care.

~ =

Il.

THE DECISION BELOW CONCERN-

ING WHAT CONSTITUTES DELI-

BERATE INDIFFERENCE TO A

PRISONER’S SERIOUS MEDICAL

NEEDS IS IN CONFLICT WITH AN

APPLICABLE DECISION OF THIS

COURT. IF PERMITTED TO STAND,

THE DECISION BELOW WOULD

ALLOW A POLICY OF DELIBERATE

INDIFFERENCE TO A PRISONER’S

SERIOUS MEDICAL NEEDS TO BE

ESTABLISHED WITHOUT PROOF

THAT THE POLICYMAKERS HAD

ACTUAL OR CONSTRUCTIVE NO-

TICE OF THE ALLEGED CONSTI-

TUTIONAL DEFICIENCY.

In City of Canton, Ohio v. Harris, 489 U.S. __, 109

S.Ct. 1197 (1989), this court held that a policy of

inadequate training which results from deliberate

indifference could be used to establish municipal

liability under 42 U.S.C. Section 1983. This court also

limited the inadequate training theory of liability by

ruling that proof that an injury or accident could have

been avoided by more or better training does not

constitute deliberate indifference, unless the need for

more or better training is obvious. Moreover, three (3)

justices ruled that policymakers must have had actual or

constructive notice of a relevant deficiency to establish

that the need for more or better training was obvious,

and that actual or constructive notice is proven by

showing that policymakers were aware of, and

acquiesced in, a pattern of constitutional violations.

ci ee

Contrary to these principles, the decision below

permitted the jury to find a policy or custom of deli-

berate indifference to a single prisoner’s serious medical

needs without any proof that County of Los Angeles

policymakers were aware of the need for more

psychiatrists. In addition, there was no evidence of a

pattern of constitutional violations regarding medical

care of prisoners. If permitted to stand, the decision

below would allow a policy or custom of deliberate

indifference to be established without proof of notice to

the policymakers of the relevant constitutional defi-

ciency.

In City of Canton, Ohio v. Harris, supra, a majority

of the justices did not establish guidelines for

determining when the need for more or better training

has become obvious. This case provides the majority of

the court an appropriate opportunity to define and

explain what kind of proof is needed to establish that the

need for more or better training is obvious, or that the

policymakers had actual or constructive notice of a

constitutional deficiency.

i?

CONCLUSION

For the reasons stated in this petition, a Writ of

Certiorari should issue to review the judgment and

reinstatement order of the Ninth Circuit Court of

Appeals.

DATED: December 1, 1989

Respectfully submitted,

DE WITT W. CLINTON,

County Counsel

S. ROBERT AMBROSE,

Assistant County Counsel

DENNIS M. GONZALES,

Senior Deputy County Counsel

KEVIN C. BRAZILE,*

Deputy County Counsel

Attorneys for Petitioners

* Counsel of Record

APPENDIX A

oft 4.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSEFINA CABRALES, et al.,

Plaintiffs-Appellees, No. 87-6061

V. ; D.C. No.

COUNTY OF LOS ANGELES; RONALD CV-84-8084-MRP

BLACK,

Defendants-Appellants.

JOSEFINA CABRALES,

Plaintiff-Appellant,

é Nos. 87-6371;

Cross-Appellant, 87-6306

” D.C. No.

County oF Los ANGELES; RONALD CV-84-8084-MRP

BLACK, ORDER

Defendants-Appellees,

Cross-Appellees.

-

On Remand from the United States Supreme Court

Filed September 21, 1989

Before: Jerome Farris and Charles Wiggins, Circuit Judges,

and M. D. Crocker,* District Judge.

*Hon. M. D. Crocker, United States Senior District Judge for the Eastern

District of California, sitting by designation.

1174!

A 2

11742 CABRALES V. COUNTY OF LOS ANGELES

ORDER

In Cabrales v. County of Los Angeles, 864 F.2d 1454 (9th

Cir. 1988), vacated 109 S. Ct. 2425 (1989), we upheld a jury

verdict in favor of Mrs. Cabrales on her section 1983 claim

against the County of Los Angeles. The Supreme Court

vacated our opinion and remanded for consideration in light

of City of Canton v. Harris, 109 S. Ct. 1197 (1989). That deci-

sion clearly does not undermine our separate conclusions

that, first, the County failed to preserve its sufficiency of the

evidence arguments because it did not move for a directed

verdict, and second, that the California statute of limitations

did not bar Mrs. Cabrales’s claim against defendant Black.

We thus need only consider whether Harris alters our conclu-

sions that the district court properly denied summary judg-

ment against Mrs. Cabrales because there were disputed

issues of fact as to whether the County had a policy manifest-

ing a deliberate indifference to the needs of pretrial detainees;

and whether the jury was properly instructed that the County

could be held liable under section 1983 only if there was suffi-

cient evidence of such a policy. We conclude that Harris does

not alter our previous opinion on either of these points.

In Harris, the Supreme Court determined that a municipal-

ity can be held liable for a constitutional policy if it is culpable

for an unconstitutional application of its policy. The Court

then held that a municipality is culpable if its failure ade-

quately to train police officers exhibits a “deliberate indiffer-

ence to the rights of persons with whom the police come into

contact.” Jd. at 1204. By contrast, in Cabrales we held that

there were disputed issues of fact as to whether the County's

policy of understaffing the jail with nsychiatrists was itseif

unconstitutional under the fourteenth amendment. To be

unconstitutional required a showing that the County had a

policy of “deliberate indifference” to the medical needs of

prisoners. 864 F.2d at 1461. Because the policy of understaf-

fing was considered unconstitutional, there was no need for us

A 3.

CABRALES V. COUNTY OF LOS ANGELES 11743

to determine separately whether the County could be held

culpable for an unconstitutional application of its policy.

Accordingly, we order that our previous decision be REIN-

STATED.

Cees tg

os |e

COUNTY OF LOS ANGELES and

Ronald Black, Commander, Los Angeles

County Men’s Central Jail, petitioners,

v. Josefina CABRALES. No. 88-1581.

Case below, 864 F.2d 1454.

May 30, 1989. On petition for writ of certiorari to the

United States Court of Appeals for the Ninth Circuit.

The petition for writ of certiorari is granted. The judg-

ment is vacated and the case is remanded to the United

States Court of Appeals for the Ninth Circuit for further

consideration in light of City of Canton, Ohio v. Harris,

489 U.S. __, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989).

Justice MARSHALL and Justice STEVENS dissent

and would deny certiorari.

Ye

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSEFINA CABRALES, et al.,

Plaintiffs-Appellees, No. 87-6061

Vv. { D.C. No.

COUNTY OF LOS ANGELES; RONALD CV-84-8084-MRP

BLACK,

Defendants-Appellants.

JOSEFINA CABRALES,

Plaintiff-Appellee,

Cross-Appellant, sp oie

‘ D.C. No.

County OF Los ANGELES; RONALD CV-84-8084-MRP

BLACK,

Defendants-Appellants, OPINION

Cross-Appellees.

Appeal from the United States District Court

for the Central District of California

Mariana R. Pfaelzer, District Judge, Presiding

Argued and Submitted

August 4, 1988—Pasadena, California

Filed December 28, 1988

Before: Jerome Farris and Charles Wiggins, Circuit Judges,

and M. D. Crocker,* District Judge.

*Hon. M. D. Crocker, United States District Judge for the Eastern Dis-

trict of California, sitting by designation.

15601

-C 2-

15602 CABRALES V. COUNTY OF LOS ANGELES

Opinion by Judge Wiggins

SUMMARY

Courts and Procedure/Attorneys’ Fees/Civil Rights

Affirming the district court’s denial of judgment notwith-

Standing the verdict, the appeals court held that sufficiency of

evidence arguments were waived because of failure to prop-

erly preserve the legai issue of the sufficiency of the evidence

in a motion for a directed verdict at the close of all of the evi-

dence.

Josefina Cabrales brought a civil rights suit against the

County of Los Angeles for the death by suicide of her son

while he was a pretrial detainee in a Los Angeles County jail.

Cabrales’ suit claimed the County and its jail employees were

deliberately indifferent to her son’s medical needs and liable

in damages for his death. The County’s pretrial motion for

summary judgment was denied and the case went to jury trial.

At the close of all the evidence County failed to make a

motion for a directed verdict. When verdict was returned for

Cabrales, County moved for a judgment n.o.v., which was

denied by the trial court. On appeal, County contended,

among numerous arguments, that its motion for judgment

n.o.v. should have been granted and that, alternatively, its

earlier motion for summary judgment should have been

granted. On cross-appeal, Cabrales contends that the court

abused its discretion in reducing by 25 percent the amount of

attorneys’ fees awarded.

[1] The court affirmed the denial of the judgment n.o.v.

because defendants failed to make a motion for a directed

verdict at the close of all the evidence. The court observed

that they failed to show that one of two exceptions to this

motion were present. [2] The court found that the district

f° 3.

CABRALES V. COUNTY OF Los ANGELES 15603

court did not abuse its discretion in the summary judgment

hearing by relying on Cabrales’ experts’ affidavits in denying

the motion for summary judgment. [3] The court also deter-

mined that the district court was correct in its finding of

municipal liability because of a policy or custom that may

have been the moving force behind the deprivation of dece-

dent’s constitutional rights without due process. [4] Because

Cabrales was unable to make out her claims against various

individual defendants, the court found that the district court

did not abuse its discretion by reducing the attorneys’ fee

award by 25 percent to reflect the limited success.

COUNSEL

Kevin C. Brazile, Deputy County Counsel, County of Los

Angeles, California, for the defendants-appellants.

Stephen Yagman and Marion Yagman, Yagman & Yagman,

P.C., Los Angeles, California, for the plaintiff-appellee Jose-

fina Cabrales.

OPINION

WIGGINS, Circuit Judge:

Defendants-appellants County of Los Angeles and Ronald

Black appeal from summary judgment and denial of their

motion for a judgment notwithstanding the verdict (JNOV).

Josefina Cabrales, the mother of Sergio Alvarez Cabrales (de-

cedent), brought suit under 42 U.S.C. § 1983 for the death of

her son while he was a pretrial detainee in Los Angeles

County jail under the command of appellant Ronald Black.

The plaintiff claimed that the County and its employees at the

jail were deliberately indifferent to her son’s medical needs

and they were liable in damages for his suicide. The County

-C 4-

15604 CABRALES V. COUNTY OF LOS ANGELES

and Black filed a motion for summary judgment. It was

denied. The case went to jury trial and a verdict was returned

for the plaintiff. The court entered judgment on the verdict in

the amount of $150,000 against the County and $7,500

against Black. The appellants moved for a JNOV. It too was

denied.

The plaintiff/cross-appellant appeals from an award of

attorneys’ fees in the case. After the verdict, the plaintiff

moved for an award of attorneys’ fees pursuant to 42 U.S.C.

§ 1988. The trial court determined the “lodestar” amount to

be $200,500, but reduced that figure by 25% to $152,284.75

because of the limited success of the plaintiff in her suit. The

court also declined to award $33,000 in expert witness fees to

the plaintiff. We AFFIRM.

FACTS

The facts are generally not in dispute. On October 27,

1983, the decedent was incarcerated in the Los Angeles

County Men’s Central Jail on a burglary charge. Several days

later he fainted and was briefly examined by a doctor. The

doctor transferred the decedent to the jail medical clinic

where he apparently became “assaultive and combative.” He

was put in restraints for his and others’ protection. Several

days later he was released from his restraints and transferred

to another part of the clinic after he was examined by a psy-

chiatrist. He subsequently was released back into the general

population and spent some time at the Wayside Honor Ranch

_ jail facility.

On December 12, 1983, he was transferred back to the

Men’s Central Jail where he was again examined by a psychia-

trist. The psychiatrist concluded that decedent had a

“schizotypal personality” and noted that the decedent com-

plained of family and legal problems. The decedent, however,

denied any suicidal desires or tendencies. The decedent was

then placed in a “behavior observation module” for jail

-C 5-

CABRALES V, COUNTY OF LOS ANGELES 15605

inmates considered to be mentally disturbed. Inmates in the

module were visually checked every half hour. On Decem-

ber 16, while in this module, the defendant attempted to com-

mit suicide. Two deputies caught him about to leap from the

top of the cell bars with blanket strips tied around his neck.

The decedent was subsequently examined by a psychiatrist

who determined that the suicide attempt was simply a

“gesture” undertaken to get out of the behavior observation

module and back into the general population.

Two days later, the decedent was released back into the

general population after a doctor concluded that he was not

a danger to himself or others. On December 24, 1983, while

in the general population, the decedent was involved in a

fight with other inmates where another inmate was stabbed.

On December 26, a hearing was held on the question whether

the decedent was involved in the fight. The hearing officer

found that the decedent was involved and “sentenced” him to

ten days in the “disciplinary isolation module.” Inmates

incarcerated in the module were denied contact with other

prisoners and placed on a restricted diet. On January 3, 1984,

the decedent was found dead, hanging from a towel rack in

his cell by an ace bandage around his neck.

On October 18, 1984, the plaintiff filed this 42 U.S.C.

§ 1983 action. The gist of the plaintiff's action was that the

County and its jail employees had demonstrated “deliberate

indifference” to the decedent’s serious medical and psychiat-

ric needs. The plaintiff alleged that the County had a policy or

custom that resulted in serious understaffing of psychiatric

personne] at the facility. The plaintiff alleged that the under-

staffing deprived the decedent of adequate psychiatric care

because psychiatrists had too little time to analyze and treat

inmates’ psychological problems. Also, she alleged that the

County demonstrated deliberate indifference to the plaintiff's

psychiatric needs by putting him in disciplinary isolation

after his first suicide attempt was allegedly caused by isolation

from the general jail population. On May 29, 1986, the defen-

-C 6-

15606 CABRALES V. COUNTY OF LOS ANGELES

dant filed a motion for summary judgment. The court granted

the motion as to one defendant, Dr. Vargas, the jail psychia-

trist, finding that the plaintiff's action against him was barred

by the statute of limitations. Cabrales v. County of Los Ange-

les, 644 F. Supp. 1352, 1356-57 (C.D. Cal. 1986). The court

denied the motion as to all the other defendants. It found that

there were general issues of material fact whether the dece-

dent had received adequate medical and psychiatric care. The

court also found a genuine issue of material fact as to whether

the decedent had received due process and whether the

County had a policy or custom of denying due process in this

context. Jd. at 1360.

On March 27, 1987, jury trial commenced. At the close of

the plaintiff's evidence, the defendants moved for a directed

verdict. The court did not immediately rule on the motion,

but before the close of the defendants’ evidence, the court

denied the motion. The defendants did not make a motion for

directed verdict at the close of all the evidence. Judgment on

the jury verdict for the plaintiff was entered on April 16,

1987. On April 20, 1987, the County and Black, the only

defendants left in the case, filed a motion for a JNOV. In con-

sidering the defendants’ motion, the court found that it had

ruled on the defendants’ motion for a directed verdict made

at the close of the plaintiff's evidence before the close of the

defendants’ case. It found that the defendants had failed to

make a motion for a directed verdict at the close of all the evi-

dence, that the court never “reconsidered” its earlier denial at

the close of all the evidence, and the defendants had not asked

for a jury instruction directing the jury to return a verdict for

the defendants. Because the defendants failed to make a

motion for a directed verdict at the close of all the evidence,

the court found that “the motion for a JNOV is not properly

before this court, and the court denies and strikes the

motion.” In addition, the court found the motion to be with-

out merit. The appellants timely appeal.

On May 14, 1987, the plaintiff filed a motion for attorneys’

fees under 42 U.S.C. § 1988. On July 30, 1987, the trial court

rat es ter a aaattate,

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CABRALES V. COUNTY OF LOS ANGELES 15607

awarded $152,284.75 in attorneys’ fees. The court deter-

mined the “lodestar” figure to be $200,500 based on the num-

ber of hours devoted to the case multiplied by a reasonable

hourly fee. The court reduced the figure by 25%, reflecting the

limited success of the plaintiff's suit. The court noted the

plaintiff had originally brought claims against twenty or more

individual sheriff's deputies who worked at the jail, and that

the plaintiff ultimately succeeded only on her claim that the

County, through its policymaker Black, maintained a policy

or custom of deliberate indifference to the safety and medical

needs of inmates like the decedent. The court determined

that the plaintiff's success would have been significantly

enhanced if she had prevailed on her claims against the depu-

ties. The court also denied the plaintiffs application for

$33,000 in fees for the work of experts used in the case. The

court found that the plaintiff had failed to provide adequate

documentation for these fees. “The court has no way to assess

the reasonableness of the expenditures and declines, in its dis-

cretion, to award any of them.” The plaintiff/cross-appellant

timely appeals. We have jurisdiction over both appeals under

28 U.S.C. § 1291.

ANALYSIS

I. JNOV.

Fed. R. Civ. P. 50(b) provides in part:

Not later than 10 days after entry of judgment, a

party who has moved for a directed verdict may

move to have the verdict... set aside....

In considering the appellants’ motion for a JNOV, the trial

court found, as a matter of fact, that the defendants had not

made a motion for a directed verdict at the close of all the evi-

dence. It also found that it had not reconsidered its earlier

denial of the appellants’ motion for a directed verdict made

at the close of the plaintiff's case. A district court’s findings of

-C 8-

15608 CABRALES V. COUNTY OF Los ANGELES

fact are reviewed under the clearly erroneous standard.

LaDuke v. Nelson, 762 F.2d 1318, 1321 (9th Cir. 1985),

modified, 796 F.2d 309 (9th Cir. 1986); Fed. R. Civ. P. 52(a).

Under the clearly erroneous standard of review, an appellate

court must accept the lower court’s findings of fact unless

upon review the court is left with a definite and firm convic-

tion that a mistake has been committed. United States v.

United States Gypsum Co., 333 U.S. 364, 395 (1948); Dollar

Rent A Car of Wash., Inc. v. Travelers Indem. Co., 774 F.2d

1371, 1374 (9th Cir. 1985).

{1] The Ninth Circuit “observe[s] strictly the threshold

requirement for a JNOV that a motion for a directed verdict

must be made at the close of all the evidence.” Lifshitz v. Wal-

ter Drake & Sons, Inc., 806 F.2d 1426, 1428 (9th Cir. 1986);

see also Johnson v. Armored Transp. of Cal., Inc., 813 F.2d

1041, 1043 (9th Cir. 1987). The purposes behind the require-

ment for a motion for a directed verdict at the close of all the

evidence are twofold. The first purpose is to preserve the suf-

ficiency of the evidence as a matter of law. A mot for a

JNOV will then allow the district court to reexamin. ¢ first

decision not to direct a verdict. The second purpose is to call

attention to the claimed deficiency in the evidence. Lifshitz,

806 F.2d at 1428-29. There are only two exceptions to these

requirements. First, where the district court has taken a

motion for a directed verdict made at the close of the plain-

tiffs evidence under advisement and reserves ruling on it

until the close of all the evidence, the first motion is consid-

ered to still be in effect. Second, where an ambiguous or inart-

ful request for a directed verdict is made that adequately puts

the issue of the sufficiency of the evidence before the trial

court, the court may still consider a motion for a JNOV.

Herrington v. County of Sonoma, 834F.2d 1488, 1500

(9th Cir. 1988). In the present case, the defendants failed to

make a motion for a directed verdict at the close of all the evi-

dence. There was no showing that either of the two exceptions

were present. The trial court properly denied the appellants’

motion for a JNOV.

-C 9-

CABRALES V. COUNTY OF Los ANGELES 15609

By failing to make a motion for a directed verdict at the

close of all of the evidence, “a party cannot question the suff-

ciency of the evidence either before the district court... oron

appeal.” Farley Transp. Co. v. Santa Fe Trail Transp. Co.,

786 F.2d 1342, 1345 (9th Cir. 1986)(quoting Myers v. Norfolk

Livestock Market, Inc., 696 F.2d 555, 558 (8th Cir. 1982)

(emphasis added)); see also Herrington, 834 F.2d at 1500. On

appeal, the appellants raise manv sufficiency of the evidence

arguments. We hold that these arguments are waived by the

appellants’ failure properly to preserve the legal issue of the

sufficiency of the evidence.

The only exception to this rule is the plain error doctrine.

Only where there is such plain error apparent on the face of

the record that failure to review would result in a manifest

miscarriage of justice should the appellate court analyze the

evidence. Williams v. Hughes Helicopters, Inc., 806 F.2d

1387, 1392 (9th Cir. 1986). This extraordinarily deferential

standard of review addresses whether there is an absolute

absence of evidence to support the jury’s verdict. Herrington,

834 F.2d at 1500. In the case at bar, the evidence was suffi-

cient both for the jury and later for the court to find that the

appellants were deliberately indifferent to the medical and

psychological needs of the decedent. The evidence meets the

requirements of the plain error doctrine.’

"Fed. R. App. P. 4(aX(4), inter alia, provides that if a timely motion for

a JNOV is made, the time for notice of appeal begins to run from the date

of the grant or denial of the motion. The appellee argues that since the

motion for a JNOV was not properly before the trial court and was stricken

the tolling provision of 4(a)4) is not applicable and the appellants’ appeal

is untimely. The appellee moved to have the appellants’ appeal dismissed

on this ground. On September 2, 1987, a motions panel of this court cor-

rectly rejected this argument. Rule 4(a)4) straightforwardly states that the

filing of a motion for JNOV “stops the clock” on the 30-day notice of appeal!

requirement. The rule does not toll the 30-day period only when a motion

for a JNOV was procedurally correct. Rather, if such a motion is filed, the

tolling provisions of the rule apply.

-C 10-

15610 CABRALES V. COUNTY OF LOS ANGELES

II. Summary Judgment.

The appellants argue that their motion for summary judg-

ment should have been granted. They contend that the plain-

tiff did not raise a genuine issue of material fact that the

County had a policy or custom of deliberate indifference to

pretrial detainees’-medical and psychological needs. Also,

that no genuine issue was raised that any County policy or

custom was the proximate cause of the decedent’s suicide.

The appellate court must determine, viewing the evidence in

the light most favorable to the nonmoving party, whether

there are any genuine issues of material fact and whether the

district court properly applied the relevant substantive law.

Ashton v. Cory, 780 F.2d 816, 818 (9th Cir. 1986).

A. Affidavits

The appellants challenge the affidavits submitted by the

appellee to oppose their motion for summary judgment. They

argue that the affidavits made by the plaintiff's experts were

not based on specific facts or on personal knowledge and are

therefore hearsay. Evidentiary decisions are reviewed for an

abuse of discretion and should not be reversed absent some

prejudice. Kisorv. Johns-Manville Corp., 783 F.2d 1337,

1340 (9th Cir. 1986). A trial court has broad discretion in

admitting and excluding expert testimony and its decision

will be sustained unless it is manifestly erroneous. Taylor v.

Burlington N. R.R. Co., 787 F.2d 1309, 1315 (9th Cir. 1986).

The appellants’ contention is without merit.

The affidavits at issue were made by a California medical

doctor, board-certified in psychiatry, and a PhD. in criminal

justice who taught that subject at American University in

Washington, D.C. The affidavits were identical and stated

that the expert had apprised himself of the facts in the case in

forming his opinion. The affidavits went on to state that the

decedent had received inadequate psychological care while in

the jail. They stated that putting the decedent in disciplinary

-C 11-

CABRALES V. COUNTY OF LOS ANGELES 15611

isolation contributed to his suicide. They analyzed the psy-

chological and medical staffing at the jail and concluded that

the facility was seriously understaffed. They found the under-

staffing to constitute a deliberate decision or policy on the

part of the appellants that constituted deliberate indifference

to the decedent. They noted that some 1500-1600 detainees

a month showed some need for psychiatric attention and the

understaffing would allow a psychiatrist to spend approxi-

mately 12 minutes a month with a person in need of psychiat-

ric attention. They also stated that the “treatment” afforded

to the decedent was inadequate. Thus, the affidavits were

based on specific facts and pointed to policies or customs on

the part of the appellants that contributed to the decedent’s

suicide.

[2] The appellants’ contention that the affidavits were not

based on personal knowledge and are hearsay is irrelevant.

Under Fed. R. Evid. 703, the “facts or data in the particular

case upon which an expert bases an opinion or inference may

be those perceived by or made known to the expert at or

before the hearing. If of a type reasonably relied upon by

experts in the particular field in forming opinions or infer-

ences upon the subject, the facts or data need not be admissi-

ble in evidence.” Therefore, these experts need not have

obtained their knowledge of conditions of the jail on a first-

hand basis. The court did not abuse its discretion in relying

on these affidavits in denying the appellants’ motion for sum-

mary judgment.

B. Municipal Liability

A municipality or governmental entity cannot be found lia-

ble under section 1983 on a respondeat superior theory.

Rather, such liability can be imposed only for injuries

inflicted pursuant to a governmental “policy or custom.”

Monell v. Dept. of Social Servs. of New York, 436 U.S. 658,

694 (1978). In addition, there must be shown to be an affir-

mative link between the policy or custom and the particular

-C 12-

15612 CABRALES V. COUNTY OF LOS ANGELES

constitutional violation alleged. City of Oklahoma City v.

Tuttle, 471 U.S. 808, 823 (1985). The alleged policy or cus-

tom must be the “moving force” of the constitutional viola-

tions in order to establish liability under section 1983. Polk

County v. Dodson, 454 U.S. 312, 326 (1981) (citing Monell,

436 U.S. at 694). Though proof of a single incident is insuffi-

cient to establish a custom or policy, Tuttle, 471 U.S. at 821,

liability may be predicated on one violation if it can be shown

that the violation was a product of an unconstitutional policy

or custom, Pembaur v. City of Cincinnati, 475 U.S. 469, 480-

81 (1986).

Such a policy may be shown by demonstrating that the

County and its administrative organ, the Men’s Central Jail

(run by appellant Black), manifested a “deliberate indif-

ference” to the medical needs of the inmates at the jail.

Estelle v. Gamble, 429 U.S. 97, 104 (1976).? Prison or jail

officials “show deliberate indifference to serious n edical

needs if prisoners are unable to make their medical needs

known to the medical staff. Access to the medical staff has no

meaning if the medical staff is not competent to deal with the

prisoners’ problems.” Hoptowit v. Ray, 682 F.2d 1237, 1253

(9th Cir. 1982) (citation omitted).

On appeal, the appellants make several related arguments.

First they claim that no policymaker, Black included, estab-

lished or adopted a policy of deliberate indifference to the

decedent’s needs. This contention misses the point. The

?Estelle was an eighth amendment prison case. The fourteenth amend-

ment due process clause applies to pretrial detainee cases and not the eighth

amendment. Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979). However, the

fourteenth amendment due process rights of pretrial detainees are analo-

gized to those of prisoners under the eighth amendment. Roberts v. City of

Troy, 773 F.2d 720, 723 (6th Cir. 1985). “In evaluating the constitutional-

ity of conditions or restrictions of pretrial detention that implicate only the

protection against deprivation of liberty without due process of law, we

think that the proper inquiry is whether those conditions amount to pun-

ishment of the detainee.” Bell, 441 U.S. at 535.

-C 13-

CABRALES V. COUNTY OF LOS ANGELES 15613

appellants seem to argue that only affirmative acts constitute

a policy or custom for section 1983 purposes, and no policy-

maker “affirmatively” adopted a policy of deliberate indiffer-

ence. Such is not the case. The very notion of deliberate

“indifference” connotes a regime where neglect of detainees’

medical and psychological needs proves a constitutional vio-

lation. Also, acts of omission, as well as commission, may

constitute the predicate for a finding of liability under section

1983. See Estelle, 429 U.S. at 106 (“In order to state a cogni-

zable [1983] claim, a prisoner must allege acts or omissions

sufficiently harmful to evidence deliberate indifference to

serious medical needs.” (emphasis added)); Roberts, 773 F.2d

at 725.

[3] The appellants also argue that there was no showing of

a policy of deliberate indifference to the decedent’s medical

and psychiatric needs because he was not denied access to

medical and psychiatric help. They point to the uncontested

evidence in the record that the decedent was evaluated on

several occasions by various medical personnel. The appel-

lants’ contention is without merit. As Hoptowit noted, access

to medical staff is meaningless unless that staff is competent

and can render competent care. Hoptowit, 682 F.2d at 1253.

The affidavits relied on by the district court adequately dem-

onstrated that the medical understaffing at the jail directly

contributed to the decedent’s suicide. The psychiatric staff

could only spend minutes per month with disturbed inmates.

The district court could conclude that lack of time and

resources meant, in the decedent’s case, that any psychologi-

cal illness he had would go undiagnosed and untreated. The

omission by the County and its policymakers in providing

adequate medica! care at the Men’s Central Jail was the pol-

icy or custom that was the “moving force” behind the depri-

vation of the decedent’s constitutional rights without due

process. The trial court properly denied the appellants’

motion for summary judgment.

-C 14-

15614 CABRALES V. COUNTY OF LOS ANGELES

Ill. Jury Instruction.

The appellants coniend that the jury verdict should be

reversed because the court gave an improper jury

instruction.’ The trial court has broad discretion in formulat-

ing instructions and will be reversed only upon a showing of

an abuse of discretion. United States v. Wellington, 754 F.2d

1457, 1463 (9th Cir.), cert. denied,.474 U.S. 1032 (1985). The

appellants argue that the instruction allowed the jury to

impose liability on the County and Black for the “totality of

conditions” at the jail. They note that the Ninth Circuit has

rejected such a standard of liability. Hoptowit, 682 F.2d at

1246-47; Wright v. Rushen, 642 F.2d 1129, 1132-33 (9th Cir.

1981). The appellants’ claim is without merit.

The appellants are correct to claim that Hoptowit and

Wright disapprove of a “general conditions” standard of lia-

bility:

Courts may not find Eighth Amendment violations

based on the “totality of conditions” at a prison...

There is no Eighth Amendment violation if each of

these basic needs is separately met. If the challenged

condition does not deprive inmates of one of the

>The pertinent jury instruction stated:

The prohibition against cruel and unusual punishment is not lim-

ited to specific acts directed at selected individuals, but is equally

pertinent to general conditions of confinement that may prevail at

a jail. The totality of what jail personnel do or fail to do with

respect to an inmate pursuant to the custom, practice or policy of

the county may constitute deliberate indifference on the part of

the county.

Even if the acts or omissions of no single employee constitute

deliberate indifference to the serious medical needs or safety of an

inmate, the combined acts or omissions of several employees act-

ing pursuant to governmental practice, policy or custom may con-

stitute deliberate indifference to the inmate’s serious medica!

needs or safety.

-C 15-

CABRALES V. COUNTY OF LOS ANGELES 15615

basic Eighth Amendment requirements, it is

immune from Eighth Amendment attack. A number

of conditions, each of which satisfy Eighth Amend-

ment requirements, cannot in combination amount

to an Eighth Amendment violation.

Hoptowit, 682 F.2d at 1246-47 (citation and footnote omit-

ted). However, the instruction at issue does not predicate lia-

bility on the general conditions at the jail. Rather, it states

that as to the claim of “deliberate indifference” to the dece-

dent’s medical needs, that fact may be shown by the /ora/ity

of what employees at the jail did or did not do. The instruc-

tion does not address a// conditions of the facility; rather, it

directs the jury to assess whether there was a policy of deliber-

ate indifference. The instruction follows Hoptowit in this

respect because it focuses on one of the “basic needs” of

inmates at the jail. Thus, within the context of one of the

“basic needs” protected by the Eighth Amendment, the

“combined acts or omissions” of jail employees are pertinent

to whether the decedent was deprived of his life and liberty

without due process of law. The trial court did not abuse its

discretion in giving this instruction.

IV. Statute of Limitations.

The plaintiff first filed her complaint on October 18, 1984.

On August 8, 1986, she filed her eighth amended complaint.‘

This was the first time that she had named appellant Black as

a defendant. Appellant Black moved for summary judgment

claiming that the plaintiff's cause of action against him was

barred by the statute of limitations. He renews that claim on

appeal.® A ruling on the appropriate statute of limitations is

“The trial court allowed the plaintiff to amend her complaint up until the

time of trial because of discovery abuses on the part of the County.

‘The appellee argues that the statute of limitations issue was not raised

in the pretrial order and, therefore, is not preserved for appeal. This con-

tention is incorrect. The appellants appeal the denial of summary judgment

where this issue was addressed. Thus, all issues raised in that interlocutory

decision are properly before this court.

-C 16-

15616 CABRALES V. COUNTY OF LOS ANGELES

a question of law reviewed de novo. Jn re Swine Flu Prods.

Liab. Litig., 764 F.2d 637, 638 (9th Cir. 1985).

As noted, the appellee filed suit in 1984. In 1985, the

Supreme Court decided Wilson v. Garcia, 471 U.S. 261

(1985). In Wilson, the Court addressed the issue of statute of

limitations for section 1983 suits. Because section 1983 does

not contain a statute of limitations, the practice has been to

look to state law for the appropriate limitations period. In

Wilson, the Court decided that the appropriate state statute

of limitations is that for personal injury actions. Jd. at 280. In

California, the personal injury statute of limitations is one

year. Cal. Civ. Proc. Code § 340(3). Thus, under Wilson,

because the plaintiffs cause of action arose on January 3,

1984, the date of her son’s death, her cause of action against

Black would be time-barred in that he was first made a defen-

dant some two-and-one-half years later. However, the lower

court held that, under California law, the naming of Black

“related back” to the plaintiffs non-time-barred original

complaint. Cabrales, 644 F. Supp. at 1360.

The district court noted that Fed. R. Civ. P. 15(c) addresses

the issue of relation back of amendments to complaints.’ The

® Wilson was decided after the plaintiff first filed her cause of action. The

issue of the retroactivity of Wilson was addressed by this court in Usher v.

City of Los Angeles, 828 F.2d 556 (9th Cir. 1987). In Usher, the court held

that for section 1983 suits “in California, the applicable statute of limita-

tions is either three years [the pre- Wilson statute of limitations for section

1983 actions in California] from the time the cause of action arises or one

year from Wilson, depending on which period expires first.” Jd. at 561. In

this case, the former period would be January 3, 1987. Wilson was decided

on April 17, 1985. Thus, the latter period would be April 17, 1986. Under

Usher, the shorter of the two periods applies. Therefore, the latter period

would apply and the plaintiff's complaint against Black would be approxi-

mately four months late.

7Rule 15(c) (Relation Back of Amendments) provides:

Whenever the claim or defense asserted in the amended pleading

arose out of the conduct, transaction, or occurrence set forth . . . in

-C 17-

CABRALES V. COUNTY OF LOS ANGELES 15617

court determined that if 15(c) applied to this case the naming

of Black would probably not relate back because there had

been no showing that he was on notice of the complaint as

required by 15(c). Jd. at 1358. The court, however, held that

15(c) did not apply because “the state statute of limitations

controls the question of whether the individual defendants

were timely named... and under the California statute of

limitations, plaintiff had a substantive right to name these

defendants, the Court holds that the defendants were in fact

timely named.” Jd. (footnote omitted). Under California rela-

tion back rules, there is no notice-to-defendants requirement

as in the federal rule.* In reaching this conclusion, the court

relied on Lindleyv. General Elec. Co., 780F.2d 797

(9th Cir.), cert. denied sub nom. Stone & Webster Eng’r

Corp. v. Lindley, 476 U.S. 1186 (1986).

In Lindley, the plaintiffs named Does in their complaint

that was first filed in state court. Based on diversity, the

defendant removed the case to federal court where the plain-

tiff attempted to name real people to replace the Does. Under

California law, such a substitution is allowed for up to three

years from the commencement of the action. Cal. Civ. Proc.

Code §§ 474, 581(a) (West 1988); see Munoz v. Purdy, 91 Cal.

the original pleading, the amendment relates back to the date of

the original pleading. An amendment changing the party against

whom a claim is asserted relates back if... that party (1) has

received such notice of the institution of the action... and

(2) knew or should have known that, but for a mistake concerning

the identity of the proper party, the action would have been

brought against the party. _

®Cal. Civ. Proc. Code § 474 (Defendant designated by fictitious name:

amendment) provides:

When the plaintiff is ignorant of the name of a defendant, he must

state that fact in the complaint . . . and such defendant may be des-

ignated in any pleading or proceeding by any name, and when his

true name is discovered, the pleading or proceeding must be

amended accordingly. . . .

-C 18-

15618 CABRALES V. COUNTY OF LoS ANGELES

App. 3d 942, 946, 154 Cal. Rptr. 472, 474 (1979). Lindley

held that such a substitution was proper even though it vio-

lated Rule 15(c). We found that the limited purpose of 1 5(c)

was “to provide a uniform solution to statute of limitations

problems when amendments are sought after the limitation

period has expired; [the rule] was not designed to determine

the /ength of the limitations period to be applied.” Lindley,

780 F.2d at 800 (quoting Rumberg v. Weber Aircraft Corp.,

424 F. Supp. 294, 301 (C.D. Cal. 1976) (emphasis in origi-

nal)). The court found that the California relation back rule

did not directly conflict with 15(c) because 15(c) does not

determine the timeliness of causes of action. Jd. at 801. The

district court properly found that Lindley applies to the case

at bar. As the Wilson Court stated, “the length of the limita-

tions period, and closely reiated questions of tolling and

application, are to be governed by state law.” Wilson,

471 U.S. at 269 (emphasis added) (footnote omitted). The

California relation back doctrine is such a tolling issue that,

under Wilson, must be decided under state law. Also, as the

district court noted, statutes of limitation define the substan-

tive rights of parties. The California pleading practice allow-

ing new defendants to be named after the original complaint

is filed without violating the statute of limitations is such a

substantive state policy that is applicable in the federal

courts. Guaranty Trust Co. v. York, 326 U.S. 99, 110 (1945);

see also Lindley, 780 F.2d at 802 (citing Guaranty Trust). The

district court properly found that the plaintiff's cause of

action against Black was not barred by the statute of limita-

tions.

V. Attorney and Expert Witness Fees.

A. Attorneys’ Fees

In a civil rights action or proceeding, “the court, in its dis-

cretion, may allow the prevailing party, other than the United

States, a reasonable attorney’s fee as part of the costs.” 42

U.S.C. § 1988 (1982). We review the district court’s assess-

-C 19-

CABRALES V. COUNTY OF Los ANGELES 15619

ment of attorneys’ fees, in this case $152,284.75 representing

a 25% reduction for plaintiff's limited success, for an abuse of

discretion. Hensley v. Eckerhart, 461 U.S. 424, 437 (1983):

Jordan v. Multnomah County, 815 F.2d 1258, 1261 (9th Cir.

1987). The appellee/cross-appellant contends that the district

court abused its discretion by reducing the “lodestar” figure

by 25%. The appellants/cross-appellees, on the other hand,

contend that the district court abused its discretion by failing

to reduce the lodestar figure by an additional 25%. We reject

both contentions, and hold that the trial court did not abuse

its discretion by awarding plaintiff $152,284.75 for her attor-

neys’ fees.

“The most useful starting point for determining the

amount of a reasonable fee is the number of hours reasonably

expended on the litigation multiplied by a reasonable hourly

rate.” Hensley, 461 U.S. at 433. This “presumptively reason-

able fee,” known as the lodestar figure, may then in “rare” and

“exceptional” cases be “adjusted” on the basis of “other

considerations.” Pennsylvania v. Delaware Valley Citizens’

Council for Clean Air, 478 U.S. 546, 564-65 (1985) (quoting

in part Blum v. Stenson, 465 U.S. 886 (1984)). In Hensley, the

Supreme Court noted that, while these “other

considerations” included factors previously used in assessing

the overall reasonableness of fees, see Jonson v. Georgia High-

way Express, Inc., 488 F.2d 714, 717-19 (Sth Cir. 1974);

accord Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th

Cir. 1975), cert. denied, 425 U.S. 951 (1976),? many of these

*These factors included:

(1) the time and labor required, (2) the novelty and difficulty of the

questions involved, (3) the skill requisite to perform the legal ser-

vice properly, (4) the preclusion of other employment by the attor-

ney due to acceptance of the case, (5) the customary fee, (6)

whether the fee is fixed or contingent, (7) time limitations imposed

by the client or the circumstances, (8) the amount involved and

the results obtained, (9) the experience, reputation and ability of

the attorneys, (10) the “undesirability” of the case, (11) the nature

and length of the professional relationship with the client, and (12)

awards in similar cases.

Kerr, $26 F.2d at 70.

-C 20-

15620 CABRALES V. COUNTY OF Los ANGELES

same same factors are now “subsumed within the initial cal-

culation of hours reasonably expended at a reasonable hourly

rate,” 461 U.S. at 424 n.9. It is now clear that among these

factors that “cannot serve as independent bases for adjusting

fee awards are: (1) the novelty and complexity of the issues,

(2) the special skill and experience of counsel, (3) the quality

of representation, and (4) the results obtained.” Jordan, 815

F.2d at 1262 n.6 (citing Blum, 465 U.S. at 898-900). Presum-

ably each of these factors are taken into account in either the

reasonable hours component or the reasonable rate compo-

nent of the lodestar calculation. We note, however, that the

district court here “adjusted” the lodestar calculation of

$200,500 downward by 25% to account for the “results

obtained.”

Only recently this court reversed a downward adjustment

of a lodestar figure because in that case the district court had

accounted for lack of success twice — once in calculating the

lodestar itself and again in assessing a downward adjustment.

See Cunningham v. County of Los Angeles, No. 87-6596, slip

op. at 12786-88 (9th Cir. Oct. 11, 1988). Here, by contrast,

the district court made only one reduction for lack of success,

albeit incorrectly as an adjustment to the lodestar. Mathemat-

ically, it is inconsequential whether the lodestar figure itself is

adjusted for lack of success or whether the reasonable hours

component of the lodestar is adjusted for lack of success.”®

What matters is that the district court did not “count” for lack

of success twice. We therefore hold that the district court’s

1°The district court’s calculation appeared as follows:

Attorney Hours Rate/Hour Total

Robert Kivo 87.00 $175 $ 15,225.00

Marion Yagman 317.00 1195 55,475.00

Stephen Yagman 18.25 200 3,650.00

554.00 225 124,650.00

Linda Hirsch 20.00 75 1,500.00

TOTAL 200,500.00

Reduction for limited Success x .75

-C 21-

CABRALES V. COUNTY OF Los ANGELES 15621

reduction of the lodestar, if warranted, constitutes a

“harmless error.”

This brings us to the parties’ main contention: Did the dis-

trict court abuse its discretion in determining that a 25%

reduction for lack of success was warranted under the circum-

stances? In cases in which a plaintiff's success is limited, we

have instructed the district court to apply a two-part analysis:

First, the court asks whether the claims upon which

the plaintiff failed to prevail were related to the

plaintiffs successful claims. If unrelated, the final

fee award may not include time expended on the

unsuccessful claims. If the unsuccessful and success-

ful claims are related, then the court must apply the

second part of the analysis, in which the court evalu-

ates the “significance of the overall relief obtained by

the plaintiff in relation to the hours reasonably

expended.” If the plaintiff obtained “excellent

results,” full compensation may be appropriate, but

TOTAL $150,375.00

Expenses 1,909.75

GRAND

TOTAL $152,284.75

According to the analysis established in the text, the attorneys’ fee award

should have been calculated as follows:

Attorney Hours x.75 Reduction Rate/Hour Total

Robert Kivo 87.00 65.2500 $175 $ 11,418.75

Marion Yagman 317.00 237.7500 175 41,606.25

Stephen Yagman 18.25 13.6875 200 2,737.50

554.00 415.5000 225 93,487.50

Linda Hirsch 20.00 15.0000 75 1,125.00

TOTAL 150,375.00

Expenses 1,909.75

GRAND TOTAL 152,284.75

As is evident, the difference between the two calculations matters sonly in

form and not in substance.

-C 22-

15622 CABRALES V. COUNTY OF LOS ANGELES

if only “partial or limited success” was obtained, full

compensation may be excessive.

Thorne v. City of El Segundo, 802 F.2d 1131, 1141 (9th Cir.

1986) (quoting Hensley, 461 U.S. at 435); see also Greater Los

Angeles Council on Deafness v. Community Television of S.

Cal., 813 F.2d 217, 222 (9th Cir. 1987)(“Supreme Court

offers two different approaches for setting reasonable fees

where a plaintiff's success is limited”).

Although the “test for relatedness of claims is not precise,”

Thorne, 802 F.2d at 1141, it is clear that related claims

“involve a common core of facts” or are “based on related

legal theories,” Hensley, 461 U.S. at 435. The district court

here determined that plaintiffs “unsuccessful claims ...

against the twenty or so individual officers . . . all arose out of

a common core of facts and were based on related legal

theories.” Obviously plaintiff's claims against the individual

defendants were premised on the same set of circumstances

governing plaintiff's claims against the County and Black: the

inadequate psychiatric care leading to her son’s suicide. We

therefore hold that the district court did not abuse its discre-

tion in ruling that plaintiff's claims were related. Cf City of

Riverside v. Rivera, 477 U.S. 561, 577 (1986)(trial court cor-

rectly ruled that civil rights claims asserted among various

individuals and city were related), af7g 763 F.2d 1580 (9th

Cir. 1985); Hensley, 461 U.S. at 435 (*Many civil nghts cases

will present only a single claim.”); Tousaint v. McCarthy, 826

F.2d 901, 905 (9th Cir. 1987) (claims challenging the consti-

tutionality of conditions of confinement and procedures for

placing prisoners in administrative segregation “involve a

common core of facts and legal theories”); Thorne, 802 F.2d

at 1142 (although the district court did not analyze the issue,

it “reasonably may have concluded that the Title VII claim

and the section 1983 claim arose in part out of a ‘common

core of facts’ and that evidence that was material to one claim

was material to the other”).

-C 23-

CABRALES V. COUNTY OF LOS ANGELES 15623

[4] After deciding that the claims were related, the district

court then determined that “full compensation” would exag-

gerate plaintiff's overall success because she ultimately pre-

vailed only on her Monell claim that the County, through its

policymaker Black, maintained a policy or custom of deliber-

ate indifference to the psychiatric and medical needs of pre-

trial detainees and the decedent. At the same time, Black was

found liable only as the relevant policymaker responsible for

the psychiatric understaffing and other conditions at the jail

that led to the decedent’s suicide. The individual defendants,

on the othér hand, could have been found individually liable

to the plaintiff for their own deliberate indifference to the

decedent's medical and psychiatric needs, yet the various

claims against them were dismissed either prior to trial or on

a motion for directed verdict made during trial. Like the dis-

trict COUIT, we believe that the plaintiff's “overall relief” was

materially 4iminished by her failure to make out these claims

against the individual defendants."’ Therefore, we find that

the district court did not abuse its discretion by reducing the

attorneys’ fee award by 25% to reflect this limited success.

"Plaintiff ties on Cobb v. Miller, 818 F.2d 1227 (5th Cir. 1987), and

Mary Beth G.y City of Chicago, 723 F.2d 1263 (7th Cir. 1982), to support

her argument that the district court abused its discretion in reducing her

attorneys’ fee ward to reflect limited success of related claims. Like the dis-

trict court her. both Mary Beth G. and Cobb concluded that the claims on

which the plaintiffs succeeded were related to the claims on which the

plaintiffs faileqto succeed. See, e.g., id. at 1280 (“an unsuccessful claim will

be unrelated t¢ 4 successful claim when the relief sought on the unsuccessful

claim is inten¢eg to remedy a course of conduct entirely distinct and sepa-

rate from the -ourse of conduct that gave rise to the injury on which the

relief granted i, premised” (emphasis in original)). Unlike Mary Beth G.

and Codd, hOVever, we read Hensley as requiring a reduction for limited

Stecess even ithe claims are related. Thus, we cannot agree with the Court

of Appeals forthe-Seventh Circuit's conclusion that “[bJecause Hensley

only disappro

ves of awarding attorney’s fees for time spent on unsuccessful

claims for relief that are unrelated to successful claims, . . . time spenton.

unsuccessful, elated claims may be compensated.” /d. at 1279 (emphasis

in orginal). For this reason, plaintiff's reliance on the Mary Beth G. and

Cobb decision, is misguided.

-C 24-

15624 CABRALES V. COUNTY OF LOS ANGELES

Neither do we find that the district court abused its discretion

by not reducing the fees by an additional 25% as requested by

the defendants.

B. Expert Witness Fees.

The plaintiff also claims error in the trial court’s denial of

her application for $33,000 in expert witness fees. The trial

court held that the plaintiff had failed to provide a declara-

tion as required by a local court rule that the costs were

“accurate, necessary and actually incurred.” Also, the court

found that the plaintiff had failed to provide adequate docu-

mentation to assess the reasonableness of the claimed

amounts. We hold that the court’s denial of these fees on

these grounds was not an abuse of discretion.

VI. Fees on Appeal.

Under 42 U.S.C. § 1988, the plaintiff requests fees for this

appeal. She is entitled to fees on the appeal because she was

a “prevailing party” in the underlying litigation. Greater L.A.

Council, 813 F.2d at 223. Given our affirmance of the district

court’s reduction of attorneys’ fees, however, the plaintiff's

success on appeal is only partial. The plaintiff's cross-appeal

on the attorneys’ fees issue is a separable and divisible claim

from her defense of the appellants’ appeal in the underlying

suit. Cf id. Therefore, the plaintiff is entitled to full fees for

time reasonably spent on the defense of the jury verdict. The

plaintiff is entitled to no fees for work spent on her unsuccess-

ful appeal of the district court’s reduction of attorneys’ fees.

Pursuant to Ninth Circuit Rule 39-1.6, the plaintiff will file an

itemized proposal of rates and hours worked within thirty

days of the filing of this opinion. We will then fix the amount

of fees by separate order.

CONCLUSION

For the foregoing reasons, we AFFIRM the jury verdict and

the district court’s denial of the appeliants’ motion for sum-

-C 25-

CABRALES V. COUNTY OF LOS ANGELES 15625

mary judgment. We also affirm the district court’s 25% attor-

neys’ fees reduction and its refusal to award the enhanced

expert witness fees to the plaintiff.

AFFIRMED.

Pe Oe ee

DEAS ay ee

$e

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

JOSEFINA CABRALES,

etc.,

) No. 84-8084

) -MRP (Px)

Plaintiff, )

Vv. )

COUNTY OF LOS ANGELES, )

et al. )

Defendants. )

JUDGMENT ON JURY VERDICT

On April 10, 1987, the jury rendered its unanimous

verdict in favor of plaintiff, Josefina Cabrales, and

against defendants, County of Los Angeles and Ronald

Black, and the Court now renders judgment on that

verdict.

Plaintiff shall have judgment against defendant

County of Los Angeles in the sum of $150,000.00 and

against defendant Ronald Black in the sum of

$7,500.00, and plaintiff shall recover costs of suit

— against both defendants.

DATED: April 14, 1987

_/s/ Mariana R. Pfaelzer

UNITED STATES DISTRICT JUDGE

' APPENDIX E

S

JURY INSTRUCTION

If you find based upon the preponderance of the

evidence that there was an insufficient number of

psychiatrists at the Men’s Central Jail, that finding,

standing alone, does not constitute deliberate indiffer-

ence to the serious medical needs of decedent.

See

CONSTITUTIONAL AND

STATUTORY PROVISIONS

United States Constitution, Amendment 14,

Section 1.

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of

the United States and of the State wherein they reside.

No State shall make or enforce any law which shal!

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of

life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the equal

protection of the laws.

United States Code, Title 42

Section 1983.

Every person who, under color of any statute, or-

dinance, regulation, custom, or usage, of any State or

Territory or the District of Columbia, subjects, +or

causes to be subjected, any citizen of the United States

or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to

the party injured in an action at law, suit in equity, or

other proper proceeding for redress. For the purposes

of this section, any Act of Congress applicable exclu-

sively to the District of Columbia shall be considered to

be a statute of the District of Columbia.

-F2-

United States Code, Title 28.

Section 1254(1)

Cases in the Courts of Appeal may be reviewed by

the Supreme Court by the following methods:

(1) By Writ of Certiorari granted upon the

petition of any party to any civil or criminal

case, before or after rendition of judgment or

decree;

No.

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1989

COUNTY OF LOS ANGELES AND RONALD BLACK,

~ Petitioners,

vs.

JOSEFINA CABRALES,

Respondent.

STATE OF CALIFORNIA )

COUNTY OF LOS ANGELES .

Donald A. Johnson, being first duly sworn, deposes and says: I am a citizen of the

United States and a resident of or employed in the county aforesaid. I am over the

age of 18 years and not a party to the said action. My business address is 3550

Wilshire Boulevard, Suite 916, Los Angeles, California 90010. On this date, |

served the within PETITION FOR WRIT OF CERTIORARI on the interested

parties in said action by placing three true copies thereof with first-class postage

fully prepaid, in the United States post office mailbox at Los Angeles, California,

in sealed envelopes addressed as follows:

YAGMAN & YAGMAN

723 Ocean Front Walk

Venice, CA 90291

That affiant makes this service, for KEVIN C. BRAZILE, Counsel of Record,

THE LOS ANGELES COUNTY COUNSEL’S OFFICE, Attorneys for Petitioners

herein, and that to the best of my knowledge all the persons required to be served

in said action have been served.

On December 4, 1989, before me, the undersigned, a Notar¥ Public in and for said

County and State, personally appeared Donald A. Johnson, known to me (or

proved to me on the basis of satisfactory evidence) to be the person whose name is

subscribed to the within instrument, and acknowledged to me that he executed the

Witness my hand and official seal. | 7 dll whl

OFFICIAL SEAL

Theodore Matsuo Wilden

NOTARY PUBLIC - CALIFORNIA Notary Public in and for

LOS ANGELES COUNTY said county and state

My comm. exnires MOV 30, 1990

Tk ES RACE

Printers / (213) 383-4457 / (714) 720-1510