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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1990
- **Citation:** 494 U.S. 1091

## Text

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

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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.

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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

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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.

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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.

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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.

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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

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0731%3A1. Public record. Not legal advice.