Unpublished Disposition, 852 F.2d 572 (9th Cir. 1988)

MEMORANDUM^* 

Plaintiff-appellant Joseph Soto, Jr. (Soto) appeals from the judgment entered in favor of defendants-appellees City of Sacramento, County of Sacramento, individual county defendants Sheriff Lowe, Deputy Fidler, and Deputy Sheriffs Waters, Thomas, and Hasapis, and individual city defendants Police Chief Kearns and Police Sergeant LaChappelle, in his 42 U.S.C. § 1983 action. The suit stems from the events surrounding Soto's arrest, the conditions of his incarceration, and the physical injuries he ultimately suffered in a suicide attempt in the Sacramento County Jail. Soto's wife, plaintiff-appellant Imelda Soto, appeals from the judgment entered in favor of all defendants-appellees on her Sec. 1983 claim for loss of her husband's companionship and society.

On March 14, 1978, Sergeant LaChappelle attempted to arrest Soto and three companions for suspicion of robbery and assault. He ordered all four to lie on the ground face down. Soto did not comply with this or at least two subsequent commands, remaining on his haunches as if to flee. Officer Brewer arrived with a police dog in time to hear LaChappelle's last order. At approximately the same time that LaChappelle attempted to push Soto into a prone position with his foot and force his hand open to ensure he was unarmed, Brewer released his dog. The dog bit Soto on the side of his rib cage and Soto then complied with LaChappelle's instructions. The officers arrested the suspects and caused them to be transported to the Sacramento County Jail where they were booked and incarcerated.¹ 

Soto remained in jail for the next five weeks. On April 20, 1978, he was housed in a "tank" or multiple occupancy cell when he became involved in a disturbance with Deputy Fidler and a trustee making commissary rounds. Fidler's call for assistance brought Deputy Sheriffs Waters, Thomas, and Hasapis to the scene. They decided to remove Soto from the tank cell and place him in a single occupancy cell, purportedly to restore order. Pursuant to standard jail procedure, Soto's person and belongings were searched incident to the transfer. That search revealed a controlled substance. Soto was rearrested, booked, and placed in a single occupancy cell in the general jail population. The next morning he was found hanging by his neck from a noose fashioned from a mattress cover and anchored to a ventilator grill. Soto suffered massive brain damage. It is undisputed that defendants had no reason to suspect Soto was suicidal.

Soto's amended Sec. 1983 complaint alleged Officer Brewer and Sergeant LaChappelle used excessive force in his arrest, primarily through the unnecessary and incompetent use of the dog. He further alleged that Chief Kearns and the City were liable for their customary failure to properly train the officers and the dog. Soto further alleged that the hanging resulted from a morbid state of mind induced by the dog attack and the April 20 events in the jail. Specifically, he alleged a deprivation of due process by his jailers' failure to explain jail rules and regulations, his punitive transfer, and his placement in a cell containing a dangerous condition in that its features enabled him to hang himself. Plaintiff-appellant Imelda Soto, his wife, sought recovery for the loss of Soto's companionship and society occasioned by his injuries, also under Sec. 1983. By a series of dispositive motions the issues and parties were narrowed. In a final Pretrial Conference Order (Final) of August 26, 1986, the district court directed the plaintiffs to include in their trial brief a detailed offer of proof on all remaining issues, with responsive submissions so as to enable the court to determine whether to enter a directed verdict. After reviewing the parties' submissions and motions, the court dismissed all defendants except Officer Brewer, and entered summary judgment pursuant to Fed. R. Civ. P. 54(b).² 

Soto first argues that the district court erred in its allocation of the burden of proof because the defendants should have borne the burden of proof. Contrary to this assertion, neither the Sixth Amendment, the doctrine of res ipsa loquitur, nor any presumptions relating to suicide operate to shift the burden of proof to the defendants.

Soto next argues that the standard of proof, gross negligence, required by the district court was erroneously burdensome in the light of Daniels v. Williams, 474 U.S. 327 (1986) and Davidson v. Cannon, 474 U.S. 344 (1986). Without deciding whether that standard is precisely correct, we hold that these cases apply and require Soto to demonstrate something more than negligence to state a claim under Sec. 1983 and the due process clause. See Strandberg v. City of Helena, 791 F.2d 744, 749 (9th Cir. 1986). Soto's arguments based on 42 U.S.C. §§ 1997e(a) (1) and 1986, and analogies to the law of products and premises liability are untenable.

We further hold insufficient his argument that there had previously been two prior suicide attempts in similar cells. That did not make it foreseeable that Soto would also attempt suicide, or make the defendants' failure to prevent it gross negligence. Nor does the evidence show that Soto's transfer to a single cell after the tank cell disturbance was punitive in nature and therefore a violation of his due process rights as a pretrial detainee under Bell v. Wolfish, 441 U.S. 520, 537 (1979). Nor has he produced evidence sufficient to raise a genuine issue that the City and Kearns were grossly negligent in their training and supervision of Brewer and the dog. See Oklahoma City v. Tuttle, 471 U.S. 808 (1985).

Our conclusion that the defendants were not grossly negligent towards Soto renders moot Imelda Soto's challenge to the dismissal of her claim for marital interference and Soto's contention that defendants may be liable for punitive damages. Similarly mooted is Soto's challenge to the court's refusal to appoint and compensate expert witnesses and to take judicial notice of the qualifications of others. Any errors in this regard were clearly harmless since we hold that defendants were entitled to judgment as a matter of law.

AFFIRMED.