Unpublished Disposition, 919 F.2d 144 (9th Cir. 1985)

MEMORANDUM^* 

James Seastrand (Mayor of North Las Vegas), Michael Dyal (City Manager), and William Tharp (Chief of Police for the City of North Las Vegas) (collectively "government officials") appeal the district court's order denying their motions to dismiss Plaintiff's Second Amended Complaint for failure to state a claim pursuant to Fed. R. Civ. P. 12(b) (6).

The Second Amended Complaint alleges that on October 20, 1985, Dwayne Banks died while incarcerated at the North Las Vegas Police Department as a result of beatings by the police and a self administered drug overdose. Jeanie Banks ("Banks"), Administratrix of the Estate of Dwayne Banks, filed a complaint alleging a violation of Dwayne Banks' civil rights. The complaint further alleges that Dwayne Banks, after attempting to get help from two police officers because he was suffering from a drug overdose, was unlawfully arrested, beaten, and jailed by the officers. Banks further alleges that Dwayne Banks was never medically examined at the jail even after numerous requests by jail inmates that he be given medical attention.

The government officials contend that the district court erroneously found that they were not entitled to qualified immunity. In addition, the government officials argue that the district court erred when it decided that the Second Amended Complaint sufficiently alleged direct involvement by the individually named officials.

I. The District Court's Treatment of the Motions

On appeal, Banks argues that the motions before the district court should be treated as motions for summary judgment rather than motions to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b) (6). A motion to dismiss is not automatically converted into a motion for summary judgment whenever matters outside the pleadings happen to be filed with the court and not expressly rejected. North Star Int'l v. Arizona Corp. Comm'n, 720 F.2d 578, 582 (9th Cir. 1983). Because the district court stated that its decision was made under Rule 12(b) (6), and there is nothing to suggest that the court considered material outside the Second Amended Complaint, we review the district court's decision as one that denies a motion to dismiss for failure to state a claim under rule 12(b) (6).

II. The District Court's Decision that the Defendants Violated a "Clearly Established Unlawful Policy"

The government officials contend that the Second Amended Complaint fails to state a claim because the named defendants were performing discretionary functions which are shielded from civil damages insofar as their conduct did not violate a clearly established statutory or constitutional right of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800 (1982). Further, the officials argue that the failure to provide medical procedures or treatment to a pretrial detainee suffering from a drug overdose does not amount to "deliberate indifference to serious medical needs."

To make out a claim under Sec. 1983, the claimant must prove that the failure to provide a medical procedure or treatment amounted to "deliberat [e] indifference to serious medical needs." Jones v. Johnson, 781 F.2d 769 (9th Cir. 1986). At the pleading stage the claimant need only allege facts constituting "deliberate indifference." Id. at 771. Banks has done this by alleging that Dwayne Banks was "obviously suffering from an overdose of narcotics" and that the defendants failed to provide "training and supervision regarding the treatment of overdosed and unconscious citizens." Banks' Second Amended Complaint further alleges that Dwayne Banks' physical condition was not checked by prison authorities even after "numerous requests by jail inmates" that medical care be provided for Banks. Banks' argues that the failure to provide any medical procedure or treatment for a pretrial detainee obviously suffering from a serious medical need, i.e., a drug overdose amounts to "deliberate indifference," and thus the Second Amended Complaint complies with the pleading requirements under Jones.

The government officials argue that the failure to provide a medical procedure or treatment for a pretrial detainee suffering from a drug overdose was not a "clearly established unlawful policy." The government officials base this contention on the fact that there is no case law specifically finding a duty to provide treatment to a pretrial detainee suffering from a drug overdose. The fact that there is no case law specifically finding such a duty does not mean that there is no clearly established constitutional right. Banks is not required to present prior case law involving precisely the same medical condition or factual circumstances. Wood v. Ostrander, 879 F.2d 583, 592 (9th Cir. 1989). We need only look to decisional law when a plaintiff is attempting to impose liability on government officials based on a "new" constitutional right. Bergquist v. County of Cochise, 806 F.2d 1364, 1368 (9th Cir. 1986). A reasonable official should know and should have known at the time of Banks' death, that a pretrial detainee "obviously suffering from a drug overdose" is in need of medical treatment and that failure to provide such treatment would violate due process.¹ 

The government officials also allege qualified immunity on Banks' claims that they failed to adequately train and supervise police officers and failed to comply with state laws and regulations. At the time of Banks' death, other circuits required only that training of officers be "grossly negligent" to be unlawful under Sec. 1983. Bergquist v. County of Cochise, 806 F.2d at 1369-70 (citing cases). Although this circuit did not expressly adopt the "grossly negligent" rule until 1986, id., there was enough case law in October 1985 to put city officials on notice that a grossly inadequate training program would be unconstitutional and could result in liability for city policy-makers if the inadequacy were likely to result in future police misconduct. Id. at 1370; See City of Canton v. Harris, 109 S. Ct. 1197, 1205 (1989). Similarly, it was well settled in 1985 that a "custom or usage" of systematic maladministration of the laws could form a predicate of a Sec. 1983 claim. Adickes v. Kress & Co., 398 U.S. 144, 167-68 (1970).

III. The District Court's Decision Finding that the Allegations Against Individually Named Defendants were Sufficient

The government officials contend that the Second Amended Complaint fails to state a claim because it does not plead with sufficient particularity the acts committed by the Mayor, City Manager, and Police Chief. The government officials argue that the complaint does not allege any "direct involvement" nor does it imply that the defendants were "aware of the custom or policy underlying the conduct."

Because we are reviewing the denial of 12(b) (6) motions, we need only consider whether Banks has alleged sufficient facts to make out a claim under Sec. 1983. Banks has alleged conduct by the individually named defendants linking them to Dwayne Banks' injuries. Banks has sufficiently alleged that the named defendants were aware of an unconstitutional policy, that the policy could be attributed to the policymakers based on their failure to supervise, train, and correct the unlawful policies, and that the officials failed to comply with state laws and police department regulations.

The government officials also argue that the alleged use of excessive force by the officers, as well as other alleged acts and omissions, are single acts which are insufficient to connect a policy to the harm. (citing City of Oklahoma City v. Tuttle, 471 U.S. 808 (1985)). The government officials' reliance on Oklahoma City for this proposition is misplaced. The Supreme Court in Oklahoma City held that municipal liability based on allegations that a single incident of unconstitutional activity by a police officer alone is insufficient to prove that the municipality maintained an unconstitutional "policy or custom." But this does not mean that a public official is immune from liability because he has only violated the Constitution once. In general, where an individual actor deliberately follows a course of action that violates a claimant's constitutional rights, the single act and resulting injury are sufficient to establish liability. A plaintiff is required to show more only where a municipality is being held liable for the acts of its employees or agents. Monell v. New York City, Dept. of Social Services, 436 U.S. 658, 694-695 (1978).² 

Because Banks has alleged facts in the Second Amended Complaint which would make out a claim under Sec. 1983 and has given the defendants fair notice of what the claim is and the grounds upon which it rests, Conley v. Gibson, 355 U.S. 41, 47 (1957), we affirm the district court's decision denying the 12(b) (6) motions. Banks' request for sanctions is DENIED.

AFFIRMED.