                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        MAY 8 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

ROBIN WINGER,                                   No.    15-55848

                Plaintiff-Appellant,            D.C. No.
                                                8:13-cv-00267-AG-RNB
 v.

CITY OF GARDEN GROVE; et al.,                   MEMORANDUM *

                Defendants-Appellees.

                   Appeal from the United States District Court
                      for the Central District of California
                   Andrew J. Guilford, District Judge, Presiding

                       Argued and Submitted March 6, 2017
                              Pasadena, California

Before: REINHARDT and NGUYEN, Circuit Judges, and EZRA,** District
Judge.

      Robin Winger appeals the district court’s grant of summary judgment to two

police officers, two emergency medical technicians (EMTs), and the City of

Garden Grove. Winger was arrested on suspicion of driving under the influence,



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
but she was suffering from a stroke, not intoxication. She brought Fourteenth

Amendment claims against the individual defendants for deliberate indifference to

her serious medical need, a Monell claim against the city for failure to train, and

negligence claims under state law against the two police officers. We have

jurisdiction under 28 U.S.C. § 1291. We affirm in part, reverse in part, and

remand.

      1. We affirm the district court’s grant of summary judgment on Winger’s

Fourteenth Amendment claims. A stroke is unquestionably a serious medical need,

but Winger has not shown a genuine issue of material fact as to whether the

officers or the EMTs acted with deliberate indifference to her medical condition.

See Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1067–71 (9th Cir. 2016).

      Officer Elhami called for the EMTs less than a minute after pulling her over.

When Winger said that she no longer needed to see the paramedics, Officer Elhami

insisted she do so. The EMTs arrived on the scene and their evaluation showed

that Winger’s speech was clear, she was not disoriented, her vital signs were

normal, and she had equal grip strength in her hands. An EMT nonetheless

encouraged Winger to see a doctor as a precaution, but she told him that she did

not want to go and signed a written refusal of further emergency medical services.

      Winger’s behavior was erratic but in a way that was consistent with

intoxication. Officer Starnes appeared on the scene and conducted a series of


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sobriety tests, which she failed. He arrested Winger and booked her into jail.

Upon arriving at jail, she received a medical screening, which also did not reveal

any medical problem. When Winger was released, she was immediately taken to a

hospital. The emergency room physician wrote in his notes, “doub[t] stroke . . .

likely psychiatric or drug induced psychosis.” Only later would a CT scan reveal

that Winger had suffered a stroke.

      Under these circumstances, the officers and EMTs were not objectively

unreasonable in not forcing Winger to go to the hospital against her will. They

reasonably believed, as the doctor at the hospital later would, that she was

competent to make her own health care decisions.

      2. We affirm the district court’s grant of summary judgment to the City of

Garden Grove on Winger’s Monell claim. See Monell v. Dep’t of Soc. Servs., 436

U.S. 658 (1978). The district court erred in concluding that municipalities can

never be held liable absent constitutional violations by the individual defendants.

See Gibson v. Cty. of Washoe, 290 F.3d 1175, 1186 n.7 (9th Cir. 2002) overruled

on other grounds by Castro, 833 F.3d at 1076. We nonetheless affirm, as Winger

provided little evidence that the city’s training of police and fire personnel were

inadequate. Winger relies almost exclusively on the report of her expert, which

criticized the behavior of the individual officers, not the city’s policies. The

alleged inadequacies of the city do not rise to the level of unconstitutional


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deliberate indifference for a failure to train. See Connick v. Thompson, 563 U.S.

51, 61 (2011).

      3. We reverse the district court’s grant of immunity to the individual

officers on Winger’s negligence claim. The district court reasoned, as to Officers

Elhami and Starnes, that “even assuming the elements of negligence were satisfied,

[they] would be immunized by California Government Code Section 821.6.” This

is incorrect. As we held in Garmon v. County of Los Angeles, that immunity

statute applies only to malicious prosecution actions. 828 F.3d 837, 847 (9th Cir.

2016). We remand for the district court to determine in the first instance whether

to exercise its discretion to retain jurisdiction over this state claim. See Carnegie-

Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988) (“in the usual case in which

all federal-law claims are eliminated before trial, the balance of factors to be

considered under the pendent jurisdiction doctrine . . . will point toward declining

to exercise jurisdiction over the remaining state-law claims.”).

      AFFIRMED in part, REVERSED in part, and REMANDED.

Each party shall bear their own costs.




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