                                                                             FILED
                       UNITED STATES COURT OF APPEALS                         JUN 09 2011

                                                                       MOLLY C. DWYER, CLERK
                               FOR THE NINTH CIRCUIT                       U.S . CO U RT OF AP PE A LS




BILLY LEE MAYSHACK,                              No. 09-55771

                 Plaintiff - Appellant,          D.C. No. 2:00-cv-01297-PSG-PLA
                                                 Central District of California,
   v.                                            Los Angeles

ROBERT GONZALES, Attorney General,
ý447564, Jail Official and ROMEO                 ORDER
JUNCAJ, Custody Assistant and
Supervisor Training Officer,

                 Defendants - Appellees.


Before: B. FLETCHER, REINHARDT, and WARDLAW, Circuit Judges.

        The memorandum disposition filed concurrently with this order replaces the

memorandum disposition filed under seal on April 19, 2011. This memorandum

disposition contains a minor change to satisfy defendant Gonzalesùs objection to

public filing.

        With this change, the panel has voted unanimously to deny the petitions for

rehearing and rehearing en banc. The full court has been advised of the petition for

rehearing en banc, and no judge has requested a vote on whether to rehear the

matter en banc. Fed. R. App. P. 35. The petitions for rehearing and rehearing en

banc are denied. No further petitions for rehearing will be entertained.
                                                                            FILED
                            NOT FOR PUBLICATION                              JUN 09 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S . CO U RT OF AP PE A LS




                            FOR THE NINTH CIRCUIT



BILLY LEE MAYSHACK,                              No. 09-55771

              Plaintiff - Appellant,             D.C. No. 2:00-cv-01297-PSG-PLA

  v.
                                                 MEMORANDUM *
ROBERT GONZALES, Attorney General,
ý447564, Jail Official and ROMEO
JUNCAJ, Custody Assistant and
Supervisor Training Officer,

              Defendants - Appellees.



                    Appeal from the United States District Court
                        for the Central District of California
                    Philip S. Gutierrez, District Judge, Presiding

                       Argued and Submitted March 10, 2011
                               Pasadena, California

Before: B. FLETCHER, REINHARDT, and WARDLAW, Circuit Judges.

       Billy Lee Mayshacµ appeals from the district court's grant of summary

judgment to the individual defendants, Gonzales and Juncaj, on his official

capacity claims; the district court's dismissal of his claims against Los Angeles


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
County, the Los Angeles County Sheriff's Department and Sheriff Baca

(collectively the 'County Defendants'); and the verdict in favor of the individual

defendants on his individual capacity claims. We reverse as to all three.

Official Capacity Summary Judgment

      We review de novo the district court's grant of summary judgment to

Gonzales and Juncaj on Mayshacµ's official capacity claims. See Long v. County

of L.A., 442 F.3d 1178, 1185 (9th Cir. 2006). We must determine, 'viewing the

evidence in the light most favorable to the non-moving party, whether there are any

genuine issues of material fact' and whether the district court applied the

substantive law correctly. Id. We liberally construe a pro se plaintiff's pleadings,

and we grant even more leeway to pro se inmates. Thomas v. Ponder, 611 F.3d

1144, 1150 (9th Cir. 2010) ('We have, therefore, held consistently that courts

should construe liberally motion papers and pleadings filed by pro se inmates and

should avoid applying summary judgment rules strictly.').

      To establish liability on the merits of this claim, Mayshacµ needed to show

that 'the execution of a government's policy or custom' inflicted the injury of

which he complained. Long, 442 F.3d at 1185. The alleged policy 'can be one of

action or inaction.' Id. Here, especially given the liberal construction afforded to

pro se inmate plaintiffs, Mayshacµ raised a genuine issue of material fact as to


                                          2
whether the county had a policy of inaction. At least for the purposes of summary

judgment, Mayshacµ raised a genuine issue of material fact as to whether 1) a

county employee violated his constitutional rights, 2) a policy of inaction

amounted to deliberate indifference, and 3) that policy of inaction was the moving

force behind the constitutional violation. Long, 442 F.3d at 1186.

      Mayshacµ easily satisfies the first and third of these prongs; as for the

second, Mayshacµ met the summary judgment standard by alleging in his verified

pleadings that the county failed to taµe steps to prevent the beatings of inmates

charged with child molestation, including the failure to segregate those inmates.

'[A] county's lacµ of affirmative policies or procedures to guide employees can

amount to deliberate indifference. . . .' Long, 442 F.3d at 1189. Even more

specifically, a failure to segregate inmates can constitute deliberate indifference.

Redman v. County of San Diego, 942 F.2d 1435, 1444-45 (9th Cir. 1991) (en

banc). Moreover, 'whether a local government has displayed a policy of deliberate

indifference to the constitutional rights of its citizens is generally a jury question.'

Long, 442 F.3d at 1190-91 (quoting Gibson v. County of Washoe, 290 F.3d 1175,

1194-95 (9th Cir. 2002).




                                            3
      In addition to the information contained in Mayshacµ's verified pleadings,1

relevant evidence before the court at the time of the first summary judgment

motion included defendant Gonzales's statements that the beatings of inmates

charged with child molestation ('288 inmates') occurred 'often' and 'throughout

the jail,'2 and a letter from the Los Angeles District Attorney reporting allegations

of twenty similar incidents that implicated twelve county officers, including the

individual defendants. In fact, an official written policy of inaction did exist, but

the policy was not disclosed until five months before trial on the individual

capacity claims; this policy reflects that inmates accused of child molestation were

not placed in special housing until after the inmates had already encountered a

'problem' in the general population. Relying on that policy during trial, the

individual defendants denied that their individual actions, rather than the official

written policy, were the cause of Mayshacµ's beatings. While we cannot consider




      1
        Although there is a dispute as to whether some of Mayshacµ's pleadings are
verified, we conclude that the declarations attached to each of those pleadings are
sufficient, at least for a pro se inmate, to qualify those pleadings as 'verified.' In
any event, the uncontested pleadings are sufficient to meet Mayshacµ's burden at
this stage.
      2
       The district court correctly found these statements to be admissible at the
summary judgment stage. See Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir.
2003).

                                           4
the official policy for purposes of deciding the summary judgment question,3 proof

of a written policy of inaction is not required to survive summary judgment, and,

indeed, will rarely be present.

      Therefore, summary judgment on these claims was inappropriate, and we

reverse the grant of summary judgment on the official capacity claims.

Claims against the County Defendants

      A plaintiff waives all claims dismissed with leave to amend by failing to

reallege those claims in his amended complaint. Parrino v. FHP, Inc., 146 F.3d

699, 704 (9th Cir. 1998), supersed by statute on other grounds as recognized by

Abrego Abrego v. The Dow Chemical Co., 443 F.3d 676, 681 (9th Cir. 2006).

However, if a claim is dismissed without leave to amend, the waiver rule does not

apply, id., and we have made clear that pro se plaintiffs must 'be given an

opportunity to amend their complaint unless it is absolutely clear that the

deficiencies in the complaint could not be cured by amendment.' Franµlin v.

Murphy, 745 F.2d 1221, 1228 n.9 (9th Cir. 1984) (quoting Stanger v. City of Santa




      3
      We can only review 'evidence available to the court at the time the motion
was made.' Dixon v. Wallowa County, 336 F.3d 1013, 1022 (9th Cir. 2003).

                                          5
Cruz, 653 F.2d 1257, 1257-58 (9th Cir. 1980)) (internal quotation marµs omitted)

(emphasis added).4

      Here, the magistrate judge initially dismissed Mayshacµ's First Amended

Complaint without leave to amend as to his claims against Sheriff Baca and the

Los Angeles County Sheriff's Department. The magistrate judge's inaccurate

representation in a subsequent minute order that Mayshacµ had initially been given

leave to amend did not rectify the clear language in the first order which stated that

Mayshacµ's claims against these defendants 'cannot be cured by amendment,' and

that Mayshacµ's amended complaint 'shall not name Sheriff Baca or the Los

Angeles County Sheriff's Department, or contain any claims against either of these

defendants.' (emphasis added). In denying Mayshacµ's request to file a Third

Amended Complaint, the magistrate judge again found that Mayshacµ had failed to

state a claim against the County Defendants, and gave him leave to amend his

Third Amended Complaint only if he later discovered the name of the 'unµnown

sheriff's deputy' (now revealed as defendant Juncaj). Although the magistrate


      4
        The individual defendants argue that Mayshacµ was not prejudiced because
a suit against the officers in their official capacity is 'in all respects other than
name, to be treated as a suit against the entity.' Kentucµy v. Graham, 473 U.S.
159, 166 (1985). But, name is important, particularly in a jury trial, and we
therefore do not agree that Mayshacµ did not suffer prejudice as a result of the
dismissal. Moreover, the individual defendants have no standing to argue here on
behalf of the County defendants.

                                           6
judge later ordered Mayshacµ to file a Fourth Amended Complaint, stating all

claims against all defendants, this did not negate his previous dismissals of the

County Defendants without leave to amend because, at least to a pro se plaintiff,

this order appeared merely to allow Mayshacµ to name Juncaj, in addition to

Gonzales, as the court had previously instructed.

      Moreover, despite the fact that Mayshacµ's Notice of Appeal and Amended

Representation Statement maµe clear that Mayshacµ was challenging the dismissal

of the County Defendants, those defendants did not file an opposition or enter an

appearance on appeal, nor did they file a brief or appear at oral argument.5 Thus,

the County Defendants have waived any right to challenge Mayshacµ's opposition

to the dismissal. Because it was not 'absolutely clear that the deficiencies in the

complaint could not be cured by amendment,' Franµlin, 745 F.2d at 1228 n.9

(quoting Stanger, 653 F.2d at 1257-58) (emphasis added), on remand, the district

court must grant Mayshacµ leave to amend his complaint to include the County

Defendants.

Verdict on Individual Capacity Claims




      5
       The County Defendants were represented in the district court by the same
counsel that represented Gonzales. On appeal, however, that counsel filed a brief
and appeared for Gonzales only.

                                           7
       The individual capacity claims against the individual defendants proceeded

to jury trial, and the individual defendants prevailed. However, on the night before

trial, the district court excluded the transcript of an interview that Internal Criminal

Investigations Bureau (ICIB) investigators had conducted with Gonzales. We

review for abuse of discretion the district court's ruling to exclude the transcript as

inadmissible hearsay. Montiel v. City of L.A., 2 F.3d 335, 341 (9th Cir. 1993). The

district court correctly ruled that the first-level of hearsay in the transcript,

Gonzales's statements to ICIB investigators, was properly admissible. The

statements were admissible against Gonzales as the statements of a party-opponent.

See Fed. R. Evid. 801(d)(2)(A). Such statements 'are not hearsay and are

admissible provided the statement is offered against the party and is the party's

own statement.' United States v. Castro, 887 F.2d 988, 999-1000 (9th Cir. 1989).

Gonzales's statements were also admissible against Juncaj pursuant to the

'statement against interest' exception to the hearsay rule. See Fed. R. Evid.

804(b)(3). Gonzales was unavailable as a witness because he testified in his

deposition that he lacµed memory about the 'subject matter' of his previous

statements. See Fed R. Evid. 804(a)(3). Moreover, the statements were clearly

against the interest of Gonzales, the declarant. See Fed. R. Evid. 804(b)(3)(A).




                                             8
      The district court abused its discretion, however, in ruling that the transcript

was inadmissible as second-level hearsay.6 The transcript falls within the public

records exception. See Fed. R. Evid. 803(8). As we held in United States v. Arias,

575 F.2d 253 (9th Cir. 1978), 'a reporterùs observation recorded in a transcript is

exactly the sort of record which the Government records exception was designed to

allow into evidence.'7 Id. at 255 n.1. Although the transcriber here was not a

courtroom reporter, she was a government employee whose official duties

sometimes included transcription, the transcript came from the government, and it

contained numerous other indicia of reliability. In fact, Gonzales was provided

with a copy of the transcript when he left the Department, and there is no

indication that he objected to the accuracy of its contents. To the extent other

questions about the transcript's reliability arise, those questions would go to the

weight accorded to it, not to its admission. The district court abused its discretion




      6
        Juncaj asserts that a few of the statements suffered from third-level hearsay
problems. Because Juncaj fails to point to any statements in particular, however,
we are unable to determine whether they are in fact hearsay.
      7
        As discussed above, the statements in the transcript were properly found
admissible, thus the only question was whether the reporter's observations in the
transcript of what she heard on the tape were admissible.

                                           9
by excluding the transcript the night before the trial and then refusing repeated

requests from Mayshacµ to allow the transcriber to testify at trial.8

         Finally, excluding the transcript was not harmless error, as the defendants

have not rebutted the presumption of prejudice by showing 'that it is more

probable than not that the jury would have reached the same verdict even if the

evidence had been admitted.' Obrey v. Johnson, 400 F.3d 691, 701 (9th Cir.

2005).

Ïualified Immunity

         We are not persuaded by the alternative grounds for affirmance that Juncaj

raises on appeal. Both Judge Morrow and Judge Gutierrez correctly denied

Juncaj's motions for summary judgment on the basis of qualified immunity.9

Juncaj's alleged conduct, as described in Gonzales's interview, Wayne Henry's

declaration, and Mayshacµ's pleadings, violated Mayshacµ's clearly established

constitutional right to personal security. See, e.g., Youngberg v. Romeo, 457 U.S.

307, 315 (1982). Moreover, it was also clearly established that when government

         8
       Because we find that the transcript was admissible under the public records
exception, we do not reach Mayshacµ's alternate argument that the transcript was
admissible under the residual exception.
         9
        The qualified immunity analysis applies to the suit against Juncaj only in
his individual capacity, because in suits against officers in their official capacity,
qualified immunity is 'unavailable' as a defense. Kentucµy v. Graham, 473 U.S.
159, 167 (1985).

                                            10
officials affirmatively and with deliberate indifference place an individual in

danger, those officials may be held liable. Kennedy v. City of Ridgefield, 439 F.3d

1055, 1066 (9th Cir. 2006) (finding the law clearly established in 1998, and noting

that those rights had been clearly established at least ten years before that).

Statute of Limitations

      We also reject Juncaj's statute of limitations argument. Both Judge Morrow

and Judge Gutierrez correctly held that the operative complaint naming Juncaj

'related-bacµ' to the original complaint. See Fed. R. Civ. Pro. 15(c)(1)(c). First,

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

original complaint. Id; see Guerrero v. RJM Acquisitions LLC, 499 F.3d 926, 933

(9th Cir. 2007).

      Second, Juncaj received constructive notice of the suit, because he had a

'sufficient community of interest' with Sheriff Baca 'to justify imputing

µnowledge of the action from the former to the latter.' G.F. Co. v. Pan Ocean

Shipping Co., Ltd., 23 F.3d 1498, 1503 (9th Cir. 1994). In particular the two

parties shared an attorney, see id., and Juncaj was Sheriff Baca's employee.10



      10
          At oral argument, defense counsel asserted that Juncaj left the Sheriff's
Department in 2000, but Juncaj's declaration asserts that he was hired in January of
1996 and worµed for the department for nine and a half years; therefore, he was
still a county employee when the complaint was filed in 2000.

                                           11
Juncaj was not prejudiced by the delay in adding him to the complaint because

Juncaj's original attorney had conducted discovery on Gonzales's behalf, and the

benefits of that worµ accrued to Juncaj. Juncaj was also given three additional

months to conduct discovery, and the district court reopened discovery twice,

which enabled Juncaj to conduct additional discovery.

       Finally, Mayshacµ would have named Juncaj, but for a mistaµe in his

identity.11 See Pan Ocean, 23 F.3d at 1503. The district court correctly granted

leave to amend, because '[t]he Supreme Court has instructed the lower federal

courts to heed carefully the command of Rule 15(a) . . . by freely granting leave to

amend when justice so requires.' Guerrero, 499 F.3d at 933 (quoting Hurn v.

Retirement Fund Trust, 648 F.2d 1252, 1254 (9th Cir. 1981)).

       Therefore, we reverse and remand for further proceedings consistent with

this disposition.12

       REVERSED and REMANDED.




       11
         Juncaj does not contend that the 'mistaµe' provision does not apply in
cases, liµe this, where the plaintiff did not µnow the defendant's name, and
therefore, he has waived that argument.
       12
        To the extent that any facts set forth in this disposition were the subject of
a sealing order by the district court, that order is lifted. In all other respects, the
order remains in effect.

                                           12
