                                                                              FILED
                           NOT FOR PUBLICATION                                NOV 15 2013

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


ALAN VAN ORDEN, personal                         No. 12-35520
representative of the Estate of Crystal
Rhea Bannister; ROBERT BANNISTER,                D.C. No. 4:10 cv-0385 BLW
a legal heir of Crystal Rhea Bannister;
MICHELLE WALESKE, a legal heir of
Crystal Rhea Bannister,                          MEMORANDUM*

              Plaintiffs - Appellants,

  v.

CARIBOU COUNTY; CARIBOU
COUNTY SHERIFF DEPT., an Office
controlled and directed by Caribou
County; RIC L. ANDERSON, Sheriff of
Caribou County; MICHAEL HADERLIE,
Commander of the Caribou County Jail;
BROCK LOPEZ, Detention Sergeant of
the Caribou County Jail; HEATH S.
DOWNS, Detention Deputy assigned to
the Caribou County Jail; BRANDY
BREDEHOFT, Detention Deputy assigned
to the Caribou County Jail; JUDY
PROBART LONG, Dispatcher employed
by Caribou County; JODI SUTER,
Dispatcher employed by Caribou County,

              Defendants - Appellees.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                    Appeal from the United States District Court
                              for the District of Idaho
                  B. Lynn Winmill, Chief District Judge, Presiding

                      Argued and Submitted October 10, 2013
                               Seattle, Washington

Before:      TASHIMA, GRABER, and MURGUIA, Circuit Judges.

      The Estate of Crystal Bannister and two of Crystal Bannister’s heirs

(collectively “Plaintiffs”) appeal from the district court’s order granting summary

judgment in favor of Defendants Caribou County, Caribou County Sheriff’s

Department (“County Defendants”), Heath Downs, Judy Long, and other

individual correctional-officer defendants (“Individual Defendants”) (collectively,

“Defendants”) on Plaintiffs’ 42 U.S.C. § 1983 and state-law negligence claims

arising out of Crystal Bannister’s August 25, 2009, suicide at the Caribou County

jail. The district court held that: (1) no reasonable jury could find that the

Individual Defendants were deliberately indifferent to Bannister’s medical needs

under Farmer v. Brennan, 511 U.S. 825 (1994); (2) the County Defendants could

not be liable under Monell v. New York City Department of Social Services, 436

U.S. 658 (1978), absent the liability of an Individual Defendant; and (3) Plaintiffs’

negligence claim could not proceed because Idaho law does not authorize survival


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actions. Plaintiffs appeal the first holding only with respect to Defendants Downs

and Long. Plaintiffs appeal the third holding with respect to all Defendants, except

Brett Smith. We review a district court’s grant of summary judgment de novo.

Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc). We reverse on all

three grounds.

      1.     The district court concluded, and we agree, that the conditions of

Bannister’s confinement posed an objectively substantial risk of serious harm to

Bannister by heightening the risk of her suicide. Cf. Conn v. City of Reno, 591

F.3d 1081, 1095–96 (9th Cir. 2010), vacated, 131 S. Ct. 1812 (2011), reinstated in

relevant part, 658 F.3d 897 (9th Cir. 2011); Simmons v. Navajo Cnty., 609 F.3d

1011, 1018 (9th Cir. 2010). We disagree, however, that no genuine issue of

material fact exists on the question of Downs’ and Long’s subjective awareness

under the second prong of Farmer. 511 U.S. at 837. Downs and Long knew that

Bannister had attempted suicide in the past and had been recently released from a

hospital. Bannister exhibited highly unstable behavior during her incarceration,

including hyperagitation, crying, and kicking at her cell door. Long’s comment

that she “assumed [Bannister was on] suicide watch” indicates her subjective

perception of Bannister’s condition, regardless of the objective accuracy of that




                                         -3-
perception. And circumstantial evidence supports the inference that Downs

overheard Bannister make at least one suicide threat.

      The fact that the jail received a fax from Bannister’s treating physician

stating that Bannister was “mentally and medically stable” does not alter our

conclusion. For one, no evidence in the record indicates that either Downs or Long

knew of the fax’s contents other than that it cleared Bannister for incarceration.

More importantly, Bannister’s condition substantially deteriorated in the hours

after the jail received the fax. At the least, there is a triable issue of fact whether

the fax precluded any possibility of Downs and Long’s subjective awareness, given

their limited knowledge of its contents and the effect of intervening events.

Indeed, Long’s assumption that Bannister was “on suicide watch” suggests that the

fax was not “completely antithetical to any suggestion [Bannister] was suicidal.”

      Because Bannister actively manifested her suicidality in the hours

immediately preceding her suicide, we hold that the district court erred in

concluding that no reasonable jury could find that Downs and Long were

subjectively aware of a substantial risk of serious harm to Bannister. See Conn,

591 F.3d at 1097–98; cf. Simmons, 609 F.3d at 1018–19; Clouthier v. Cnty. of

Contra Costa, 591 F.3d 1232, 1246–48 (9th Cir. 2010).




                                           -4-
      2.     The district court granted summary judgment to County Defendants

on Plaintiffs’ Monell claims because there was no underlying deprivation of

Bannister’s constitutional rights. Because we reverse summary judgment on

Plaintiffs’ § 1983 claims against Downs and Long, we remand to the district court

for consideration of County Defendants’ liability under Monell.

      We also note, as Plaintiffs correctly contend, that “[t]wo different paths to

municipal liability [may] apply to this case.” In addition to predicating municipal

liability on a showing that an Individual Defendant violated Bannister’s

constitutional rights, a municipality may be liable under Monell, even if no

employee is found individually liable. See Tsao v. Desert Palace, Inc., 698 F.3d

1128, 1142–43 (9th Cir. 2012); Gibson v. Cnty. of Washoe, 290 F.3d 1175, 1186

n.7 (9th Cir. 2002); Fairley v. Luman, 281 F.3d 913, 917 & n.4 (9th Cir. 2002) (per

curiam); see also City of Canton v. Harris, 489 U.S. 378, 382, 393 (1989). Thus it

remains open on remand for the district court to consider County Defendants’

liability apart from the liability of any Individual Defendant.

      3.     Lastly, we reverse the district court’s grant of summary judgment

against Plaintiffs on their state-law negligence claim. The district court construed

it as a survival claim and granted summary judgment because Idaho law does not

authorize survival actions. Plaintiffs contend that they alleged a wrongful death


                                          -5-
claim, not a survival claim, and that the district court misunderstood their remarks

regarding this claim. Pleadings need not specify particular legal theories, but only

claims for relief, see Alvarez v. Hill, 518 F.3d 1152, 1157 (9th Cir. 2008); Crull v.

GEM Ins. Co., 58 F.3d 1386, 1391 (9th Cir. 1995), and Plaintiffs adequately

pleaded the factual content of a wrongful death claim, see Castorena v. Gen. Elec.,

238 P.3d 209, 220 (Idaho 2010); Hayward v. Valley Vista Care Corp., 33 P.3d 816,

821 (Idaho 2001). The parties and the district court miscommunicated at the

motions hearing, mistaking the arguments over the survivability of Plaintiffs’ §

1983 claims for the arguments over Plaintiffs’ negligence claim. Because we

remand to the district court for consideration of the claim as a wrongful death

claim, we do not consider any of Defendants’ possible defenses.

      The judgment of the district court is reversed and the case is remanded for

further proceedings consistent with this disposition.

      REVERSED and REMANDED.




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