                                                                           FILED
                           NOT FOR PUBLICATION                              MAY 18 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



JEROME LESLIE CLEMMONS, an                       No. 08-56686
individual, on behalf and as class
representative                                   D.C. No. 2:05-cv-05525-AHM-SH

             Plaintiff - Appellant,
                                                 MEMORANDUM *
  v.

CITY OF LONG BEACH, a municipal
corporation; Anthony Batts, an individual;
SKEEN #6060 Long Beach Officer;
MARTIN, #7123 Long Beach Officer;
VANDEN BOSCH, #006064 Long Beach
Officer;

             Defendants, and

COUNTY OF LOS ANGELES; LOS
ANGELES COUNTY SHERIFF’S
DEPARTMENT, a local public entity,

             Defendants - Appellees



                    Appeal from the United States District Court
                        for the Central District of California
                     A. Howard Matz, District Judge, Presiding



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                      Argued and Submitted February 2, 2010
                               Pasadena, California

Before: KLEINFELD, WARDLAW and CALLAHAN, Circuit Judges.

      Jerome Clemmons (“Jerome”) appeals the grant of summary judgment in

favor of the Los Angeles County Sheriff’s Department and the County of Los

Angeles (the “County”) on his § 1983 Monell claim of wrongful incarceration in

derogation of his due process rights. We affirm.

      The district court correctly concluded that the County violated Jerome’s

Fourteenth Amendment due process rights when it detained him for twenty-two

days under a warrant that named a different person—James Clemmons. See

Fairley v. Luman, 281 F.3d 913, 918 (9th Cir. 2002) (per curiam). Jerome was

arrested by City of Long Beach police officers on a warrant for the arrest of one

“James Clemmons.” 1 Jerome was then taken to court, where a judge ordered him

remanded to the custody of the County jail. Pursuant to the judge’s remand order,

the County then detained Jerome for twenty-two days, when it finally learned of

the mistaken identification underlying the arrest. Viewing the facts in a light most

favorable to Jerome, and based on his deposition testimony, Jerome repeatedly

protested his mistaken identity during his incarceration. Despite this, the County


      1
       The City of Long Beach defendants entered into a settlement agreement
with Clemmons and are no longer a party to this action.

                                          2
failed to verify that Jerome was not the “James Clemmons” named in the warrant

until July 19, 2004. The County’s failure to do so deprived Jerome of the due

process to which he was entitled. Id.

      Although Jerome’s constitutional rights were violated, the County may be

liable under 42 U.S.C. § 1983 only if it its employees acted pursuant to an

unconstitutional policy. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91

(1978). The County in fact had a policy in place to avoid incidents of mistaken

arrest and detention, which the district court correctly concluded is constitutional.

The County’s “Disputed Warrant Verification” process requires County employees

to promptly investigate complaints of mistaken identity, record such complaints in

a log book, and release detainees upon confirmation that the detention is based on

mistaken identification. Thus, the County is not deliberately indifferent to such

claims of deprivation of constitutional rights. See Oviatt v. Pearce, 954 F.2d 1470,

1474 (9th Cir. 1992).

      Jerome failed to establish that the County had an informal policy of

disregarding the Disputed Warrant Verification process. The evidence showed to

the contrary: that County employees regularly investigate mistaken identity claims

and release detainees upon verification that they are not the person named in the

warrant. Jerome’s showing that the County detained the wrong person on two


                                           3
prior occasions is insufficient to withstand summary judgment. See Trevino v.

Gates, 99 F.3d 911, 918 (9th Cir. 1996) (“Liability for improper custom may not

be predicated on isolated or sporadic incidents; it must be founded upon practices

of sufficient duration, frequency and consistency that the conduct has become a

traditional method of carrying out policy.”). Because the County cannot be held

liable under § 1983 for its employees’ isolated failure to abide by a constitutional

policy, the district court correctly entered summary judgment in its favor. Monell,

436 U.S. at 690-91.

      Assuming that Jerome’s allegations about repeated protests of mistaken

identity are true, then if the County employees had followed County policy

Jerome’s twenty-two day wrongful detention could have been prevented. The

County should take the necessary steps to ensure that its constitutional policy is

being followed. If sufficient evidence should demonstrate that the policy is only

honored in the breach, the conclusion that the County acts in accordance with a

constitutional policy would be undercut.

      AFFIRMED.




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