                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                            FILED
                            FOR THE NINTH CIRCUIT
                                                                             APR 06 2017
                                                                         MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS
YVONNE COTTA, individually and as                No.   15-15420
representative of the Estate of John Cotta,
and as guardian ad litem for Madison             D.C. No.
Cotta and Kaylianna Cotta, minors,               1:13-cv-00359-LJO-SMS

              Plaintiff-Appellant,
                                                 MEMORANDUM*
 v.

COUNTY OF KINGS; SHARI
HENDERSON, Sergeant,

              Defendants-Appellees,

 and

DAVE ROBINSON, Sheriff; DAVE
PUTNAM, Assistant Sheriff,

              Defendants.


                    Appeal from the United States District Court
                       for the Eastern District of California
                    Lawrence J. O’Neill, Chief Judge, Presiding

                       Argued and Submitted March 17, 2017
                            San Francisco, California


       *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: WALLACE, McKEOWN, and BYBEE, Circuit Judges.

      Plaintiff appeals from the district court’s judgment in favor of Defendants

Sergeant Henderson and the County of Kings on her claims under 42 U.S.C.

§ 1983 and California negligence law. We review the district court’s summary

judgment de novo, Bravo v. City of Santa Maria, 665 F.3d 1076, 1083 (9th Cir.

2011), and now affirm in part and reverse in part.

      1.     The district court did not err in granting summary judgment on

Plaintiff’s § 1983 claims against Sergeant Henderson. To establish a violation of

the Fourteenth Amendment right to be free from prison violence, a detainee must

show that prison officials were “deliberately indifferent” to a “substantial risk of

serious harm” to which the detainee was exposed. Castro v. Cty. of Los Angeles,

833 F.3d 1060, 1068–71 (9th Cir. 2016) (en banc). This standard is “more than

negligence but less than subjective intent—something akin to reckless disregard.”

Id. at 1071. In this circuit, the standard is an objective one, requiring proof that the

prison official “did not take reasonable available measures to abate [a serious risk

of substantial harm], even though a reasonable [official] in the circumstances

would have appreciated the high degree of risk involved.” Id.




                                           2
      Under these facts, no reasonable prison official would have been aware of a

substantial risk of serious harm. Most important of all, it was decedent himself

who asked Sergeant Henderson on numerous occasions for a transfer to his co-

defendant’s cell. Not only did the decedent fail to apprise Sergeant Henderson at

any point during his twenty-two-month incarceration—eleven of which he spent

with his co-defendant without any incidents—that he feared for his safety, he also

affirmatively indicated that he did not anticipate any problems with any inmates

while in custody. Sergeant Henderson’s own investigation and observations

indicated that the decedent and his co-defendant were friends who did not pose a

threat to one another. These circumstances do not evidence a substantial risk of

serious harm as a matter of law.1

      2.     Nor did the district court err in dismissing Plaintiff’s municipal

liability claims against the County under Monell v. Department of Social Services,

436 U.S. 658 (1978), and Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986).

Municipalities cannot be held liable when the individual prison official has

inflicted no constitutional injury. See Yousefian v. City of Glendale, 779 F.3d

1010, 1016 (9th Cir. 2015) (citing City of L.A. v. Heller, 475 U.S. 769, 799 (1986)


      1
        Plaintiff’s claim for interference with familial relations under the
Fourteenth Amendment is derivative of her claim for failure to protect; it was
therefore properly dismissed for identical reasons.
                                          3
(per curiam)). Because Sergeant Henderson did not inflict a constitutional injury,

the County cannot be held constitutionally liable for adopting its housing policy.

And to the extent Plaintiff challenges the County’s “communications

policy”—which, she contends, should have required courtroom bailiffs to

communicate to the County jail the risk of housing the decedent and his co-

defendant together—she simply never made that claim below. See Navajo Nation

v. U.S. Forest Serv., 535 F.3d 1058, 1080 (9th Cir. 2008) (“[O]ur precedents make

clear that where, as here, the complaint does not include the necessary factual

allegations to state a claim, raising such claim in a summary judgment motion is

insufficient to present the claim to the district court.”).

       3.     The district court erred, however, in dismissing Plaintiff’s wrongful

death claim against Sergeant Henderson. In California, prison officials owe

detainees a duty to protect them from foreseeable harm. See Giraldo v. Cal. Dep’t

of Corr. & Rehab., 85 Cal. Rptr. 3d 371, 386 (Cal. Ct. App. 2008). This standard

requires a much lower level of culpability than deliberate indifference. See Castro,

833 F.3d at 1071. And, under California’s comparative fault scheme, see Li v.

Yellow Cab Co., 532 P.2d 1226, 1242–43 (Cal. 1975), a jailer may be held partially

liable even if the harm was primarily due to the detainee’s own negligence.




                                             4
      Given this low threshold for liability, a reasonable jury could find that

Sergeant Henderson should have foreseen some risk in housing co-defendants

together without first ascertaining whether their defenses were adverse. Because

the district court erred in concluding otherwise, we remand this claim to the district

court. We express no opinion as to whether the district court should exercise

supplemental jurisdiction over this state law claim on remand. See Ove v. Gwinn,

264 F.3d 817, 826 (9th Cir. 2001).

      AFFIRMED in part and REVERSED in part.




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