                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 MAURICE P. OLIVIER, AKA Maurice                   No. 13-56371
 Pierre Olivier,
                 Plaintiff-Appellant,                D.C. No.
                                                  2:08-cv-07169-
                      v.                            JFW-AGR

 LEROY D. BACA, Los Angeles
 County Sheriff of Custody                            OPINION
 Operations,
                 Defendant-Appellee.


         Appeal from the United States District Court
            for the Central District of California
          John F. Walter, District Judge, Presiding

           Argued and Submitted August 10, 2018
                   Pasadena, California

                      Filed January 11, 2019

Before: Consuelo M. Callahan and Jacqueline H. Nguyen,
   Circuit Judges, and David A. Ezra,* District Judge.

                   Opinion by Judge Callahan


    *
      The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
2                         OLIVIER V. BACA

                            SUMMARY**


                       Prisoner Civil Rights

    The panel affirmed the district court’s summary judgment
in favor of defendant Sheriff Baca in a 42 U.S.C. § 1983
action alleging that Baca violated plaintiff’s Fourteenth
Amendment rights by failing to provide him with a bed
during his three-and-a-half day stay at the Los Angeles
Inmate Reception Center while he was a pretrial detainee.

    The panel held that the Los Angeles Sheriff’s Department
was well within the scope of its authority to maintain security
when it carried out the lockdowns that delayed plaintiff’s
transfer to permanent housing, resulting in three-and-a-half
days without a bed. The panel held that, in view of the
deference the Supreme Court has prescribed in the area of
correctional facility policy, along with Baca’s clarifications
of the rationale underlying Department procedures, there
was no basis in the record on which to conclude that the
response to the inmate disturbances constituted an
unnecessary or unjustified response to problems of jail
security.

    The panel further held that even if a Fourteenth
Amendment violation did occur, the district court correctly
held that Baca was entitled to qualified immunity because the
right asserted by plaintiff—not being forced to sleep on the
floor during a jail lockdown—was not clearly established at
the time of the events.

    **
       This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                      OLIVIER V. BACA                        3

                         COUNSEL

R. Chris Lim (argued), Los Feliz Law APC, Los Angeles,
California, for Plaintiff-Appellant.

Jonathan Carl Magno (argued), Daniel Lee, and Paul B.
Beach, Lawrence Beach Allen & Choi PC, Glendale,
California, for Defendant-Appellee.


                         OPINION

CALLAHAN, Circuit Judge:

     On the night of July 12, 2006, Plaintiff-Appellant Maurice
Olivier (“Olivier”) was arrested and taken to the Los Angeles
County Inmate Reception Center (“IRC”) for processing into
permanent housing. Due to a series of disturbances by
inmates and lockdowns throughout the Los Angeles County
jail system, Olivier was not transferred to permanent housing
until the afternoon of July 16, 2006. Olivier brought an
action under 42 U.S.C. § 1983 against Defendant-Appellee
Sheriff Leroy Baca (“Baca”) in Baca’s official and individual
capacities, alleging that Baca violated his Fourteenth
Amendment rights by failing to provide him with a bed
during his three-and-a-half day stay at the IRC. The district
court granted summary judgment in Baca’s favor, holding
that Olivier had not raised a genuine issue of material fact as
to whether disturbances by inmates and lockdowns
constituted exigent circumstances justifying the floor
sleeping. Olivier appeals. We affirm and hold that the
exigent circumstance of inmate disturbances and lockdowns
justified denying Olivier a bed for his three-and-a-half day
stay at the IRC.
4                        OLIVIER V. BACA

 I. FACTUAL AND PROCEDURAL BACKGROUND

                                  A.

    On May 25, 2006, Olivier was arrested by the Los
Angeles Police Department for burglary. He was processed
into permanent housing at Los Angeles Men’s Central Jail
(“MCJ”) but erroneously released on July 7, 2006. On July
12, 2006, the Los Angeles County Sheriff’s Department
(“LASD”) located and again arrested Olivier. At 9:56 p.m.,
he arrived at the IRC for processing into the county jail
system.1

   Upon Olivier’s arrival at the IRC, he was determined to
have health issues. Consequently, Olivier was sent to the
medical screening area of the IRC where he waited on a
bench for an examination, along with around 100 other
people.

    LASD officials determined that Olivier could be properly
housed only at MCJ in light of his medical needs, his
classification as a non-high risk inmate without mental




    1
      The IRC serves as a hub for processing incoming and outgoing
inmates in the jail system. The process occurs in three stages:
(1) “booking front,” which involves an initial interview, screening, and
photograph; (2) “class rear,” which involves medical screening,
fingerprinting and housing classification; and (3) “custody line,” where
inmates are fed, provided medication if applicable, and picked up by
personnel from the housing facility to which they are assigned. On
average, more than 300 inmates are processed daily at the IRC.
                          OLIVIER V. BACA                                5

illness, and the proximity of MCJ to the venue of his
underlying criminal case.2

    While Olivier was being processed at the IRC for transfer
to MCJ, inmates at jail facilities across Los Angeles County
repeatedly divided themselves along racial lines and fought.
This string of inmate disturbances persisted for approximately
three days and necessitated lockdowns at multiple facilities,
which, in turn, delayed processing at the IRC. LASD logs
and declarations from LASD personnel provide accounts of
the disturbances.3




    2
       In 2006, the LASD operated three housing facilities for male
inmates within the Los Angeles County jail system: MCJ, Twin Towers
Correctional Facility, and Pitchess Detention Center. Twin Towers
housed exclusively inmates with high security risk classifications, inmates
suffering from severe mental illness, and sexually violent inmates.
Pitchess did not have medical services that would have accommodated
Olivier’s claimed medical condition. Additionally, Pitchess is located
more than forty-five miles by road from the venue where Olivier’s
criminal case was scheduled. MCJ was thus the only suitable permanent
housing for Olivier.
    3
      On July 13, 2006, at 8:30 a.m., the IRC class rear was closed due to
inmate fighting, causing inmate processing at the IRC to stop. On July 13
at 4:30 p.m., approximately 100 IRC custody line inmates could not be
transferred due to inmate disturbances at Pitchess Detention Center. On
July 13, Twin Towers was placed on full lockdown. From 11:15 p.m. on
July 13 until 1:20 a.m. on July 14, inmate rioting occurred at the MCJ. On
July 14, the MCJ remained on full lockdown from 2:05 p.m. to 8:09 p.m.
From July 14 at 10:45 p.m. into the following days, the IRC’s class rear
and custody line were placed on lockdown. On July 15 at 9:30 a.m., and
again at 6:00 p.m., the IRC booking front was on lockdown. On July 15,
MCJ was on lockdown until late in the day. On July 16, Twin Towers was
on lockdown from 6:00 a.m. to 9:00 a.m.
6                         OLIVIER V. BACA

    Olivier remained at the IRC for the duration of the inmate
disturbances, lockdowns, and post-lockdown procedures
before being transferred to MCJ on July 16. In total, Olivier
was held at the IRC for approximately three-and-a-half days.
Olivier testified that although there were benches in the cell
where he was held, there was inadequate space to
accommodate the number of detainees at the IRC. Olivier
testified that no one slept on the benches because trying to do
so would have led to a fight. As a result, Olivier slept on the
floor during his time at the IRC. Olivier testified that he
never asked for “a mattress, blankets, or any other sort of
padding.”

    After the lockdowns began on July 13, the first time
inmates were picked up from the IRC custody line was on
July 16 around 2:00 a.m. Olivier was transferred to the MCJ
at 1:14 p.m. on July 16.

                                  B.

    On October 30, 2008, Olivier filed a complaint in district
court alleging civil rights violations related to both his
extended stay at the IRC and events that occurred after he
was transferred to MCJ.4 The district court dismissed certain
aspects of Olivier’s original claims, and Olivier amended his
complaint several times. By the time the case reached the
summary judgment stage, the only remaining claim relevant
to this appeal was a Fourteenth Amendment claim against


    4
       Olivier’s claims relating to his experiences at MCJ were dismissed,
aside from a Fourteenth Amendment claim regarding exposure to lice in
his jail cell. The complaint also named a number of defendants in addition
to Baca. On July 10, 2010, the district court dismissed all defendants
except Baca.
                      OLIVIER V. BACA                         7

Baca in his official and individual capacities regarding
Olivier’s being forced to sleep on the floor at the medical
intake area of the IRC.

    Baca filed a motion for summary judgment. After the
magistrate judge recommended denying the motion for lack
of evidence that exigent circumstances existed, the district
court gave Baca an opportunity to supplement the record.
Baca then submitted additional declarations by LASD
officials. In 2013, the Operations Deputy at the IRC
explained that in response to such disturbances a large
proportion of jail staff must work to restore order. Jail
personnel who do not respond to the disturbances and remain
in other areas of the facility are, therefore, likely to be
significantly outnumbered by inmates. Consequently, normal
operations must be suspended and the entire facility placed on
lockdown until order is restored and the staff-to-inmate ratio
returns to normal in all areas of the jail. As part of a
lockdown, no inmates are permitted to move in or out of the
facility. This means inmate transfers to permanent housing
are cancelled by the IRC for the duration of a lockdown. A
lockdown at a facility in Los Angeles County may thus
prolong processing times at the IRC. The Operations Deputy
further explained that a lockdown in any one of the booking
front, class rear, or custody line stages necessarily results in
a lockdown in the other areas because each stage operates in
connection with the others.

    An LASD sergeant assigned to the MCJ during the time
of the disturbances explained that after a lockdown is lifted,
inmate movement cannot immediately resume. Following a
lockdown caused by inmate disturbances, detention facility
personnel must conduct thorough security checks, survey
property damage, and address medical needs. These post-
8                     OLIVIER V. BACA

lockdown procedures naturally lead to delays in inmate
processing in excess of the length of the lockdowns
themselves.

    The magistrate judge concluded that the newly
supplemented record conclusively demonstrated that the Los
Angeles County jail system experienced exigent
circumstances due to the disturbances and lockdowns. The
magistrate judge recommended granting Baca’s motion for
summary judgment in its entirety. On July 19, 2013, the
district court accepted the magistrate judge’s
recommendations, granted summary judgment in favor of
Baca, and dismissed the case with prejudice.

              II. STANDARD OF REVIEW

    A district court’s order granting summary judgment is
reviewed de novo. McDonald v. Sun Oil Co., 548 F.3d 774,
778 (9th Cir. 2008). The party moving for summary
judgment bears the initial burden of identifying those portions
of the pleadings, discovery and affidavits which demonstrate
the absence of a genuine issue of material fact. Celotex Corp.
v. Cattrett, 477 U.S. 317, 323 (1986). Where, as here, the
opposing party will have the burden of proof at trial, the
moving party need only point out “that there is an absence of
evidence to support the nonmoving party’s case.” Id. at 325.

                      III. ANALYSIS

    A pretrial detainee is

       protected by the Fourteenth Amendment’s
       Due Process Clause . . . . Under the Due
       Process Clause, detainees have a right against
                      OLIVIER V. BACA                        9

       jail conditions or restrictions that amount to
       punishment.        This standard differs
       significantly from the standard relevant to
       convicted prisoners, who may be subject to
       punishment so long as it does not violate the
       Eighth Amendment’s bar against cruel and
       unusual punishment.

Pierce v. Cty. of Orange, 526 F.3d 1190, 1205 (9th Cir. 2008)
(internal citations and quotation marks omitted). For Olivier
to state an actionable claim against Baca in his official
capacity, Olivier must show that “the action that is alleged to
be unconstitutional implements or executes a policy
statement, ordinance, regulation, or decision officially
adopted and promulgated by that body’s officers.” Monell v.
Dep’t of Soc. Servs. of the City of New York, 436 U.S. 658,
690 (1978). Local entities may also be “sued for
constitutional deprivations visited pursuant to governmental
‘custom’ even though such a custom has not received formal
approval through the body’s official decisionmaking
channels.” Id. at 690–91. For Olivier to state an actionable
claim against Baca in his individual capacity, he must show
that Baca was personally involved in his alleged
constitutional deprivation by, for example, acting, or failing
to act, in a manner that was deliberately indifferent to
Olivier’s constitutional rights. Starr v. Baca, 652 F.3d 1202,
1206 (9th Cir. 2011).

                              A.

    Olivier argues that summary judgment was improper
because the evidence in the record establishes a triable issue
as to whether the disturbances by inmates and lockdowns
justified his floor sleeping.
10                    OLIVIER V. BACA

    It has long been recognized that “central to all other
corrections goals is the institutional consideration of internal
security within the corrections facilities themselves.” Pell v.
Procunier, 417 U.S. 817, 823 (1974). The Supreme Court
has explained that measures to preserve security and order
“may require limitation or retraction of the retained
constitutional rights of both convicted prisoners and pretrial
detainees.” Bell v. Wolfish, 441 U.S. 520, 546 (1979). In this
regard, corrections officials “should be accorded wide-
ranging deference in the adoption and execution of policies
and practices that in their judgment are needed to preserve
internal order and discipline and to maintain institutional
security.” Id. at 547; Bull v. City and Cty. of San Francisco,
595 F.3d 964, 972 (9th Cir. 2010) (en banc). The Supreme
Court has reaffirmed this principle, explaining that—in
addressing a § 1983 claim brought by a pretrial detainee—
“courts must defer to the judgment of correction officials
unless the record contains substantial evidence showing their
policies are an unnecessary or unjustified response to
problems of jail security.” Florence v. Bd. of Chosen
Freeholder of Cty. of Burlington, 566 U.S. 318, 322–23
(2012).

    In the context of disturbances by inmates and lockdowns,
we have held that such issues can delay detention facility
procedures and temporarily restrict certain rights without
violating the Eighth Amendment. See, e.g., Noble v. Adams,
646 F.3d 1138, 1142–43 (9th Cir. 2011); Norwood v. Vance,
591 F.3d 1062, 1069 (9th Cir. 2010). In Noble, we held that
a three-month curtailment of prisoners’ outside exercise
rights in response to a riot that hospitalized nine prison staff
was not a violation of their Eighth Amendment rights.
646 F.3d at 1143. We stated that it was not yet clearly
established “precisely how, according to the Constitution, or
                      OLIVIER V. BACA                        11

when a prison facility housing problem inmates must return
to normal operations . . . during and after a state of
emergency called in response to a major riot.” Id. In
Norwood, we explained that “[o]fficials must balance [the
duty to keep inmates safe] against other obligations that our
laws impose . . . . ‘[P]rison officials have a right and duty to
take the necessary steps to reestablish order in a prison when
such order is lost.’” 591 F.3d at 1069 (quoting Hoptowit v.
Ray, 682 F.2d 1237, 1259 (9th Cir. 1982)).

     Although Noble and Norwood involve prisoners and
Eighth Amendment rights, the same considerations are
relevant in the pretrial detainee context. Jails, just like
prisons, “are responsible for maintaining internal order and
discipline [and] for securing their institutions against
unauthorized access or escape.” Bell, 441 U.S. at 548 n.30
(quoting Procunier v. Martinez, 416 U.S. 396, 404 (1974)).
Further, “[t]here is no basis for concluding that pretrial
detainees pose any lesser security risk than convicted
inmates.” Bell, 441 U.S. at 546 n.28. The district court in
Thomas v. Baca, 514 F. Supp. 2d 1201, 1225 (C.D. Cal.
2007), for example, recognized this principle when it
suggested an exception to the general rule that each inmate in
LASD facilities must be provided with a bunk: “A sudden,
extreme rise in inmate population caused by an acute event,
such as a civil disturbance, may affect the length of time that
is reasonable for processing.”

    Here, LASD was well within the scope of its authority to
maintain security when it carried out the lockdowns that
delayed Olivier’s transfer to permanent housing, resulting in
three-and-a-half days without a bed. The evidence is
uncontroverted that, over this period of time, LASD was
confronted with emergencies that threatened the safety and
12                      OLIVIER V. BACA

security of its facilities. It is also clear that the jail officials’
response to the security threats was reasonable in its scope
and effective in controlling the disturbances. See Bell,
441 U.S. at 540 (“Restraints that are reasonably related to the
institution’s interest in maintaining jail security do not,
without more, constitute unconstitutional punishment, even
if they are discomforting . . . .”). Indeed, Olivier was
promptly transferred to permanent housing after the
disturbances had been controlled. Thus, in view of the “wide-
ranging deference,” id. at 547, the Supreme Court has
prescribed in the area of correctional facility policy, along
with Baca’s clarifications of the rationale underlying LASD
procedures, there is no basis in the record on which to
conclude that LASD’s response to the inmate disturbances
constituted “an unnecessary or unjustified response to
problems of jail security.” Florence, 566 U.S. at 322.

    Olivier relies on Thomas v. Ponder, 611 F.3d 1144, 1155
(9th Cir. 2010), to support his argument that his holdover at
the IRC raises an issue of material fact, but Ponder is
distinguishable. In Ponder, we held that an indefinite
deprivation of out-of-cell exercise lasting for fourteen months
raised a genuine issue of material fact as to whether the
prison officials acted reasonably. Id. at 1156. The first two
months of deprivation of out-of-cell activity was due to a
prison-wide lockdown in the wake of stabbings of two
correctional officers. Id. Prison officials argued that
prolonging the plaintiff’s punishment for an additional year
was justified, in part, because of “occasional documented
threats” that ensued. Id. We rejected the prison officials’
argument, finding that a genuine issue of material fact existed
as to whether the 14-month deprivation was reasonable. Id.
at 1152.
                           OLIVIER V. BACA                              13

    Here, in contrast, the evidence shows that LASD
addressed a nearly uninterrupted series of riots and civil
disturbances involving hundreds of inmates, and resumed
normal operations within a matter of hours after jail officials
regained control of their facilities. The differences in both
the extent of the civil disturbances and the length of the
deprivation make Ponder unhelpful to Olivier’s argument.5

                                    B.

    Olivier also argues that the district court erred in granting
summary judgment in favor of Baca based on qualified
immunity. He contends that, although the specific issue of
floor sleeping during inmate processing due to exigent
circumstances had not been held unconstitutional, “the
unlawfulness was apparent under the circumstances.” Olivier
further contends that Baca should have been “prohibit[ed] . . .
from arguing . . . qualified immunity . . . [b]ased upon
Appellant’s collateral estoppel arguments.”

   “Qualified immunity shields federal and state officials
from money damages unless a plaintiff pleads facts showing

    5
       Olivier also argues that an inference is proper that the disturbances
and lockdowns that led to his holdover at the IRC were natural
consequences of prison overcrowding. He contends that if such
disturbances are common they should not excuse constitutional violations.
Olivier, however, has not presented any admissible evidence to
demonstrate, as he claims, that riots were the natural and foreseeable
consequences of overcrowding in Los Angeles County jails. Olivier cites
in his brief two internet articles—published over ten years after the events
at issue—reporting generally on overcrowding in Los Angeles jails.
However, as these articles were not in the record before the district court,
they do not undermine the district court’s decision. See U.S. v. W.R.
Grace, 504 F.3d 745, 766 (9th Cir. 2007). Accordingly, we reject this
argument.
14                     OLIVIER V. BACA

(1) that the official violated a statutory or constitutional right,
and (2) that the right was ‘clearly established’ at the time of
the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731,
735 (2011). For a right to be “clearly established,” existing
“precedent must have placed the statutory or constitutional
question beyond debate,” such that “every” reasonable
official would have understood that he was violating a clearly
established right. Id. at 741. “This is not to say that an
official action is protected by qualified immunity unless the
very action in question has previously been held unlawful, but
it is to say that in the light of pre-existing law the
unlawfulness must be apparent.” Anderson v. Creighton,
483 U.S. 635, 640 (1987) (citation omitted). The burden is
on the party contesting qualified immunity to show that a law
was clearly established at the time of an alleged violation.
Davis v. Scherer, 468 U.S. 183, 197–98 (1984).

    Olivier has not demonstrated that the law regarding floor
sleeping, in the context of exigent circumstances, was or is
clearly established. Thompson v. City of Los Angeles,
885 F.2d 1439, 1448 (9th Cir. 1989), overruled on other
grounds by Bull, 595 F.3d at 981, and Rutherford v. Pitchess,
457 F. Supp. 104, 109 (C.D. Cal. 1978), held that forcing
detainees to sleep on the ground is a constitutional violation.
However, those cases did not involve exigent circumstances,
and thus any “unlawfulness” cannot be said to have been
“apparent” to Baca in the context of the inmate disturbances
at issue here. Olivier also cites Thomas to support his
argument that it is clearly established that inmate processing
should take no longer than twenty-four hours. 514 F. Supp
2d at 1215. Thomas, a district court decision, was not
decided until over a year after the events at issue, so that case
could not have “placed the . . . constitutional question beyond
debate” at the time of Olivier’s delay at the IRC. See al-Kidd,
                         OLIVIER V. BACA                            15

563 U.S. at 741. Additionally, Thomas explicitly recognized
an exception to its general inmate processing guidelines for
exigent circumstances such as civil disturbances. 514 F.
Supp. 2d at 1218–19.

    Finally, we reject Olivier’s argument that collateral
estoppel should have prevented Baca from claiming qualified
immunity. Collateral estoppel bars successive litigation of an
issue of fact or law actually litigated and resolved in a prior
court determination even if the issue recurs in the context of
a different claim. See Howard v. City of Coos Bay, 871 F.3d
1032, 1040–41 (9th Cir. 2017). The issue presented in this
case—floor sleeping due to exigent circumstances—was not
addressed in any of the cases cited by Olivier, and the district
court in Thomas specifically recognized an exigent
circumstances exception to its holding that floor sleeping is
unconstitutional. 514 F. Supp. 2d at 1218–19. Accordingly,
collateral estoppel does not apply.

   In sum, Olivier has not shown that a genuine issue of
material fact exists as to whether Baca was entitled to
qualified immunity.6

                                  C.

    Olivier also argues that the district court abused its
discretion by: (1) declining to transfer the case to another
courtroom as a related case; (2) failing to authorize punitive
damages against Baca; (3) failing to take judicial notice of his


    6
     Baca also argues that Olivier failed to exhaust the administrative
remedies available to him under the Prison Litigation Reform Act.
Because we hold that the district court did not err in granting summary
judgment, we do not reach this issue.
16                     OLIVIER V. BACA

opposition motion; and (4) admitting declarations from
LASD officials. None of these arguments is persuasive.

    First, the district court did not abuse its discretion by
declining to transfer the case because the record does not
indicate that Olivier filed a Notice of Related Civil Cases, as
he was required to do for the district court to consider
transferring the case. C.D. Cal. R. 83-1.3.1. Second, punitive
damages are not available against Baca in his official
capacity, see Mitchell v. Dupnik, 75 F.3d 517, 527 (9th Cir.
1996), and Olivier’s claim for punitive damages against Baca
individually is moot in light of our holding that Baca is
entitled to qualified immunity. Third, the district court did
not abuse its discretion by declining to take judicial notice of
Olivier’s opposition motion because “[l]egal memoranda . . .
are not evidence, and do not create issues of fact capable of
defeating an otherwise valid motion for summary judgment.”
Flaherty v. Warehousemen, Garage & Serv. Station Empls.’
Local Union No. 334, 574 F.2d 484, 486 n.2 (9th Cir. 1978).
Finally, the district court did not abuse its discretion by
admitting declarations from LASD officials because the
officials had personal knowledge of both the events and the
LASD procedures at issue. Fed. R. Civ. P. 56(c)(4); see, e.g.,
S.E.C. v. Phan, 500 F.3d 895, 913 (9th Cir. 2007).

                    IV. CONCLUSION

    Olivier has not presented a basis for disturbing the district
court’s judgment. The evidence is uncontroverted and
summary judgment was proper as a matter of law. In
addition, even if a Fourteenth Amendment violation did
occur, the district court correctly held that Baca is entitled to
qualified immunity because the right asserted by Olivier—not
being forced to sleep on the floor during a jail
                      OLIVIER V. BACA                        17

lockdown—was not clearly established at the time of the
events. Finally, Olivier has not shown that the district court
abused its discretion in rejecting his various ancillary claims.
AFFIRMED.
