                                                                              FILED
                           NOT FOR PUBLICATION                                 FEB 18 2015

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



                            FOR THE NINTH CIRCUIT


JOSEPH DE VINCENZI,                              No. 13-15041

              Plaintiff - Appellee,              D.C. No. 2:11-cv-03268-KJM-
                                                 DAD
  v.

CITY OF CHICO; TRAVIS DYKE, AKA                  MEMORANDUM*
Stephen Dyke; MIKE FRAKES,

              Defendants - Appellants.


                   Appeal from the United States District Court
                      for the Eastern District of California
                   Kimberly J. Mueller, District Judge, Presiding

                     Argued and Submitted February 5, 2015
                            San Francisco, California

Before: TALLMAN and RAWLINSON, Circuit Judges, and DEARIE, Senior
District Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable Raymond J. Dearie, Senior United States District
Judge for the Eastern District of New York, sitting by designation.
      Joseph De Vincenzi filed a 42 U.S.C. § 1983 action against Officers Travis

Dyke and Mike Frakes (“the officers”), and the City of Chico, alleging civil rights

violations for failing to find and remove from his person a butane lighter during

their brief search incident to arrest, and for ignoring his cries for help for a period

after he had set himself on fire. The officers, in turn, filed a Fed. R. Civ. P.

12(b)(6) motion seeking the protection of qualified immunity. The district court

denied their motion to dismiss, and this interlocutory appeal followed. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

      Construing all facts in the light most favorable to De Vincenzi at this stage

of the case, see Frudden v. Pilling, 742 F.3d 1199, 1202 (9th Cir. 2014), the

amended complaint alleges that the officers knew De Vincenzi was inebriated,

“had a history of psychiatric illness, had on several occasions attempted suicide,

and had a history of being [institutionalized by state authorities] for being a danger

to himself and others.” Despite an awareness of this history, the officers either

failed to locate or decided not to remove a butane cigarette lighter from

De Vincenzi’s pocket. While being transported to the police station, De Vincenzi

was banging his head on the plexiglass screen, kicking at the metal bars covering

the windows, shouting, and making suicide threats. The officers shackled his

hands and feet and placed him in the back of a transport van, where he attempted to


                                           2
light a cigarette. De Vincenzi either accidentally set his clothing on fire or he

actually attempted to commit suicide by self-immolation. De Vincenzi’s amended

complaint alleges that the officers “knew of the danger of an attempt to injure

himself but consciously ignored [De Vincenzi’s] cries for help until [he] received

vastly more serious burns than if [the officers] had properly monitored him.”

De Vincenzi suffered severe second and third degree burns over 32% of his body.

      De Vincenzi alleges the officers violated his due process rights to receive

adequate medical care under the Fourteenth Amendment by failing to protect him

from self-inflicted harm while he was in police custody.1 To establish a violation

of this constitutional right, De Vincenzi must show the officers were deliberately

indifferent to his serious medical needs. See Gibson v. Cnty. of Washoe, Nev., 290

F.3d 1175, 1194 (9th Cir. 2002). “A heightened suicide risk or an attempted

suicide is a serious medical need.” Conn v. City of Reno, 591 F.3d 1081, 1095 (9th

Cir. 2009), as amended. De Vincenzi has pleaded sufficient facts to meet the first

prong.




      1
         De Vincenzi also alleges the City of Chico has a custom and policy of
failing to monitor people in custody while in the transport van. Because
municipalities are not entitled to qualified immunity, we lack jurisdiction to review
this Monell claim at this juncture. See Swint v. Chambers Cnty. Comm’n, 514 U.S.
35, 43 (1995).

                                          3
      De Vincenzi offers two theories for proving that the officers’ state of mind

constituted deliberate indifference to his heightened suicide risk. First, he alleges

the officers failed either to locate or to remove the cigarette lighter from his pocket

upon searching him. This allegation asserts, at best, a negligence claim. Cf.

Farmer v. Brennan, 511 U.S. 825, 835 (1994) (“[D]eliberate indifference describes

a state of mind more blameworthy than negligence.” (emphasis added)). However,

De Vincenzi’s second theory is that the officers “consciously ignored [his] cries for

help,” causing him to suffer “vastly more serious burns.” This allegation

establishes the requisite mens rea element of deliberate indifference.2 Cf. id. at 837

(defining the standard). That allegation is sufficient to survive a motion to dismiss

and proceed to discovery.

      Furthermore, the officers’ duty to provide adequate medical care, including

suicide prevention, was clearly established as of December 2009. See Conn, 591

F.3d at 1102. A reasonable officer would assume such a duty extends to

responding to the cries for help from an incapacitated arrestee who is on fire.

De Vincenzi alleges that the officers heard his cries but delayed his rescue, and




      2
        This same allegation sufficiently pleads causation for the purposes of
surviving a Rule 12(b)(6) motion. Cf. Conn, 591 F.3d at 1098-102.

                                           4
thus he has sufficiently pleaded facts that could plausibly give rise to a § 1983

claim under which the officers may not be entitled to qualified immunity.

      The district court is free to revisit entitlement to qualified immunity after

discovery and a properly presented summary judgment motion.

      AFFIRMED.




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