Gary Salzman v. County of Los Angeles

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 7, 2024
• Docket: 22-56088
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 7 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

GARY SALZMAN, individually; MARY No. 22-56088 SALZMAN, individually; CHLOE BROCKWAY, individually and as Personal D.C. No. Representative of the Estate of Gary Salzman 2:22-cv-00094-PA-SK Jr., deceased; T.J., by and through Guardian Ad Litem, Jennifer Jones, MEMORANDUM* Plaintiffs-Appellants,

v.

COUNTY OF LOS ANGELES, a Governmental Entity; SHOHREH GHAEMIAN, individually; ERIKA UBOM, Individually; AYALA, individually; TAELYR PATTON, individually; MARIA CARMICHAEL, individually; SKERRETT, individually; CASTRO; ARANDA, individually; ROSE, individually,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Percy Anderson, District Judge, Presiding

Argued and Submitted February 6, 2024 Pasadena, California

Before: WARDLAW, FRIEDLAND, and SUNG, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Gary Salzman, Mary Salzman, Chloe Brockway, and “T.J.” (“Appellants”)

appeal the district court’s grant of summary judgment to the County of Los

Angeles (“County”) and individual defendants Maria Carmichael, Shohreh

Ghaemian, Taelyr Patton, Jose Ayala, Raul Castro, Daniel Rose, Carlton Skerrett,

Erika Ubom, and Benjamin Aranda in this 42 U.S.C. § 1983 action. Appellants

alleged deliberate indifference to a substantial risk of harm to health and safety,

supervisorial liability, liability under Monell v. Department of Social Services, 436

U.S. 658 (1978), and state law claims arising out of the death of pretrial detainee

Gary Salzman, Jr. (“Salzman”). We have jurisdiction under 28 U.S.C. § 1291, and

we affirm.

Following a prior arrest and referral to a psychiatric hospital under

California Welfare & Institutional Code § 5150, Salzman was arrested for robbery

on June 22, 2020, and was again booked into the Los Angeles County Twin

Towers Correctional Facility (“TTCF”). During the intake process, custody staff

observed that Salzman exhibited rapid mood changes and falsely insisted that he

was a “5-star general.” Erika Ubom, a registered nurse, referred him for a medical

and expedited mental health assessment. Maria Carmichael, a licensed clinical

social worker, evaluated Salzman and recommended his transfer to a temporary

solo cell in High Observation Housing (“HOH”), where he would receive a

reassessment by a mental health professional within 24 hours. Dr. Shohreh

2 Ghaemian, a psychiatrist, evaluated Salzman and concluded that he was grandiose

and psychotic. Salzman told Dr. Ghaemian that he suffered from post-traumatic

stress disorder and bipolar disorder. Dr. Ghaemian ordered medication and

recommended dual housing in the HOH unit. Meanwhile, Miguel Escobar, who

also suffered from mental health issues, was arrested, evaluated, and also

recommended for cohabitation in a HOH cell. Non-defendant staff members

housed Salzman with Escobar, who in an approximately fifteen-minute attack on

July 5, 2020, killed Salzman in their shared cell.

1. The district court properly granted summary judgment in favor of the

individual defendant deputies and medical staff members on Appellants’ deliberate

indifference claims. To establish a 14th Amendment claim of deliberate

indifference to a substantial risk of harm to health and safety, Appellants must

demonstrate: (1) the “defendant made an intentional decision with respect to the

conditions under which the plaintiff was confined;” (2) “[t]hose conditions put the

plaintiff at substantial risk of suffering serious harm;” (3) “[t]he defendant did not

take reasonable available measures to abate that risk, even though a reasonable

officer in the circumstances would have appreciated the high degree of risk

involved—making the consequences of the defendant’s conduct obvious;” and (4)

“[b]y not taking such measures, the defendant caused the plaintiff’s injuries.”

Castro v. Cnty of Los Angeles, 833 F.3d 1060, 1071 (9th Cir. 2016) (en banc). We

3 consider the actions and omissions of each defendant in turn. See Leer v. Murphy,

844 F.2d 628, 633–34 (9th Cir. 1988).

a. Maria Carmichael conducted Salzman’s initial mental health evaluation.

Finding Salzman “hostile, agitated, uncooperative, [and] delusional,” Carmichael

was unable to complete a full suicide risk evaluation and defaulted to deeming him

at medium risk of suicide. Carmichael assigned Salzman a P31 rating and

recommended single-man HOH, which guaranteed another mental health

assessment within 24 hours. Carmichael had no further contact with Salzman or

role in his care. Appellants argue on appeal that Carmichael should have given

Salzman a P4 rating and placed him on a California Welfare & Institutions Code §

5150 hold. However, in their Separate Statement of Disputed and Additional

Undisputed Facts in support of their Opposition to Summary Judgment (“Separate

Statement”), Appellants did not dispute that Carmichael acted appropriately in

1 The County assesses inmates using a “P rating system,” with ratings ranging from P0 to P4. Inmates with a P3 rating have several mental health issues and require safety checks every 15 minutes, must wear safety gowns, and have limited access to certain parts of jail property. P3 inmates in HOH are often placed in cells with another person to reduce isolation-related symptoms and the risk of suicide. A P4 designation is reserved for the most at-risk inmates who meet the requirements for a California Welfare & Institutions Code § 5150 hold, meaning that they are “gravely disabled” and a danger to themselves or others. Inmates with a P4 designation also generally refuse to take medication, exhibit self-injurious behaviors, are actively assaultive, have poor or no self-hygiene to the point where it poses a health risk, and cannot or will not engage in any form of communication or treatment.

4 evaluating Salzman. Moreover, the County’s expert, licensed clinical psychologist

Dr. Karen Siscoe, agreed in unrefuted testimony that Carmichael “appropriately

made Salzman a P3 and recommended that he transfer to [HOH].” Appellants now

argue that Carmichael should have “followed up aggressively” to ensure that

Salzman was placed in a single-detainee cell, but Appellants have provided no

evidence that Carmichael had the “dut[y], discretion, and means” to monitor any

subsequent mental health assessment or to change a subsequent psychiatrist’s

recommendation. See Leer, 844 F.2d at 633. Therefore, Carmichael did not fail to

take “reasonable available measures to abate” a risk of harm to Salzman. Gordon

v. Cnty of Orange, 888 F.3d 1118, 1125 (9th Cir. 2018) (citing Castro, 833 F.3d at

1071).

b. Dr. Shohreh Ghaemian, a psychiatrist who conducted the next evaluation

on June 25, 2020, concluded that Salzman did not meet the criteria for a P4

designation or a referral to Forensic In-Patient (“FIP”) care, a form of involuntary

inpatient psychiatric hospitalization. Although Appellants argue on appeal that Dr.

Ghaemian’s recommendation was “medically unacceptable,” in their Separate

Statement, Appellants did not dispute that Dr. Ghaemian acted appropriately.

Moreover, by the time Dr. Ghaemian evaluated him, Salzman was “no longer

hostile or aggressive,” but was “cooperative.” Nor was Salzman homicidal,

suicidal, or hallucinatory. Therefore, cohabitation was not only possible, but

5 preferable, according to Dr. Ghaemian’s clinical judgment, Dr. Siscoe’s

uncontroverted testimony, and HOH policy. Dr. Ghaemian’s clinical judgment

was accordingly not “so inadequate to the circumstances known to the medical

staff as to amount to deliberate indifference.” Russell v. Lumitap, 31 F.4th 729,

741 (9th Cir. 2022). Dr. Ghaemian had no further contact with Salzman.

c. On June 30, 2020, Taelyr Patton, a psychiatric social worker, interviewed

Salzman and Escobar through their cell door. Patton documented on their charts

that Salzman and Escobar were compliant with their medications and

recommended that they continue with their mental health treatment in HOH, where

they would be reevaluated within seven days. Appellants argue that Patton should

have separated Salzman and Escobar in light of their history of mental health

issues, their “unusual co-dependent tendencies,” and Carmichael’s earlier

recommendation of single housing for Salzman. But Patton observed that Salzman

was “positively engaging with [his] cellmate,” and she did not observe any

evidence that the cellmates were not getting along. Under these circumstances,

Patton did not ignore a “substantial risk” of serious harm to Salzman that “a

reasonable official in the circumstances would have appreciated.” Gordon, 888

F.3d at 1125.

d. Appellants contend that deputies Daniel Rose, Raul Castro, and Jose

Ayala, who were on duty and responded on the day of the attack, knew or should

6 have known that Salzman was at substantial risk of harm by Escobar. Deputy Rose

had not previously been assigned to the module housing Salzman and Escobar but

had been assigned to a neighboring module, from which he responded to the call

for assistance once the attack was discovered. Deputy Castro’s first day assigned

to Salzman and Escobar’s housing module was the day of the attack. Only Deputy

Ayala had worked on Salzman and Escobar’s housing unit in the days before the

attack.

An inmate housed in an adjacent cell, Rogelio Nava, testified that in the days

before the attack, he heard banging noises, and statements including “I’m a five-

star general” and “I’m trained to kill.” He also testified that he tried to inform the

deputies that he could not sleep or meditate because of the noise, but they ignored

him. However, the record is devoid of evidence that the individual deputy

defendants named were the ones that heard and ignored Nava’s statements, Leer,

844 F.2d at 633–34, or that they were otherwise aware of the noise and threats, see

Hyde v. City of Willcox, 23 F.4th 863, 873 (9th Cir. 2022).

Appellants also assert that Ayala, Castro, and Rose “made an intentional

decision to not monitor a live videostream” of Salzman’s cell. However, there is

no evidence that it was a part of the deputies’ duties to monitor a live feed of the

video, and it is undisputed that they performed the required safety checks every

fifteen minutes. See Leer, 844 F.2d at 633–34. The video footage itself shows no

7 evidence that the deputies, including Ayala who used the stairs adjacent to the cell

12 minutes into the attack, knew or should have known of the ongoing attack.

Moreover, Castro intervened in the attack only 33 seconds after Ayala was on the

stairs. Dr. Gary Vilke established that “[h]ad the deputies started chest

compressions a minute or two earlier, there would be no measurable difference in

the ultimate outcome.” Further, Dr. Kenji Inaba established that Salzman

experienced “a full cardiac arrest due to blunt force trauma,” which was not

survivable “once he went into cardiac arrest no matter what type of medical

treatment he obtained or the timing of any such treatment.” See Castro, 833 F.3d

at 1071. And Appellants have not provided any evidence of their own to create a

dispute of material fact as to whether intervening 33 seconds earlier would have

prevented Salzman’s death.2

2. Because Appellants fail to show that Ayala, Castro, or Rose violated

Salzman’s constitutional rights, the district court properly granted summary

judgment to their supervisor, Sergeant Carlton Skerrett, on Appellants’

supervisorial liability claim. See Jackson v. City of Bremerton, 268 F.3d 646, 653

(9th Cir. 2001).3

2 Appellants failed to argue in their opening brief that summary judgment was improperly granted to Erika Ubom or Benjamin Aranda and have thus forfeited that challenge. Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999). 3 Because Appellants fail to show that the defendants violated Salzman’s constitutional rights, we need not reach the issue of qualified immunity or

8 AFFIRMED.

Appellants’ state law claims. See Jackson, 268 F.3d at 653; 28 U.S.C. § 1367(c)(3). We also need not reach Appellants’ Monell claims, because Appellants do not challenge on appeal the district court’s conclusion that their Monell claims fail if no individual defendant violated Salzman’s constitutional rights. See Hernandez v. Garland, 47 F.4th 908, 916 (9th Cir. 2022) (explaining that issues not “specifically and distinctly” argued in an opening brief are forfeited). But cf. Horton by Horton v. City of Santa Maria, 915 F.3d 592, 604 (9th Cir. 2019) (explaining that, under our case law, municipal Monell liability may be possible “even in situations in which no individual officer is held liable for violating a plaintiff’s constitutional rights”).