NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS OCT 17 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETER WOODS NYARECHA, No. 23-55773 individually; ESTATE OF LEWIS NYARECHA, by and through Peter Woods, D.C. No. successor in interest, 2:20-cv-04474-WLH-MAA

Plaintiffs-Appellants,

MEMORANDUM*

JUDITH MIREMBE,

Intervenor-Plaintiff- Appellant,

and

LEON NYARECHA,

Intervenor-Plaintiff,

v.

COUNTY OF LOS ANGELES; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Wesley L. Hsu, District Judge, Presiding

Argued and Submitted September 13, 2024 Pasadena, California

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: FRIEDLAND and DESAI, Circuit Judges, and SCHREIER,** District Judge.

Appellants, Peter Woods Nyarecha, on behalf of both himself and his son

Lewis Nyarecha’s estate, and Judith Mirembe, appeal the district court’s grant of

summary judgment on their Monell 42 U.S.C. § 1983 claim in favor of Los

Angeles County and the Los Angeles County Sherriff’s Department (LASD).1 We

have jurisdiction under 28 U.S.C. § 1291 and we reverse and remand.

In March 2018, Lewis Nyarecha (Nyarecha) was arrested and placed in the

custody of the LASD at the Twin Towers Correctional Facility in Los Angeles.

Because of a medical diagnosis, Nyarecha was housed in moderate observation

housing (MOH).

On June 6, 2018, Nyarecha was found dead in his cell by an inmate trustee at

11:17 am. Although LASD policy requires cells designated as MOH to be subject

to safety checks every 30 minutes, in the thirteen hours prior to Nyarecha being

found, the officers completing the checks of Nyarecha’s cell block did not assess

Nyarecha’s condition.

** The Honorable Karen E. Schreier, United States District Judge for the District of South Dakota, sitting by designation. 1 Appellants do not appeal the district court’s grant of summary judgment in favor of the individual defendants.

2 We review a district court’s grant of summary judgment de novo, viewing

all evidence in the light most favorable to the nonmoving party and drawing all

reasonable inferences in that party’s favor. Herrera v. Los Angeles Unified Sch.

Dist., 18 F.4th 1156, 1158 (9th Cir. 2021). To impose Monell liability under 42

U.S.C. § 1983 on a municipality or governmental entity, plaintiffs “must prove:

[that] (1) [plaintiff] had a constitutional right of which he was deprived; (2) the

municipality had a policy [or custom]; (3) the policy [or custom] amounts to

deliberate indifference to his constitutional right; and (4) the policy [or custom] is

the moving force behind the constitutional violation.”2 Gordon v. County of

Orange, 6 F.4th 961, 973 (9th Cir. 2021) (citation omitted).

Appellants brought their action under the “custom or policy” theory of

liability. A governmental policy or custom is “a deliberate choice to follow a

course of action . . . by the official or officials responsible for establishing final

policy with respect to the subject matter in question.” Pembaur v. City of

Cincinnati, 475 U.S. 469, 483 (1986). Under Monell, one way a plaintiff may

establish a policy or custom is by showing that the alleged constitutional violation

2 It is undisputed that Nyarecha had a constitutional right to adequate safety checks. See Gordon v. County of Orange, 6 F.4th 961, 973 (9th Cir. 2021) (“We [] hold that pre-trial detainees do have a [constitutional] right to direct-view safety checks sufficient to determine whether their presentation indicates the need for medical treatment.”).

3 was done in accordance with the governmental body’s “longstanding practice or

custom.” Gordon, 6 F.4th at 973 (citation omitted). Generally, “[p]roof of a single

incident of unconstitutional activity is not sufficient.” City of Oklahoma City v.

Tuttle, 471 U.S. 808, 823–24 (1985) (plurality opinion). A plaintiff’s claim cannot

be based on “isolated or sporadic incidents; [liability] must be founded upon

practices of sufficient duration, frequency and consistency that the conduct has

become a traditional method of carrying out policy.” Sabra v. Maricopa Cnty.

Cmty. Coll. Dist., 44 F.4th 867, 884 (9th Cir. 2022) (alteration in original) (quoting

Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996)).

Appellants argue that the twenty-six checks that occurred before Nyarecha

was found dead are sufficient to show that LASD had a custom or policy of not

actually assessing the condition of detainees during checks. The district court

rejected this argument and characterized the thirteen-hour period as a single

incident, holding that it was not of sufficient duration to evidence a custom or

policy under Monell. We disagree. The fact that the constitutionally inadequate

checks occurred in quick succession over a relatively short period of time does not

bar Monell liability. See, e.g., Menotti v. City of Seattle, 409 F.3d 1113, 1147–49

(9th Cir. 2005) (holding that a series of constitutional violations committed by

multiple officers during the course of a single day was sufficient to create a

4 genuine issue of fact as to whether the city had an unconstitutional custom or

policy).

Here, the evidence in the record, viewed in the light most favorable to

Appellants, supports an inference that the safety checks that occurred in the hours

preceding Nyarecha’s death represent a practice or custom capable of satisfying the

standard for Monell liability. Unlike in Gordon, where the plaintiff specifically

challenged two deficient safety checks carried out by the same officer, and where

at most three other deficient safety checks had occurred, 6 F.4th at 966, the record

here shows that twenty-six different safety checks each of a seven-cell area,

performed by at least six officers,3 working two different shifts, were all

constitutionally deficient. During those checks, none of the officers stopped

outside of Nyarecha’s cell or the cells of the other detained inmates. Instead, the

officers consistently completed their checks of Nyarecha’s seven-cell area in under

twenty seconds, without breaking stride or pausing to look into the cells. And at

no point did any officer attempt to elicit a response from Nyarecha or any other

inmate. Moreover, the officers each completed their checks independently, and

completed them in the exact same deficient manner, indicating that the behavior

3 It is unclear exactly how many officers are shown in the video, but at least six officers (Nieves, Blandon, Snell, Cruz, Saenz, and Zhu) completed checks of Nyarecha’s cell.

5 exhibited during the twenty-six checks is indeed the norm. It is highly unlikely

such consistency would have been seen if this were not the de facto policy.

Additionally, Sergeant Gary Kellum, the safety check sergeant charged with

supervising officers who conduct safety checks, asserted that, after reviewing

video footage of the checks that occurred on the morning of Nyarecha’s death, he

believed the checks were compliant with LASD policy. Kellum’s statement

further supports the inference that safety checks in which officers do not appear to

stop at an inmate’s door for more than a few seconds and do not appear to look

through the door to discern the inmate’s condition are consistent with LASD’s

policy.

Thus, we reverse and remand to the district court for consideration

consistent with this decision.

REVERSED AND REMANDED

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