FILED

NOT FOR PUBLICATION

JUN 06 2016

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MANAGED PROTECTIVE SERVICES, No. 14-17587 INC., as Limited Conservator for Christopher Michael Simpson, D.C. No. 2:13-cv-01354-DLR

Plaintiff - Appellant,

MEMORANDUM*

v.

CITY OF MESA, a municipal corporation and political subdivision of the State of Arizona; et al.,

Defendants - Appellees.

Appeal from the United States District Court for the District of Arizona Douglas L. Rayes, District Judge, Presiding

Argued and Submitted May 11, 2016 San Francisco, California

Before: WARDLAW, PAEZ, and BEA, Circuit Judges.

Managed Protective Services, a limited conservator of Christopher Simpson,

appeals the district court’s grant of summary judgment on Simpson’s excessive

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. force and deliberate indifference claims. We have jurisdiction pursuant to 28

U.S.C. § 1291, and we affirm in part, reverse in part, and remand.

1. The district court erred in granting summary judgment to the defendants

on Simpson’s excessive force claim on the basis of qualified immunity. Several

important facts are disputed, including how long the officers left Simpson on the

pavement and how many officers held him down. Those disputes extend to

Simpson’s actions and as to whether any force or force to the extent of causing

second-degree burns was reasonable under the circumstances. See Graham v.

Connor, 490 U.S. 386, 396 (1989). These factual disputes must be resolved by a

jury before a conclusion can be drawn as to the reasonableness of the force under

Graham. See Espinosa v. City & County of San Francisco, 598 F.3d 528, 532 (9th

Cir. 2010).

Moreover, the district court erred in examining solely “hot pavement” cases

to determine whether the law was clearly established. That courts have resolved

prior “hot pavement” cases differently is not dispositive; law can be “clearly

established” even if “there was no case on all fours prohibiting that particular

manifestation of unconstitutional conduct.” Deorle v. Rutherford, 272 F.3d 1272,

1286 (9th Cir. 2001). Among other relevant principles, it was clearly established

that the Fourth Amendment prohibits the continued use of force against an arrestee

2 who is restrained and no longer resisting, see, e.g., LaLonde v. County of Riverside,

204 F.3d 947, 960–61 (9th Cir. 2000), and that ignoring an arrestee’s complaints of

pain violates the Fourth Amendment, see, e.g., Palmer v. Sanderson, 9 F.3d 1433,

1436 (9th Cir. 1993).

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

Simpson’s deliberate indifference claim. An officer is “deliberately indifferent” if

he “knows of and disregards an excessive risk to [detainee] health and safety.”

Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014) (citation omitted). Here,

Simpson did not provide sufficient evidence that the officers had actual knowledge

of his burns before they arrived at the jail and transported him to the hospital, or

that they were aware of his mental health condition.

Each party shall bear its own costs.

AFFIRMED IN PART; REVERSED IN PART; and REMANDED.

3

FILED

Managed Protective Services, Inc. v. City of Mesa, et al., No. 14-17587

JUN 06 2016

BEA, Circuit Judge, concurring in part, dissenting in part: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I respectfully dissent from the majority’s decision to reverse the district

court’s grant of qualified immunity as to the excessive force claim. The district

court did not err when it canvassed other hot surface cases to determine whether

the officers’ conduct here amounted to a clearly established violation of Simpson’s

constitutional right to be free from unreasonable seizure. In assessing qualified

immunity, “[i]t is important to emphasize that this inquiry ‘must be undertaken in

light of the specific context of the case, not as a broad general proposition.’”

Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (quoting Saucier v. Katz, 533 U.S.

194, 201 (2001)). Broad general propositions can establish a “clear” violation “in

an obvious case.” Id. However, as the district court noted, this is not such a case.

Federal courts have reached different results in cases involving detainees and hot

surfaces.1 This body of case law “undoubtedly show[s] that this area is one in

1 Compare Price v. County of San Diego, 990 F. Supp. 1230, 1235, 1241 (S.D. Cal. 1998) (no clearly established constitutional violation where officers left a detainee on hot pavement for several minutes), and Rubio v. Lopez, 445 F. App’x 170, 172-74 (11th Cir. 2011) (same), with Howard v. Kansas City Police Dep’t, 570 F.3d 984, 987-91 (8th Cir. 2009) (clearly established violation where police officers forced a detainee to remain on hot asphalt for four to six minutes), and Corder v. Denver, 2000 WL 1234846 (10th Cir. 2000) (unpublished) (same result, where officers pinned down a detainee on a hot manhole cover and might have smelled burning flesh). which the result depends very much on the facts of each case.” Id. at 201. “None of

them squarely governs the case here; they do suggest that [the officers’] actions fell

in the ‘hazy border between excessive and acceptable force.’” Id. (quoting Saucier,

533 U.S. at 206)). Accordingly, I would affirm the district court’s holding that

hobbling Simpson on hot pavement to overcome his physical resistance to entering

the squad car did not amount to a clearly established violation of his constitutional

rights.

I agree with my colleagues that the district court did not err in granting

summary judgment on Simpson’s deliberate indifference claim.

2