NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 13 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHASSIDY NESMITH, individually and as No. 19-55457 Guardian ad Litem on behalf of Skyler Kristopher Scott NeSmith, and as Successor D.C. No. in Interest to the Estate of Kristopher Scott 3:15-cv-00629-JLS-AGS NeSmith; SKYLER KRISTOPHER SCOT

NESMITH,

MEMORANDUM*

Plaintiffs-Appellees,

v.

CHRISTOPHER OLSEN; PATRICK

NEWLANDER,

Defendants-Appellants,

and

DOES, 1-100 inclusive; et al.,

Defendants.

Appeal from the United States District Court for the Southern District of California Janis L. Sammartino, District Judge, Presiding

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Submitted March 31, 2020** Pasadena, California

Before: MURGUIA and MILLER, Circuit Judges, and STEEH,*** District Judge.

San Diego County Deputy Sheriffs Patrick Newlander and Christopher

Olsen (the Deputies) appeal from the district court’s denial of their summary

judgment motion asserting qualified immunity from Chassidy NeSmith’s action

under 42 U.S.C. § 1983 on behalf of herself, the estate of Kristopher NeSmith

(NeSmith), and NeSmith’s daughter. We have jurisdiction under 28 U.S.C. § 1291.

See Mitchell v. Forsyth, 472 U.S. 511, 524–25 (1985). We dismiss the appeal in

part, and otherwise affirm.

1. To defeat qualified immunity, NeSmith must establish that (1) the

Deputies “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) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982)). We have jurisdiction over a district court’s denial of summary judgment

based on qualified immunity “only to the extent ‘the issue appealed concern[s], not

which facts the parties might be able to prove, but, rather, whether or not certain

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable George Caram Steeh III, United States District Judge for the Eastern District of Michigan, sitting by designation.

2 given facts showed a violation of clearly established law.’” Foster v. City of Indio,

908 F.3d 1204, 1210 (9th Cir. 2018) (per curiam) (quoting Johnson v. Jones, 515

U.S. 304, 311 (1995)). “In an interlocutory appeal challenging the denial of

qualified immunity, we must construe the facts in the light most favorable to the

plaintiff.” Orn v. City of Tacoma, 949 F.3d 1167, 1171 (9th Cir. 2020).

We conclude that we lack jurisdiction over the Deputies’ challenge to

whether NeSmith demonstrated a constitutional violation. That inquiry turns on

whether the Deputies acted with “reckless disregard” of an imminent risk that

NeSmith would commit suicide. See Castro v. County of Los Angeles, 833 F.3d

1060, 1071 (9th Cir. 2016) (en banc). In arguing that NeSmith did not establish a

constitutional violation, the Deputies fail to present the facts in the light most

favorable to NeSmith, including by failing to address testimony from another

inmate that a rope hanging about “three or four inches” from NeSmith’s light was

visible on the night before his suicide, when the Deputies conducted hourly

security checks. To the extent the Deputies challenge the district court’s

determination that disputed facts precluded summary judgment, we lack appellate

jurisdiction to address those purely factual disputes. See Eng v. Cooley, 552 F.3d

1062, 1067 (9th Cir. 2009). And to the extent the Deputies challenge the district

court’s holding that the facts, taken in the light most favorable to NeSmith,

establish that the Deputies violated the Constitution, they waived that argument by

3 failing to advance an argument that takes the facts in the light most favorable to

NeSmith. See George v. Morris, 736 F.3d 829, 837 (9th Cir. 2013).

2. Although we conclude that the Deputies have made enough of a

“distinct legal claim” to avoid waiving their challenge to whether NeSmith’s rights

were clearly established, see id., we nevertheless hold that they were. “A clearly

established right is one that is ‘sufficiently clear that every reasonable official

would have understood that what he is doing violates that right.’” Mullenix v.

Luna, 136 S. Ct. 305, 308 (2015) (per curiam) (quoting Reichle v. Howards, 566

U.S. 658, 664 (2012)).

Before the events at issue in this case, we addressed deliberate indifference

to a known risk of suicide in Conn v. City of Reno, 591 F.3d 1081 (9th Cir. 2010),

vacated, 563 U.S. 915 (2011), reinstated in relevant part, 658 F.3d 897 (9th Cir.

2011), and in Clouthier v. County of Contra Costa, 591 F.3d 1232 (9th Cir. 2010),

overruled on other grounds by Castro, 833 F.3d 1060. In Conn, where a pretrial

detainee threatened and attempted to commit suicide by hanging while en route to

detention, we held that a jury could reasonably find that arresting officers violated

the Constitution by failing to notify jail officials of the detainee’s suicide risk. 591

F.3d at 1092, 1102. In Clouthier, where a mental health specialist received explicit

warnings of the inmate’s prior suicide attempts yet removed several suicide

precautions, we held that a reasonable jury could find this conduct, too, violated

4 the Constitution. 591 F.3d at 1245.

The Deputies emphasize that we identified no violation of clearly

established law in Horton ex rel. Horton v. City of Santa Maria, 915 F.3d 592 (9th

Cir. 2019), which also addressed a detainee’s suicide attempt. But in that case, we

distinguished Conn and Clouthier in large part because Horton had made no clear

threat of suicide or suicide attempt. Id. at 601.

Here, viewing the facts in the light most favorable to NeSmith, the Deputies

observed a rope hanging from NeSmith’s light on the night before his suicide.

Under those circumstances, the rope presented a clear warning that NeSmith

presented an imminent suicide risk. See Conn, 591 F.3d at 1092. “Every

‘reasonable official would [have understood]’” that failing to recognize that risk

violated NeSmith’s rights. al-Kidd, 563 U.S. at 741 (quoting Anderson v.

Creighton, 483 U.S. 635, 640 (1987)) (alteration in original). Indeed, the Deputies

declared that had they seen the rope—and viewing the evidence in the light most

favorable to NeSmith, we must conclude that they did—they would have removed

it and sought medical attention.

3. We reject the Deputies’ remaining unwaived legal challenges. The

district court did not collectively analyze liability as to the Deputies or hold that a

showing amounting to less than a preponderance of the evidence could create

liability.

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AFFIRMED IN PART, DISMISSED IN PART.

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