NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS SEP 2 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

BEN PORTER, Successor-in-Interest to No. 19-16343 Decedent HANEEFAH NURIDDIN, D.C. No. 4:16-cv-03771-CW Plaintiff-Appellant,

v. MEMORANDUM*

CITY AND COUNTY OF SAN

FRANCISCO, a municipal corporation; JAMES KAY TERRY, in his individual and official capacity as an employee of the CITY

AND COUNTY OF SAN FRANCISCO,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Claudia Wilken, District Judge, Presiding

Argued and Submitted August 12, 2020 San Francisco, California

Before: GRABER and BRESS, Circuit Judges, and DAWSON,** District Judge. Partial Concurrence and Partial Dissent by Judge DAWSON

Ben Porter, individually and as successor-in-interest to his daughter, decedent

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Robert T. Dawson, United States District Judge for the Western District of Arkansas, sitting by designation. Haneefah Nuriddin, brought several claims under 42 U.S.C. § 1983 against

defendants City and County of San Francisco and James Terry, a city-employed

mental health specialist. Nuriddin was involuntarily committed at a city-run mental

health rehabilitation center. Porter’s claims relate to Nuriddin’s tragic death after

she fled from Terry during a medical appointment to which Terry had accompanied

her. The district court entered summary judgment for defendants, and Porter now

appeals. We have jurisdiction under 28 U.S.C. § 1291. Reviewing the grant of

summary judgment de novo, see Jessop v. City of Fresno, 936 F.3d 937, 940 (9th

Cir. 2019), cert. denied, No. 19-1021, 2020 WL 2515813 (U.S. May 18, 2020), reh’g

denied, No. 19-1021, 2020 WL 4429721 (U.S. Aug. 3, 2020), we affirm.

1. Porter first argues that Terry violated Nuriddin’s Fourteenth

Amendment rights by failing to exercise proper supervision over her, which Porter

claims led to Nuriddin’s elopement and death. In determining whether a government

official is liable under § 1983 or entitled to qualified immunity, we ask (1) whether

he violated another’s constitutional rights and, if so, (2) whether the constitutional

right was “clearly established” at the time of the violation. Pearson v. Callahan,

555 U.S. 223, 232 (2009). Construing the facts in the light most favorable to Porter,

Porter fails to show that either prong of this test is met.

a. To show a constitutional violation under these circumstances, Porter

must demonstrate that Terry acted with “objective deliberate indifference.” Gordon

2 v. County of Orange, 888 F.3d 1118, 1125 (9th Cir. 2018). Under this standard,

among the elements that Porter must show are that Terry put Nuriddin “at substantial

risk of suffering serious harm” and “did not take reasonable available measures to

abate that risk, even though a reasonable official in the circumstances would have

appreciated the high degree of risk involved—making the consequences of the

defendant’s conduct obvious.” Id.

Porter argues that the deliberate indifference standard is met because Terry

failed to appreciate that Nuriddin was a flight risk and left her unsupervised while

he made a phone call; followed after her once she disappeared rather than

immediately reporting her missing; and failed to carry a cell phone when taking

Nuriddin to the appointment. While some of Terry’s actions were perhaps negligent,

his actions did not amount to deliberate indifference, or gross negligence. The

undisputed facts show that Nuriddin was improving in her treatment, about to be

released, and was not a known flight risk. Terry also pursued Nuriddin and then

reported her missing. Under these circumstances, Terry was not deliberately

indifferent. See Castro v. County of Los Angeles, 833 F.3d 1060, 1071 (9th Cir.

2016) (en banc) (explaining that deliberate indifference requires “more than

negligence”).

We therefore respectfully disagree with our fine dissenting colleague on this

point. The dissent does not identify any dispute of fact that is material on the

3 question of deliberate indifference. Fed. R. Civ. P. 56(a). In addition, the relevant

undisputed facts are drawn not solely from Terry’s testimony, but from other record

evidence indicating that Nuriddin was not an identified flight risk and that AWOL

procedures were initiated shortly after 2:00pm that day.

b. Even if Terry had violated Nuriddin’s constitutional rights, he would

be entitled to qualified immunity because his actions did not violate clearly

established law. The primary case that Porter cites is our en banc decision in Castro.

833 F.3d at 1060. That case, however, presented much different circumstances

involving a due process right to be “free from violence from other inmates.” Id. at

1067. Porter does not identify cases involving more analogous circumstances that

would clearly establish that Terry’s actions violated the Constitution. Terry is

therefore entitled to qualified immunity. Pearson, 555 U.S. at 232.

2. Porter also argues that the City and County of San Francisco is liable

under § 1983 for failing adequately to train its employees on elopement procedures,

citing Monell v. Department of Social Services of City of New York, 436 U.S. 658

(1978). To establish municipal liability under Monell, Porter must show: “(1) that a

county employee violated the plaintiff’s constitutional rights; (2) that the county has

customs or policies that amount to deliberate indifference; and (3) that these customs

or policies were the moving force behind the employee’s violation of constitutional

rights.” Long v. County of Los Angeles, 442 F.3d 1178, 1186 (9th Cir. 2006).

4 Porter’s Monell claims fail under the first element because, as we have held

above, there was no violation of Nuriddin’s constitutional rights. In addition, we

agree with the district court that, of all the purported training deficiencies that Porter

alleges, the only one that is potentially related to Nuriddin’s elopement is the City’s

failure to require Terry to carry a cell phone (a policy it has since changed).

Assuming this was a deliberately indifferent policy that violated Nuriddin’s

constitutional rights, Porter’s Monell claim still fails because he has not shown that

it was the “moving force” that caused Nuriddin’s death. Id.

AFFIRMED.

5

FILED

Ben Porter v. City & County of San Francisco, No. 19-16343 SEP 2 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

Dawson, District Judge, concurring in part and dissenting in part.

I concur in the majority’s decision to the extent it concludes there are no

triable issues of fact on Porter’s Monell claims. Insofar as the majority affirms

summary judgment for Appellee James Terry, I dissent.

During the events at issue, Haneefah Nuriddin (Appellant Ben Porter’s

daughter) was a patient at the Mental Health Rehabilitation Center (MHRC), a

locked facility operated by the San Francisco Department of Public Health.

Nuriddin was involuntarily committed by court order so that her competency could

be restored to stand trial for criminal charges. 1 Nuriddin’s medical records

indicate that she had prior diagnoses of schizophrenia, multiple episodes, and

partial remission. Furthermore, her criminal history revealed a pattern of antisocial

tendencies and unpredictable behavior.2 While Nuriddin was a patient at MHRC,

she continued to experience grandiose delusions and disorganized thinking. Her

medical records also establish she was diagnosed with anosognosia, which

indicates that she lacked the ability to recognize her mental health condition.

Medical records indicate that Nuriddin showed signs of progress during her

time at MHRC, e.g., medication compliance, improved insight as to treatment

1 The charges related to battery and infliction of bodily injury upon an elder. 2 Nuriddin’s prior criminal history included charges of assault with a deadly weapon, assault, battery, petty theft, resisting arrest, and multiples attempts of battery against a police officer. needs, active participation in therapy sessions. By April 2015, MHRC personnel

were in the process of finding an alternative living arrangement for Nuriddin,

preferably one in an unlocked facility. Nuriddin received court approval to attend

medical appointments outside the MHRC facility with staff supervision.

Unfortunately, Nuriddin disappeared when James Terry accompanied her to a

doctor’s appointment on April 30, 2015.

According to Terry’s deposition, he escorted Nuriddin without carrying a

cell phone. Terry testified that he did not “check to see” if he was carrying his

phone when they left MHRC. Terry maintained that when they were in the waiting

room at the doctor’s office, he withdrew his attention from Nuriddin for a matter of

seconds to answer a phone call at the receptionist’s desk. Terry states that

Nuriddin escaped during this time. Terry failed to immediately provide

notification of Nuriddin’s disappearance to MHRC or law enforcement. Instead,

he maintains that he searched for Nuriddin on foot and that he eventually spotted

her at a distance outdoors. Terry implored Nuriddin not to flee any further, but she

failed to heed his suggestion. Subsequently, Terry pursued Nuriddin for a block-

and-a half before he broke his chase and returned to the MHRC facility. Terry

then provided in-person notification of Nuriddin’s disappearance to a co-worker,

and the co-worker responded by contacting law enforcement. Less than seventeen

hours after Nuriddin’s disappearance, her deceased body was found at a

2 construction site, nearly three miles from where she disappeared. The cause of her

death remains unknown.

At summary judgment, the district court must view the evidence in a light

most favorable to Porter, the non-moving party. Barlow v. Ground, 943 F.2d 1132,

1135 (9th Cir.1991). A court must not resolve credibility issues at summary

judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51

(2000) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). Once

the moving party establishes there are no genuine issues of material fact, the

nonmoving party must come forward with specific facts establishing a genuine

issue for trial. C.A.R. Transp. Brokerage Co. v. Darden Restaurants, Inc., 213

F.3d 474, 480 (9th Cir. 2000). But, the type of proof used by the moving party

determines whether the burden shifts.

Thus if the proof in support of the motion is largely documentary and has a high degree of credibility the opponent must produce convincing proof attacking the documents in order to sustain his burden.... If the moving party's proof is less convincing, as in cases where he relies on his own testimony or has exclusive knowledge of the transaction, the burden of providing evidence may never shift to the opponent. 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice

and Procedure § 2727.2 (4th ed. 2020) (citing John A. Bauman, A Rationale for

Summary Judgment, 33 IND. L.J. 467, 483-84 (1958)). If a moving party fails to

carry its initial burden of production on a motion for summary judgment, “the

3 nonmoving party has no obligation to produce anything, even if the nonmoving

party would have the ultimate burden of persuasion at trial.” Nissan Fire &

Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099, 1102–03 (9th Cir. 2000).

In this case, Terry has failed to satisfy his initial burden on summary

judgment to show there was not a genuine dispute of material fact. When

considering Nuriddin’s mental health condition, she was particularly vulnerable.

Other than Terry’s deposition, there is no evidence explaining Nuriddin’s

disappearance. The degree to which Terry was vigilant, as well as the time lapse in

reporting her disappearance, is crucial to Terry’s liability. The time lapse is not

established by the record, as there is no indication of when, or even if, Terry and

Nuriddin arrived at the doctor’s office. Because Terry’s version of events is

provided by his deposition testimony, cross-examination, not summary judgment,

is the best means for testing this evidence. The mere fact that Terry has produced

his own testimony does not mean that he carried his initial burden of proving that

no genuine dispute of material fact existed. And, in a case such as this, courts

should not simply accept what may be a self-serving account.

As for the issue of qualified immunity, officers and officials are entitled to

immunity under § 1983 when (1) they violated a constitutional right, and (2) that

right was clearly established at the time of the violation. Dist. of Columbia v.

Wesby, 138 S. Ct. 577, 589 (2018). A right is clearly established if the “contours

4 of the right [are] sufficiently clear that a reasonable official would understand that

what he is doing violates that right.” Saucier v. Katz, 533 U.S. 194, 201 (2001)

(citing Anderson v. Creighton, 483 U.S. 635, 640 (1987)). An invocation of

qualified immunity is defeated if an officer or official knew or should have known

that his actions, taken within the sphere of official responsibility, would violate the

constitutional rights of the plaintiff. Harlow v. Fitzgerald, 457 U.S. 800, 815

(1982).

Qualified immunity balances two important interests: “the need to hold

public officials accountable when they exercise power irresponsibility and the need

to shield officials from harassment, distraction, and liability when they perform

their duties reasonably.” Martinez v. City of Clovis, 943 F.3d 1260, 1275 (9th Cir.

2019). Qualified immunity serves the function of protecting government officers

“in the performance of their public, governmental functions.” Bracken v. Okura,

869 F.3d 771, 774 (9th Cir. 2017). “It does so not to benefit the agents of

government, but to safeguard government itself, and thereby protect the public at

large.” Id. (internal quotations and citation omitted). Even so, this does not mean

that courts may usurp the jury’s province to resolve factual disputes. See Tortu v.

Las Vegas Metro. Police Dep’t, 556 F.3d 1075, 1085 (9th Cir. 2009) (stating that

whether a constitutional violation occurred constitutes a question of fact, while the

examination of whether a right was clearly established is a question of law).

5 Indeed, it is sometimes the case that qualified immunity cannot be determined as a

legal matter on summary judgment because material disputes of fact remain.

Arnott v. Mataya, 995 F.2d 121, 124 (8th Cir. 1993) (“If the arrestee challenges the

officer's description of the facts and presents a factual account where a reasonable

officer would not be justified in making an arrest, then a material dispute of fact

exists. Where there is a genuine issue of material fact surrounding the question of

plaintiff's conduct, we cannot determine, as a matter of law, what predicate facts

exist to decide whether or not the officer's conduct clearly violated established

law.”).

This case presents such a circumstance. How and what took place before

Nuriddin’s disappearance is the essence of whether Terry was liable. Based on the

record, Terry was the only witness to explain what happened before Nuriddin

disappeared. As previously mentioned, cross-examination, as opposed to summary

judgment, is the best means for testing Terry’s credibility. If this case were to

proceed to trial, the protections of qualified immunity would not be entirely lost to

Terry. Rather, qualified immunity would be “transformed from a doctrine

providing immunity from suit to one providing a defense at trial.” Morales v. Fry,

873 F.3d 817, 823 (9th Cir. 2017). During a trial, the jury would resolve issues of

fact, while the judge would retain the authority to decide “whether the right [at

issue] was clearly established once the factual issues [were] resolved.” Id.

6 Accordingly, I respectfully dissent insofar as the majority affirms summary

judgment in Terry’s favor.

7