FILED

NOT FOR PUBLICATION

DEC 22 2020

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAT THANH LUONG, Deceased, No. 19-16846 through his Co-Successors in Interest; AI QIONG ZHONG, Individually and as D.C. No. 3:17-cv-06675-EMC mother and next friend for; W.L., a minor,

Plaintiffs-Appellees, MEMORANDUM*

and

MAI CHAI,

Plaintiff,

v.

NAPA STATE HOSPITAL;

CALIFORNIA DEPARTMENT OF

STATE HOSPITALS; PAM AHLIN;

DOLLY MATTEUCCI; CINDY BLACK;

PATRICIA TYLER,

Defendants-Appellants.

DAT THANH LUONG, Deceased, No. 19-16875 through his Co-Successors in Interest; AI QIONG ZHONG, Individually and as D.C. No. 3:17-cv-06675-EMC mother and next friend for; W.L., a minor,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Plaintiffs-Appellants,

and

MAI CHAI,

Plaintiff,

v.

NAPA STATE HOSPITAL;

CALIFORNIA DEPARTMENT OF

STATE HOSPITALS; PAM AHLIN;

DOLLY MATTEUCCI; CINDY BLACK;

PATRICIA TYLER,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Edward M. Chen, District Judge, Presiding

Argued and Submitted November 17, 2020 San Francisco, California

Before: THOMAS, Chief Judge, and SCHROEDER and BERZON, Circuit Judges.

This 42 U.S.C. § 1983 case arises out of the tragic death of Dat Thanh

Luong at the hands of his Alameda County jail cell mate. Luong had been found

incompetent to stand trial and was on a waitlist for admission to Napa State

Hospital at the time of his death. His family’s claims against the County and its

2 officials have now been settled, and almost all of the claims against California state

entities and employees have been dismissed. The family’s only remaining claims

are against four supervisory-level Department of State Hospitals employees, who

bring this interlocutory appeal seeking review of the district court’s denial of

qualified immunity on one due process claim: that the hospital employees should

have notified interested parties about the availability of an informal psychiatric

acuity review process by which jail inmates with acute needs could bypass the

hospital waitlist and be admitted directly.

Qualified immunity protects government officials from civil liability for

damages unless plaintiffs can show that the officials violated a right that was

“clearly established” under federal law. Mitchell v. Forsyth, 472 U.S. 511, 526

(1985). Plaintiffs, emphasizing that Luong was ordered committed to the

hospital’s care, urge that a special duty attached as a result of that commitment. A

right is not clearly established, however, unless “existing precedent [has] placed

the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, 563

U.S. 731, 741 (2011). There is no precedent requiring hospital employees, as a

matter of federal law, to inform jail officials, defense counsel, or others of special

procedures available to inmates awaiting hospital admission. Moreover, the

Department of State Hospitals adopted emergency regulations publicizing and

3 formalizing the acuity review procedure in September 2016, approximately one

month prior to Luong’s death. Cal. Code Regs. tit. 9, § 4717. It is difficult to

justify the imposition of monetary damages against these hospital employees on

the theory that they were additionally required to give individualized notifications

to relevant actors in Luong’s case. At the very least, the hospital employees are

entitled to qualified immunity.

The closest authority in our circuit is Oregon Advocacy Center v. Mink, 322

F.3d 1101 (9th Cir. 2003), upon which Plaintiffs rely. Mink recognized the plight

of incarcerated defendants requiring psychiatric assistance, but it did not involve

acuity reviews or any comparable procedure for bypassing hospital admission

waitlists, nor did it involve any employee’s duty to provide any kind of notice to

relevant individuals. As an action for an injunction, Mink did not involve

individual liability at all, and the relief granted was premised in substantial part on

a Oregon state statute and a district court injunction based on that statute. Id. at

1115–16, 1122 n.13. Mink therefore did not establish any right under federal law

relevant here.

We lack jurisdiction to consider Plaintiffs’ cross-appeal, because it is not

from a final judgment and does not come within the exception recognized for

issues inextricably intertwined with an interlocutory appeal from a denial of

4 qualified immunity. See Horton by Horton v. City of Santa Maria, 915 F.3d 592,

603 (9th Cir. 2019).

The district court’s order denying qualified immunity is REVERSED and

the matter REMANDED with instructions to grant Defendants-Appellants’ motion

for summary judgment on qualified immunity grounds. Plaintiffs’ interlocutory

cross-appeal, no. 19-16875, is DISMISSED for lack of jurisdiction.

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