1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 REGINALD SMITH, Case No. 20-cv-08534-JST

8 Plaintiff,

ORDER GRANTING IN PART AND

9 v. DENYING IN PART MOTIONS FOR

SUMMARY JUDGMENT

10 OFFICE OF THE ALAMEDA COUNTY PUBLIC DEFENDER, et al., Re: ECF Nos. 87, 118 11 Defendants.

12 13 Before the Court are motions for summary judgment filed by Plaintiff Reginald Smith, 14 ECF No. 87, and Defendants Office of the Alameda County Public Defender (“ACPD”), Diane 15 Bellas, Brendan Woods, Margo George, County of Alameda, and County of Alameda Board of 16 Supervisors, ECF No. 118. The Court will deny Smith’s motion for summary judgment, and grant 17 in part and deny in part Defendants’ motion for summary judgment. 18 I. BACKGROUND 19 Smith alleges that he was detained at Coalinga State Hospital for 12 years without access 20 to a jury trial under California’s Sexually Violent Predator Act (“SVPA) in violation of his 21 Fourteenth Amendment right to due process. 22 In 2008, the Alameda County District Attorney filed a petition for civil commitment under 23 the SVPA. Smith was represented by Mike McCormick, an ACPD public defender, from 2008 to 24 2009. Smith was then represented by several attorneys from the Alameda County Bar 25 Association’s Court Appointed Attorneys Program (“CAAP”), with which the County contracted 26 to take over representation of ACPD clients when conflicts arose: Deborah Levy, from 2009 to 27 2017; Stephen Avilla, from 2017 to 2018; and David Bryden, from 2018 to 2019. 1 (Vasquez), 27 Cal. App. 5th 36 (2018). The Vasquez court had held that a 17-year pre-trial delay 2 violated an accused SVP offender’s right to due process and ordered his release. Id. On 3 December 3, 2019, the Alameda County Superior Court granted Smith’s Vasquez motion and 4 ordered his release. ECF No. 87-1 at 22–71. 5 The parties have now filed cross-motions for summary judgment. ECF Nos. 87, 118. 6 Smith argues he is entitled to judgment as a matter of law on his claims that his due process right 7 to a speedy SVPA trial was violated, that the County failed to adequately supervise its public 8 defense system, and that this failure was the moving force behind the constitutional violation. 9 ECF No. 87. Defendants argue that the evidence fails to support the existence of a constitutional 10 violation or municipal liability and that Bellas and Woods are entitled to qualified immunity. ECF 11 No. 118. 12 II. JURISDICTION 13 The Court has jurisdiction under 28 U.S.C. § 1331. 14 III. LEGAL STANDARD 15 Granting summary judgment is proper when a “movant shows that there is no genuine 16 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 17 Civ. P. 56(a). “A fact is ‘material’ only if it might affect the outcome of the case, and a dispute is 18 ‘genuine’ only if a reasonable trier of fact could resolve the issue in the non-movant’s 19 favor.” Fresno Motors, LLC v. Mercedes Benz USA, LLC, 771 F.3d 1119, 1125 (9th Cir. 20 2014). The court must consider all evidence in the light most favorable to the non-moving 21 party. Isbell v. City of San Diego, 258 F.3d 1108, 1112 (9th Cir. 2001). “[W]hen parties submit 22 cross-motions for summary judgment, ‘[e]ach motion must be considered on its own 23 merits.’” Fair Hous. Council of Riverside Cnty., Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th 24 Cir. 2001). 25 Where the party moving for summary judgment would bear the burden of proof at trial, 26 that party “has the initial burden of establishing the absence of a genuine issue of fact on each 27 issue material to its case.” C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 1 proof at trial, that party “must either produce evidence negating an essential element of the 2 nonmoving party’s claim or defense or show that the nonmoving party does not have enough 3 evidence of an essential element to carry its ultimate burden of persuasion at trial.” Nissan Fire & 4 Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). If the moving party satisfies 5 its initial burden of production, the nonmoving party must produce admissible evidence to show 6 that a genuine issue of material fact exists. Id. at 1102–03. If the nonmoving party fails to make 7 this showing, the moving party is entitled to summary judgment. Celotex Corp. v. Catrett, 477 8 U.S. 317, 322–23 (1986). “Reasonable doubts as to the existence of material factual issue[s] are 9 resolved against the moving part[y] and inferences are drawn in the light most favorable to the 10 non-moving party.” Barnes v. Sea Hawaii Rafting, LLC, 889 F.3d 517, 548 (9th Cir. 2018) 11 (quoting Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000)). 12 IV. DISCUSSION 13 A. Request for Judicial Notice 14 Defendants request the Court take judicial notice of clerk’s minutes, a court opinion, and 15 minute orders from nine state court cases involving alleged SVPs. ECF No. 119. Because the 16 Court may take judicial notice of documents on file in state courts, Harris v. County of Orange, 17 682 F.3d 1126, 1132 (9th Cir. 2012), the Court grants Defendants’ request for judicial notice. 18 B. Deprivation of Constitutional Right 19 Smith’s Section 1983 claims against all Defendants require a predicate deprivation of a 20 constitutional right. Smith argues that the twelve-year delay in his commitment proceeding 21 constitutes a violation of his right to due process. 22 No binding precedent establishes the existence of a due process right to a speedy civil 23 commitment trial. However, many courts have considered speedy trial claims raised in the context 24 of SVPA proceedings under the balancing test articulated by the Supreme Court in Barker v. 25 Wingo, 407 U.S. 514, 515 (1972). See, e.g., Yahn v. King, No. C-13-0855 EMC (pr), 2016 WL 26 69899, at *6 (N.D. Cal. Jan. 6, 2016); Vasquez, 27 Cal. App. 5th at 61; People v. Litmon, 162 Cal. 27 App. 4th 383, 398–406 (2008); Coleman v Mayberg, No. C 01-3428 SBA(PR), 2005 WL 1 the Barker factors are appropriately applied to SVPA proceedings, which present similar due 2 process concerns. 3 To determine whether a pre-trial delay violates the accused’s due process right under 4 Barker, courts must assess four factors: “[l]ength of delay, the reason for the delay, the 5 defendant’s assertion of his right, and prejudice to the defendant.” 407 U.S. at 530. None of these 6 factors is “either a necessary or sufficient condition to the finding of a deprivation”; “they are 7 related factors and must be considered together with such other circumstances as may be 8 relevant.” Id. at 533. In applying the Barker test, courts begin with the first factor; only if the 9 delay is ‘presumptively prejudicial’ need they consider the remaining factors. Id. at 530. A pre- 10 trial delay of is generally presumptively prejudicial as it approaches one year. Doggett v. United 11 States, 505 U.S. 647, 652 n.1 (1992). 12 Where a delay is presumptively prejudicial, courts consider whether each factor weighs in 13 favor of or against the plaintiff’s speedy trial right. In general, “delay caused by the defense 14 weighs against the defendant.” Vermont v. Brillon, 556 U.S. 81, 90 (2009). “[D]elays caused by 15 defense counsel are properly attributed to the defendant, even where counsel is assigned.” Id. at 16 94. “Delay resulting from a systemic ‘breakdown in the public defender system,’ [however,] 17 could be charged to the State.” Id. (internal citation omitted); see also People v. Williams, 58 Cal. 18 4th 197 (2013) (“[O]ur specific focus in this inquiry must be on whether a systemic breakdown has 19 occurred, not on whether any particular attorney or attorneys performed deficiently.”). 20 Defendants’ assertions of speedy trial rights “are ‘entitled to strong evidentiary weight’ in 21 determining whether [a defendant’s] rights to a speedy trial have been denied[,] . . . [but] must be 22 viewed in the light of respondents’ other conduct.” United States v. Loud Hawk, 474 U.S. 302, 23 314–15 (1986); see also Barker, 407 U.S. at 532 (“[F]ailure to assert the right will make it 24 difficult for a defendant to prove that he was denied a speedy trial.”). Finally, prejudice “should 25 be assessed in the light of the interests of defendants which the speedy trial right was designed to 26 protect . . . : (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of 27 the accused; and (iii) to limit the possibility that the defense will be impaired.” Barker, 407 U.S. 1 Smith argues that the Superior Court’s order granting his release “establish[es] a due 2 process violation occurred from at least May 23, 2014[,] to April 3, 2019.” ECF No. 87 at 9. 3 Because Smith does not argue that collateral estoppel applies, however, the Court cannot grant 4 preclusive effect to the opinion of the habeas court. In deciding these motions for summary 5 judgment, the Court considers only the evidence properly in the record in this case. See Fed. R. 6 Civ. P. 56(c)(1) (“A party asserting that a fact cannot be . . . genuinely disputed must support the 7 assertion by: (A) citing to particular parts of materials in the record, including depositions, 8 documents, electronically stored information, affidavits or declarations, stipulations . . . , 9 admissions, interrogatory answers, or other materials[.]”). 10 Smith is not entitled to summary judgment because there exist genuine disputes of material 11 fact as to the existence of a constitutional violation, including regarding whether and when Smith 12 asserted and waived his right to trial and the reasons for pre-trial delay, which must be resolved by 13 a trier of fact. McCormick, Smith’s first attorney, was informed that Smith wanted a speedy trial 14 in 2008, and McCormick subsequently set a trial date in 2009. ECF No. 87-1 at 400 (memo from 15 D. Feld to McCormick dated February 8, 2008, noting that Smith “said he wanted a no time 16 waiver probable cause hearing and speedy trial”); id. at 414 (letter from Smith to McCormick 17 dated September 5, 2008, stating “I seek a speedy trial”); id. at 419 (transcript of September 12, 18 2008 court proceedings, in which McCormick requests to set trial for October 2009); id. at 424 19 (transcript of November 7, 2008 court proceedings, in which McCormick states that he has “six 20 other trials scheduled next year,” and that “it’s a much different posture for someone accused of 21 being an SVP to agree to give his lawyer time to prepare for a trial where the rest of his life is 22 potentially at stake”); ECF No. 118-1 at 84 (McCormick deposition) (“I’m pretty sure I told him 23 what [the trial date] was, and he agreed to it.”). In September 2009—before the scheduled trial— 24 the ACPD declared a conflict in Smith’s case. ECF No. 118-1 at 89–90. CAAP attorney Levy 25 was appointed counsel for Smith, and the trial date was continued. The parties offer conflicting 26 evidence regarding whether and how Smith asserted and waived his speedy trial right during the 27 eight years Levy represented him. See, e.g., ECF No. 118-1 at 173 (stating that, as of November 1 case for trial sooner, Smith declined); ECF No. 118-1 at 530:13–531:10 (transcript of May 23, 2 2014 court proceedings, during which Smith affirmatively waived time); ECF No. 87-1 at 1132 3 (letter from Smith to judge and prosecutor, filed April 7, 2015, stating, “I Mr. Smith wish to have 4 and demand trial and refuse to wa[i]ve no more time”); id. at 1137 (letter from Smith to Levy, 5 dated November 5, 2016, instructing her to “[s]top waiving time”); ECF No. 118-1 at 169 (stating 6 that, as of July 2017, when Levy transferred the case file to Avilla, Smith had waived time). The 7 record suggests that Avilla, the CAAP attorney who took over from Levy in 2017, also believed 8 Smith had waived time. ECF No. 118-1 at 225:8–226:1. After Vasquez was decided, aware that it 9 could apply to Smith’s lengthy detention, Avilla asked the Court to appoint Smith a new attorney. 10 ECF No. 118-1 at 228:1–14. 11 Because a genuine dispute exists regarding whether and when Smith asserted and waived 12 his right to a speedy trial, and such facts are material to the Barker analysis,1 the Court cannot 13 grant summary judgment as to the existence of a constitutional violation. 14 C. Monell Liability 15 Absent a predicate constitutional violation, Smith is not entitled to summary judgment on 16 his claim that the County is liable pursuant to Monell v. Department of Social Services of City of 17 New York, 436 U.S. 658, 694 (1978). Defendants move for summary judgment on the same claim, 18 arguing that Smith cannot establish Monell liability. 19 To establish Monell liability, a plaintiff must prove “(1) that [the plaintiff] possessed a 20 constitutional right of which [s]he was deprived; (2) that the municipality had a policy; (3) that 21 this policy amounts to deliberate indifference to the plaintiff’s constitutional right; and (4) that the 22 policy is the moving force behind the constitutional violation.” Dougherty v. City of Covina, 654 23 F.3d 892, 900 (9th Cir. 2011) (alterations in original) (quoting Plumeau v. Sch. Dist. No. 40 Cnty. 24 1 Smith argues that whether he asserted his speedy trial right is irrelevant to the Barker analysis in 25 this case because none of his attorneys ever prepared for trial, such that any trial he could have had would not have been a fair one. ECF No. 87 at 25. Though the Supreme Court noted that none of 26 these factors is necessary or sufficient to find a constitutional deprivation, “they are related factors and must be considered together with such other circumstances as may be relevant” to the court’s 27 “difficult and sensitive balancing process.” Barker, 407 U.S. at 533 (emphasis added). Smith’s 1 of Yamhill, 130 F.3d 432, 438 (9th Cir. 1997)). “Deliberate indifference exists when the need ‘for 2 more or different’ action ‘is so obvious, and the inadequacy [of existing practice] so likely to 3 result in the violation of constitutional right, that the policymakers of the city can reasonably be 4 said to have been deliberately indifferent to the need.” Hyun Ju Park v. City & Cnty. of Honolulu, 5 952 F.3d 1136, 1141 (9th Cir. 2020) (quoting City of Canton v. Harris, 489 U.S. 378, 390 & n.10 6 (1989)). “[A] failure to supervise that is ‘sufficiently inadequate’ may amount to ‘deliberate 7 indifference.’” Dougherty v, 654 F.3d at 900 (quoting Davis v. City of Ellensburg, 869 F.2d 1230, 8 1235 (9th Cir. 1989)). “Whether a local government entity has displayed a policy of deliberate 9 indifference is generally a question for the jury.” Gant v. Cnty. of Los Angeles, 772 F.3d 608, 618 10 (9th Cir. 2014) (emphasis omitted) (quoting Oviatt v. Pearce, 954 F.2d 1470, 1477–78 (9th Cir. 11 1992)). 12 Smith generally argues that the County failed to train or supervise ACPD and CAAP 13 attorneys appointed to represent accused SVPs, and that this failure caused the violation of his 14 speedy trial rights.2 If Smith is ultimately able to establish a constitutional violation, there is 15 sufficient evidence from which a jury could find that the County’s failure to implement any 16 supervision, reporting, or other oversight requirements on the attorneys it hired to represent 17 accused SVP offenders amounted to deliberate indifference. SVP attorneys were not assigned 18 supervisors and their work was not reviewed by others. See, e.g., ECF No. 87-1 at 809 (Bellas 19 deposition) (“[T]he attorneys in that unit were gold standard attorneys who do not require, quote, 20 supervision, unquote, as people commonly name that term.”); id. at 810 (“I trusted their – their 21 work and trusted that if any issues arose in their unit, they would bring those to my attention.”); id. 22 at 790 (Woods deposition) (“The unit didn’t need a supervisor.”); id. at 811 (“Their [case] files 23 2 Defendants argue that the County cannot be held liable for “actions taken by independent court- 24 appointed attorneys retained by third party entities where the County has merely contracted with the third-party for conflict counsel.” ECF No. 118 at 44. Defendants misstate Smith’s theory of 25 liability: Smith argues that the County is liable for its policy of inaction with regard to supervision, training, or oversight of its public defense system. That CAAP attorneys are not 26 County employees does not preclude municipal liability under Monell; CAAP attorneys are part of the system by which the County provides public defense services. See Wilbur v. City of Mount 27 Vernon, 989 F. Supp. 2d 1122, 1131-32 (W.D. Wash. 2013) (holding that municipality was liable 1 were not reviewed outside the unit.”); id. at 768 (SVP attorneys did not receive performance 2 reviews). The amount of time and resources SVP attorneys spent on each case was not reported or 3 monitored. Id. at 775–76. ACPD did not track SVP trial outcomes, and Bellas was not aware of 4 how long accused SVPs had been detained awaiting trial. Id. at 796, 801–803. The office also 5 had no policy regarding whether SVP cases should be adjudicated within a specific period of time. 6 Id. at 805. CAAP attorneys were similarly unsupervised, and were not required to make any post- 7 assignment reports regarding the progress of the case. ECF No. 87-1 at 779–80; id. at 806. 8 Though both ACPD and CAAP filed reports with the County on an ongoing basis, neither ACPD 9 nor CAAP reported information regarding the progress of SVP cases to the County. ECF No. 87- 10 1 at 832–913, 927, 960–61, 1061–62; ECF No. 118-14 ¶ 13; ECF No. 118-2 at 93, 136. The 11 record shows no means by which ACPD, CAAP, or the County could ensure that accused SVP 12 offenders ever went to trial at all. See Wilbur, 989 F. Supp. 2d at 1132 (“[T]he monitoring 13 decisions made by the policymaking authorities of the [] ensured that any defects in the public 14 defense system would go undetected or could be easily ignored.” ) And a jury could find that this 15 lack of supervision or oversight of the County’s defense services caused the constitutional 16 violation “in the sense that the municipality could have prevented the violation with an appropriate 17 policy.” Jackson, 749 F.3d at 763. 18 Defendants’ motion for summary judgment as to the Monell claim is denied. 19 D. Qualified Immunity 20 “Qualified immunity shields government officials from civil damages liability unless the 21 official violated a statutory or constitutional right that was clearly established at the time of the 22 challenged conduct.” Reichle v. Howards, 566 U.S. 658, 664 (2012). “It is the plaintiff who 23 ‘bears the burden of showing that the rights allegedly violated were clearly established.’” Id. at 24 1118 (quoting LSO, Ltd. v. Stroh, 205 F.3d 1146, 1157 (9th Cir. 2000)). “For a right to be clearly 25 established, case law must ordinarily have been earlier developed in such a concrete and factually 26 defined context to make it obvious to all reasonable government actors, in the defendant’s place, 27 that what he is doing violates federal law.” Shafer v. Cnty. of Santa Barbara, 868 F.3d 1110, 1117 1 Smith argues that his right to a speedy trial in the context of SVP proceedings was clearly 2 || established “not just under Litmon, [162 Cal. App. 4th at 383] but under all of the Supreme Court 3 precedents cited by Litmon.” ECF No. 122 at 22. As discussed above, the right to a speedy trial 4 || inthe SVP context has not been addressed in any precedential opinions by the Supreme Court or 5 the Ninth Circuit. None of the Supreme Court cases cited in Litmon concerned civil commitment 6 || proceedings. “Absent binding precedent, [courts in the Ninth Circuit] look to all available 7 decisional law, including the law of other circuits and district courts, to determine whether the 8 || right was clearly established.” Osolinski v. Kane, 92 F.3d 934, 936 (9th Cir. 1996). Assuming for 9 || the sake of argument that Litmon constitutes available decisional law sufficient to clearly establish 10 || the right, however, Smith does not cite any case that would have made it obvious to any 11 reasonable individual in Bellas or Woods’ position that their lack of supervision of ACPD SVP 12 attorneys would violate that right. 5 13 The Court concludes that Bellas and Woods are entitled to qualified immunity. 14 || Accordingly, the Court grants summary judgment to Defendants on Smith’s claims against Bellas 3 15 and Woods. 16 CONCLUSION 3 17 Smith’s motion for summary judgment is denied. Defendants’ motion for summary 18 || judgment is granted with respect to Smith’s claims against Bellas and Woods, who are entitled to 19 qualified immunity, and is denied in all other respects. 20 IT IS SO ORDERED. 21 Dated: August 9, 2023 . .

22 JON S. TIGA 23 nited States District Judge 24 25 26 27 28