Unpublished Disposition, 898 F.2d 156 (9th Cir. 1984)

MEMORANDUM^* 

Melissa Pence, a 16 year old ward of the state of California, died in an alleged suicide while in the custody of the California Youth Authority (CYA) at the Ventura School, a locked facility for juvenile females. Her grandmother, Mary Rohde, brought this suit as administratix of Pence's estate for damages under 42 U.S.C. § 1983, alleging various deprivations of Pence's constitutional rights. Rohde now appeals a district court order granting summary judgment to all the defendants and dismissing the suit.

FACTS AND PRIOR PROCEEDINGS

When she was 12 years old, Melissa Pence was abandoned by her mother and became a prostitute. During the next several years she was arrested several times for prostitution, out of control behavior and, in one instance, burglary. She was placed in several different group homes for youth in Kern County, but ran away from each of them. Because of the absence of suitable placements for her in Kern County, the juvenile authorities committed her to the custody of the CYA in January 1984.

Pence was sent to the Ventura School and in March 1984 was placed in Alborada Cottage, which has a specialized counseling program. Alborada residents, including Pence, participated in a number of group counseling sessions on issues such as assertion, criminal personality, pre-parole, reality therapy, self-image and substance abuse. Pence also had regular individual counseling sessions with the school psychologist, Dr. Edward Daube, and her youth counselor, Joe Shofner. Throughout her stay at Alborada Pence had disciplinary problems, repeatedly receiving disciplinary reports and sanctions for rule violations.

Sometime in late November, Pence deliberately cut her left wrist. The parties dispute both the seriousness of the physical wound inflicted and whether or not the incident represented a genuine suicide attempt. Apparently no immediate steps were taken to assess her state of mind, although Dr. Daube did speak with Pence about the incident a couple of days later. According to his report, she appeared to be embarrassed about her actions and stated that she had realized after her injury that she had much "too much to live for."

On December 13, 1984 Pence attended a case conference with several of the defendants to discuss her progress. At that meeting she requested transfer from Alborada, but was denied. She returned to her room around 3 p.m. At approximately 4:35 p.m., Pence was found unconscious by a staff member. She was hanging loosely from a bed sheet around her neck which was tied to the clothes bar in her closet. She died the next day in a nearby hospital.

Rohde, on behalf of Pence's estate, brought suit under 42 U.S.C. § 1983 against a number of the counselors and staff members at Alborada Cottage, as well as several CYA supervisors, seeking damages for alleged violations of the decedent's constitutional rights. The district court concluded that the plaintiff had failed to produce sufficient evidence of any constitutional violations and entered summary judgment for all the defendants. The plaintiff timely appealed. We have jurisdiction over her appeal from a final order of the district court, 28 U.S.C. § 1291, and affirm the judgment.

We review a grant of summary judgment de novo, applying the same standard as the trial court under Fed. R. Civ. P. 56(c). Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986). Viewing the evidence in the light most favorable to the plaintiff, we must determine whether there are any genuine issues of material fact and whether the district court applied the proper legal standards. Ashton v. Cory, 780 F.2d 816, 818 (9th Cir. 1986).

DISCUSSION

In order to establish liability under Sec. 1983, a plaintiff must prove two essential elements: (1) that the conduct complained of was committed by defendants acting under color of state law; and (2) that the conduct resulted in a deprivation of rights, privileges, or immunities secured by the Constitution or the laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535 (1981). In this case, all of the defendants are employees of the CYA, a state agency entrusted with the custody of Pence through the juvenile court system. Their decisions and actions regarding her treatment and supervision were clearly taken under color of state law.

The more difficult question is whether Pence was deprived of any constitutional rights as a result of the defendants' conduct. The plaintiff alleges several constitutional violations: inadequate medical care in violation of the Eighth Amendment; deprivation of life and liberty in violation of the due process clause of the Fourteenth Amendment; and disparate treatment of adolescent females and males in the juvenile system in violation of the equal protection clause of the Fourteenth Amendment. We consider each of these claimed constitutional violations in turn:

Rohde alleges that the Alborada staff was deliberately indifferent to Pence's serious need for psychiatric care and an alternative treatment setting. She argues that their failure to diagnose Pence's suicidal tendencies and to provide appropriate care and supervision led to her mental deterioration and ultimate suicide.

While deliberate indifference to serious medical needs constitutes cruel and unusual punishment forbidden by the Eighth Amendment, Estelle v. Gamble, 429 U.S. 97, 104 (1976), this standard applies only to the treatment of convicted prisoners. Bell v. Wolfish, 441 U.S. 520, 535 n. 16 (1979). In the absence of an adjudication of guilt in accordance with due process of law, the state has no power to punish and hence, the Eighth Amendment's prohibition of "cruel and unusual punishment" has no application. Those persons in the custody of the state who have not been convicted are afforded protection from all forms of punishment and from unreasonable conditions of confinement by the Fourteenth Amendment. Youngberg v. Romeo, 457 U.S. 307 (1982) (involuntarily committed mentally retarded persons have substantive due process rights); Maddox v. City of Los Angeles, 792 F.2d 1408, 1414 (9th Cir. 1986) (pretrial detainee's section 1983 action arises under due process clause of Fourteenth Amendment, not Eighth Amendment).

We have held that juvenile detentions are "noncriminal and nonpenal." Gary H. v. Hegstrom, 831 F.2d 1430, 1432 (9th Cir. 1987) (Fourteenth Amendment applies to conditions of confinement where Oregon statute states the chief objectives of school were educational and reformatory rather than penal.) Because the primary objective of Alborada Cottage and the Ventura School is rehabilitation, rather than punishment, the conditions of Pence's confinement should be evaluated under Fourteenth Amendment, not Eighth Amendment standards. Id. Any claim of inadequate medical care is subsumed under plaintiff's allegations that Pence's treatment at Alborada Cottage violated her substantive due process rights.

In Daniels v. Williams, 474 U.S. 327 (1986), and Davidson v. Cannon, 474 U.S. 344 (1986), the Supreme Court made clear that mere negligence by state officials does not rise to the level of a constitutional violation. However, the Court left open the possibility that something more than negligence, but less than intentional conduct, could trigger the protections of the due process clause. Daniels, 474 U.S. at 334, n. 3. We have held that injury caused by the gross negligence or recklessness of state officials may infringe upon interests protected by the Fourteenth Amendment and is actionable under Sec. 1983. Fargo v. City of San Juan Bautista, 857 F.2d 638, 640 (9th Cir. 1988). But See Wood v. Ostrander, 879 F.2d 583, 588 (9th Cir. 1989) (calling into question the gross negligence standard set out in Fargo in light of the deliberate indifference standard expressed by the Supreme Court in City of Canton v. Harris, 109 S. Ct. 1197 (1989)).¹ 

In granting the defendants' motion for summary judgment, the district court did not specifically consider whether defendants' conduct toward Pence was reckless or grossly negligent. Nevertheless, we may affirm the grant of summary judgment on any basis fairly supported by the record. Hoohuli v. Ariyoshi, 741 F.2d 1169, 1177 (9th Cir. 1984). Viewing the evidence in the light most favorable to the plaintiff, we find no genuine issue of material fact that the defendants' conduct went beyond mere negligence.

Rohde asserts that the Alborada staff failed to obtain a complete and accurate history and psychological assessment when Pence was first transferred to their care. She also claims that Pence's mental deterioration was evident in the fall of 1984 and that she had verbalized her growing sense of hopelessness to staff members on several occasions; yet none of the defendants intervened to prevent her suicide.

In retrospect, it is easy to say that Pence should have received better psychological care and closer supervision during the final weeks of her life. However, the reasonableness of the defendants' conduct must be evaluated in light of the information available to them at the time. The staff of the CYA was not inattentive to her needs. She was initially committed to the CYA to provide her with the intensive psychological counseling available in a closed setting. During her stay at Alborada, she received group and individual counseling, including at least 23 individual therapy sessions with Dr. Daube.

Although she had sustained a self-inflicted wound a few weeks before her death, she appeared embarrassed about the incident afterwards, saying that she had "too much to live for." On the day she was found unconscious, Pence had been questioned by defendants Daube and Shofner, who expressed concern about her state of mind. At that time she denied having any suicidal thoughts. They may have been negligent in failing to recognize her suicidal intent; however, their decision not to monitor her more closely after she returned to her room that day was an exercise of professional judgment made in good faith, no matter how mistaken it may appear in hindsight. Even accepting the plaintiff's version of the facts, the defendants cannot be said to have acted recklessly or with gross negligence in supervising and caring for Pence.

In addition to the charge of inadequate medical care, the plaintiff alleges that Pence was deprived of her liberty interests in "the least restrictive confinement in a rehabilitative environment, to her safety of life and limb, ... to segregation from hardened criminal offenders and their influences, intimidations, and harassment." She claims that Alborada Cottage was overcrowded and that it was an inappropriate therapeutic setting for Pence because most of the other wards were older, more criminally sophisticated and many had severe emotional problems. In essence, she charges that placing Pence in Alborada Cottage and refusing her request for a transfer violated her due process rights.

The Supreme Court has held that involuntarily committed mentally retarded persons have certain substantive due process rights, such as the right to safety, freedom of movement and minimally adequate training. Youngberg v. Romeo, 457 U.S. 307, 315-9 (1982). The Fourteenth Amendment undoubtedly affords juveniles in the custody of the state similar protections. However, the liberty interests recognized in Romeo are not absolute, but must be balanced against the legitimate interests of the state and the valid purposes of the institution. Id. at 320. In striking this balance, the courts "must show deference to the judgment exercised by a qualified professional." Id. at 322.

In this case, Pence's initial placements were in less restrictive environments, all of which proved unsuccessful. She was then committed to the custody of the CYA in order to provide her with closer supervision and more intensive counseling. The decisions concerning her placement and treatment were made after evaluation of her history and needs by professionals and are therefore "presumptively valid." Id. at 323. The plaintiff has not shown that those decisions depart so substantially from accepted professional judgment or practice as to warrant a finding of a constitutional violation.

The plaintiff also contends that Pence was denied the equal protection of the laws because the CYA offers a greater variety of rehabilitation programs for adolescent males than females. This contention is wholly unsupported by any specific factual allegations of disparate treatment or any evidence in the record. With no more than plaintiff's conclusory assertion of a constitutional violation, the district court properly granted summary judgment on this issue.

The appellant claims that the trial court should not have granted the defendants' motion for summary judgment before she could compel discovery. She claims that her discovery requests were "substantially specified" and that the defendants had refused to comply with her requests. We review a district court's denial of a request for further discovery before considering a summary judgment motion for an abuse of discretion. Foster v. Arcata Associates, Inc., 772 F.2d 1453, 1467 (9th Cir. 1985) cert. denied 475 U.S. 1048 (1986).

Rule 56(f), Fed. R. Civ. P., provides a procedure whereby a party opposing a summary judgment motion may seek a continuance to permit further discovery. We have held that where an appellant fails to follow the proper procedures under the Federal Rules, the trial court may properly deny its discovery request and proceed to summary judgment. Id. at 1467. Although a motion to compel production may be sufficient to raise Rule 56(f) consideration, Garrett v. City and County of San Francisco, 818 F.2d 1515, 1518 (9th Cir. 1987), " [r]eferences in memoranda and declarations to a need for discovery do not qualify as motions under Rule 56(f)." Brae Transportation, Inc. v. Coopers & Lybrand, 790 F.2d 1439, 1443 (9th Cir. 1986).

In this case, Rohde neither made a formal motion to compel production of the necessary documents, nor did she avail herself of Rule 56(f) by submitting affidavits stating that certain essential facts were unavailable without further discovery. Moreover, plaintiff's opposition to summary judgment does not state specifically what additional evidence might be gained through further discovery or how it might materially affect the outcome. Under these circumstances, the district court did not abuse its discretion in denying plaintiff's request for additional discovery.

The appellant also contends that the trial court erred in awarding costs, although no arguments are advanced to support this contention. A trial court's decision regarding an award of costs should be reversed only where it has abused its discretion. Schwarz v. Folloder, 767 F.2d 125, 131 (5th Cir. 1985).

Rule 54(d), Fed. R. Civ. P., provides that "costs shall be allowed as of course to the prevailing party unless the court otherwise directs." The explicit language of this rule makes an award of costs to the prevailing party automatic. While it is true that the trial court has discretion not to award costs, its failure to exercise that discretion does not constitute error.

CONCLUSION

The plaintiff has failed to raise any genuine issue of fact material to her allegations that the decedent's constitutional rights were violated. We affirm the order of the district court granting defendants' motion for summary judgment.