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Elmer Stephen Wereb and Betty Jean Wereb v. Maui County


November 10, 2011


The opinion of the court was delivered by: J. Michael Seabright United States District Judge




Plaintiffs Elmer and Betty Wereb ("Plaintiffs") brought this suit under 42 U.S.C. § 1983 after their son, Dennis Wereb ("Wereb"), died while in Defendant Maui County's (the "County") custody at the Lahaina, Maui, Police Station. On July 28, 2010, the court issued its Order (1) Granting in Part and Denying in Part Defendants Hankins, Burgess, Lee, Gomes, Amano, Alvarez, Mawae, and Kia's Motion for Summary Judgment, and (2) Denying Defendant Maui County's Motion for Summary Judgment (the "July 28, 2010 Order"). See Doc. No. 114, July 28, 2010 Order (published as Wereb v. Maui County, 727 F. Supp. 2d 898 (D. Haw. 2010)). The County now moves under Local Rule 60.1(b) for reconsideration of relevant parts of the July 28, 2010 Order, given the intervening Opinion in Connick v. Thompson, 131 S. Ct. 1350 (2011).

The July 28, 2010 Order addressed all aspects of Plaintiffs' action, including individual-capacity claims against eight different County employees, defenses of qualified immunity as to some officials, potential supervisorial liability, state law claims, as well as potential municipal liability against the County under Monell v. New York City Department of Social Services, 436 U.S. 658 (1978). Connick and the present Motion now focus the court specifically on municipal liability and the question whether the County could have been "deliberately indifferent" to Wereb's constitutional rights. More precisely, the Motion is directed at the narrow issue of potential municipal liability for failure to train, where only a "single incident" of a constitutional violation is allowed. The Motion requires the court to scrutinize Plaintiffs' theory of municipal liability, and to re-examine and refine the legal analysis in light of Connick.

After carefully studying the contours of the Supreme Court's latest explanation of the "single-incident" theory of municipal liability, the court GRANTS the County's Motion IN PART, and thus GRANTS summary judgment IN PART in favor of the County on an aspect of Plaintiffs' § 1983 claim.


The relevant portion of the July 28, 2010 Order denied the County's Motion for Summary Judgment by addressing potential municipal liability against the County under Monell, and determining that genuine issues of material fact remain for trial against the County.*fn1

The July 28, 2010 Order extensively sets forth the circumstances that led to Wereb's death and Plaintiffs' corresponding theory or theories of liability against the County based on inadequate training of its Public Safety Aides ("PSA"). The court need not repeat the details here, as the County largely seeks reconsideration based on legal, not factual, grounds.*fn2 Accordingly, this Order is restricted solely to the question of whether an intervening change in law requires the court to reconsider its July 28, 2010 Order as to potential County liability.

The court denied the County's Motion for Summary Judgment because, construing factual inferences in favor of Plaintiffs, a reasonable factfinder could conclude that the County failed to train its employees who were responsible for monitoring pretrial detainees, and that such training was "deliberately indifferent" to their medical needs. Wereb, 727 F. Supp. 2d at 923. According to Plaintiffs' evidence, "Maui County's employees did not receive training on what to look for when monitoring detainees via video, . . . and did not receive training on how to determine if detainees were at risk for alcohol withdrawal[.]" Id. at 922 (citations to record omitted). The court explained:

A reasonable factfinder could find that the failure to provide detainees with the right to medical care was an obvious consequence of Maui County's employees' failure to closely monitor detainees or view them in person. The fact that Wereb lay motionless for approximately twenty-seven hours before he was found dead supports the conclusion that detainees were not monitored with a level of care required to notice even the most basic of medical needs. Further, given the known drawbacks of monitoring by video -- including the inability to spot signs of medical distress like sweating, shaking, or changes in skin color -- it should have been obvious to Maui County that monitoring detainees exclusively by video would deprive county employees of an accurate understanding of detainees' medical needs.

Id. (emphases added). The court further reasoned that the County had knowledge of specific needs of detainees:

The danger of Maui County's failure to train its employees in monitoring was further exacerbated by the fact the detainees in Maui are particularly likely to require medical care. [Maui Police Department's ("MPD")] Chief of Police, as well as many MPD employees, are aware that a large population of homeless alcoholics live in Maui and frequent the Lahaina Police Station. . . . . As a result, it should have been obvious to Maui County that its employees would likely encounter detainees experiencing alcohol withdrawal, which can be accompanied by serious and life-threatening side effects.

Id. at 923 (emphasis added and internal record citations omitted).

In so reasoning, the court was applying the principles of "deliberate indifference" that were explained earlier in the July 28, 2010 Order, in part as follows:

[M]unicipal liability may be imposed when "the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need." Canton [v. Harris], 489 U.S. [378, 390 (1989)]; see also Bd. of County Comm'rs [of Bryan Cnty.] v. Brown, 520 U.S. 397, 407-09 (1997) (explaining that deliberate indifference may be shown through a "pattern of tortious conduct by inadequately trained employees" or where "a violation of federal rights may be a highly predictable consequence of a failure to equip law enforcement officers with specific tools to handle recurring situations").

Wereb, 727 F. Supp. 2d at 922. Although the court did not specifically state it as such, the court was applying the single-incident theory recognized in Canton as a method of proving "deliberate indifference" in a municipality's failure to train employees. Under Canton -- even in the absence of a prior pattern of violations --in certain limited situations a need for training can be "so obvious," and "so likely to result in the violation of constitutional rights," that "the failure to provide proper training may fairly be said to represent a policy for which the city is responsible, and for which the city may be held liable if it actually causes injury." 489 U.S. at 390. Canton exemplified such "obviousness" by noting:

For example, city policymakers know to a moral certainty that their police officers will be required to arrest fleeing felons. The city has armed its officers with firearms, in part to allow them to accomplish this task. Thus, the need to train officers in the constitutional limitations on the use of deadly force, see Tennessee v. Garner, 471 U.S. 1 (1985), can be said to be "so obvious," that failure to do so could properly be characterized as "deliberate indifference" to constitutional rights.

Id. at 390 n.10. This was the theory Plaintiffs advocated in opposing the County's prior Motion for Summary Judgment, see Doc. No. 97, Pls.' Resp. to County's Mot. for Summ. J. at 22-24, and remains their primary theory of municipal liability.*fn3

On October 6, 2010, the Supreme Court heard oral argument in Connick, where the question presented was originally stated as "does imposing failure-to-train liability on a district attorney's office for a single Brady [v. Maryland, 373 U.S. 83 (1963),] violation contravene the rigorous culpability and causation standards of Canton and Bryan County [v. Brown,520 U.S. 397 (1997)]?" See Connick v. Thompson, 130 S. Ct. 1880 (2010) (mem.) (granting certiorari "limited to Question 1 presented by the petition"); Connick v. Thompson, 2009 WL 3776259, at *i (Nov. 6, 2009) (Petition for Writ of Certiorari setting forth questions presented). That is, the Supreme Court was to address important aspects of the very theory that this court applied in part in its July 28, 2010 Order -- this case centers on issues of "single incident" municipal liability as stated in Canton, and the Supreme Court was considering "the rigorous culpability and causation standards of Canton and Bryan County." The court thus found it appropriate to wait for an Opinion in Connick before proceeding with a trial that was then-scheduled to take place in the time frame of Connick's anticipated release. See Doc. No. 145, Mins. of Mar. 10, 2011 Conf. The court subsequently re-set the trial date to December 6, 2011. Doc. No. 149.

On March 29, 2011, the Supreme Court issued Connick, holding that a district attorney's office may not be held liable under § 1983 for failure to train its prosecutors based upon a single Brady violation. 130 S. Ct. at 1356. Connick discussed and reiterated certain principles, as explained below. Accordingly, on July 12, 2011, the County filed its Motion for Reconsideration, asking this court to review relevant parts of its July 28, 2010 Order. Doc. No. 171. Plaintiffs filed a Response on September 12, 2011, Doc. No. 188, and the County filed its Reply on September 19, 2011, Doc. No. 192. The court heard the Motion on October 3, 2011. The court received Supplemental Memoranda on October 31, 2011 and November 3, 2011. Doc. Nos. 200, 201.


A "motion for reconsideration must accomplish two goals. First, a motion for reconsideration must demonstrate reasons why the court should reconsider its prior decision. Second, a motion for reconsideration must set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision." Donaldson v. Liberty Mut. Ins. Co., 947 F. Supp. 429, 430 (D. Haw. 1996).

Under Local Rule 60.1, only three grounds justify reconsideration:

(1) an intervening change in controlling law; (2) the discovery of new evidence not previously available; and (3) the need to correct clear or manifest error in law or fact in order to prevent manifest injustice.*fn4 See, e.g., White v. Sabatino, 424 F. Supp. 2d 1271, 1274 (D. Haw. 2006)). "Mere disagreement with a previous order is an insufficient basis for reconsideration." Id. Furthermore, reconsideration may not be based on evidence and legal arguments that a movant could have presented at the time of the challenged decision. See Kona Enter., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000); Haw. Stevedores, Inc. v. HT & T Co., 363 F. Supp. 2d 1253, 1269 (D. Haw. 2005). "Whether or not to grant reconsideration is committed to the sound discretion of the court." White, 424 F. Supp. 2d at 1274 (citing Navajo Nation v. Confederated Tribes & Bands of the Yakama Indian Nation, 331 F.3d 1041, 1046 (9th Cir. 2003)).


The court sets forth the Supreme Court's latest explanation of relevant principles in Connick, and analyzes why Connick requires the court, in limited part, to reconsider its July 28, 2010 Order.

A. Connick's Explanation of the "Single-incident" Theory of Municipal Liability

Connick began with the fundamental principle that municipalities or local governments cannot be vicariously liable under § 1983, but instead are "responsible only for 'their own illegal acts.'" 131 S. Ct. at 1359 (quoting Pembaur v. Cincinnati, 475 U.S. 469, 479 (1986)). A § 1983 plaintiff must therefore prove that an "official municipal policy" caused a plaintiff's injury. Id. (citing Monell, 436 U.S. at 691).

Only in "limited circumstances" can such an "official municipal policy" arise from "a local government's decision not to train certain employees about their legal duty to avoid violating citizens' rights." Id. "A municipality's culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to train." Id. (citing Oklahoma City v. Tuttle, 471 U.S. 808, 822-23 (1985)). Thus, "a municipality's failure to train its employees in a relevant respect must amount to 'deliberate indifference to the rights of persons with whom the untrained employees come into contact.'" Id. (quoting Canton, 489 U.S. at 388) (brackets omitted).

Proving "deliberate indifference" is not easy.*fn5 Connick reiterated that "'[d]eliberate indifference' is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action." Id. at 1360 (quoting Bryan Cnty., 520 U.S. at 410). Disregarding "a known or obvious consequence" means "city policymakers are on actual or constructive notice that a particular omission in their training program causes city employees to violate citizens' constitutional rights[.]" Id. If such notice exists, then a municipality "may be deemed deliberately indifferent if the policymakers choose to retain that program." Id. (citing Bryan Cnty., 520 U.S. at 407).

In turn, to prove "actual or constructive notice" of a constitutionally-significant gap in training, it is "ordinarily necessary" to demonstrate "a pattern of similar constitutional violations by untrained employees." Id. But Connick also reaffirmed the alternative "single-incident" theory of liability: a particular "showing of 'obviousness' can substitute for the pattern of violations ordinarily necessary to establish municipal culpability." Id. at 1361. Connick reemphasized that this single-incident theory is possible only "in a narrow range of circumstances." Id. (quoting Bryan Cnty., 520 U.S. at 409). The situation is "rare" -- "the unconstitutional consequences of failing to train" must be "patently obvious" before a municipality can be liable under § 1983 without proof of a pre-existing pattern of violations. Id. And a violation of a protected right must be a "highly predictable consequence" of a decision not to train. Id. (quoting Bryan Cnty., 520 U.S. at 409). Emphasizing its difficulty of proof, Connick nevertheless left open (as a general matter) the exceptional possibility that a failure in a municipality's training program could be so obviously deficient that it could lead to liability for damages resulting from a single violation. Id.

Applying those principles, Connick rejected municipal liability on the case's facts, reasoning that the risk that a prosecutor would commit a serious Brady violation was not "obvious." Licensed attorneys "are trained in the law and equipped with the tools to interpret and apply legal principles, understand constitutional limits, and exercise legal judgment." Id. The single-incident theory did not apply because "[i]n light of this regime of legal training and professional responsibility, recurring constitutional violations are not the 'obvious consequence' of failing to provide prosecutors with formal in-house training about how to obey the law." Id. at 1363 (citing Bryan Cnty., 520 F.3d at 409). "A licensed attorney making legal judgments, in his capacity as a prosecutor, about Brady material simply does not present the same 'highly predictable' constitutional danger as Canton's untrained officer." Id. That is, Connick rejected the single- incident theory in the Brady-violation context.

Another aspect of Connick gives renewed meaning to Canton's original principles. In distinguishing Connick's facts from the example noted in Canton, the Supreme Court found "the nuance of the allegedly necessary training" to be significant. Id. The Supreme Court observed that "[t]he Canton hypothetical assumes that the armed police officers have no knowledge at all of the constitutional limits on the use of deadly force." Id. (emphasis added). "Underl[ying] the Canton hypothetical" is an absence of training that leaves an officer with an "utter lack of an ability to cope with constitutional situations." Id. A single-incident theory can arise in circumstances with "the complete absence of legal training that the Court imagined in Canton." Id. (emphasis added). "[F]ailure-to-train liability is concerned with the substance of the training, not the particular instructional format." Id. Thus, deliberate indifference was lacking in Connick because the plaintiff's theory was necessarily "that prosecutors were not trained about particular Brady evidence or the specific scenario related to the violation in [his] case. That sort of nuance [in training] simply cannot support an inference of deliberate indifference[.]" Id.

Connick thus recognizes that Canton's single incident theory does not allow inquiry into subtleties of training. Canton should not be read to infer deliberate indifference for failure to train after any violation, for "in virtually every instance" of a constitutional violation by a city employee "a § 1983 plaintiff will be able to point to something the city 'could have done' to prevent the unfortunate incident." Id. at 1363. (quoting Canton, 489 U.S. at 392). Connick explained that showing merely that additional training would have been helpful in making difficult decisions does not establish municipal liability. "Proving that an injury or accident could have been avoided if an employee had had better or more training, sufficient to equip him to avoid the particular injury-causing conduct" will not suffice.

Id. at 1363-64 (quoting Canton, 489 U.S. at 391 (internal editorial marks omitted)). Doing so would "provide plaintiffs or courts carte blanche to micromanage local governments[.]" Id. at 1363.

B. A Single-Incident Theory Can Still Apply to Deprivations of Serious Medical Needs

Much of the County's Motion argues that, after Connick, municipal liability for deliberate indifference based on a failure-to-train for serious medical needs requires a prior "pattern or practice" of violations. But nothing in Connick itself suggests that the single-incident theory cannot apply outside the deadly-force circumstances noted in Canton. Instead, the County relies on language in Craig v. Floyd County, 643 F.3d 1306 (11th Cir. 2011), that simply states "'[p]roof of a single incident of unconstitutional activity is not sufficient to impose liability' against a municipality." Id. at 1310 (quoting Tuttle, 471 U.S. at 823-24). Craig, however, is easily distinguishable -- it is not a failure-to-train case. That is, although Craig cites Connick for the established proposition that "[a] pattern of similar constitutional violations . . . is 'ordinarily necessary,'" it nowhere purports to read Connick as narrowing a single-incident, failure-to-train theory. In fact, courts continue to recognize a training deficiency as a possible basis for finding deliberate indifference in a medical-needs context after Connick. See, e.g., Jones v. City of Cincinnati, 2011 WL 4542672, at *26 (S.D. Ohio Sept. 28, 2011) (applying, but rejecting, single-incident failure-to-train theory post-Connick where plaintiff claimed that the City deprived plaintiff of adequate medical care by failing to train on risks of "positional asphyxia"); George v. Sonoma Cnty. Sheriff's Dept., 2011 WL 2975850, at *8 (N.D. Cal. July 22, 2011) (applying theory in medical needs context); Ramirez v. Ferguson, 2011 WL 1157997, at *25-27 (W.D. Ark. Mar. 29, 2011) (same).

C. Plaintiffs' Theories of Municipal Liability

In response to the court's request for Plaintiffs to articulate their specific failure-to-train theory (or theories), Plaintiffs set forth two: (1) "Maui County failed to train its employees on how to monitor detainees to determine if they needed medical care" (the "Monitoring Theory"), and (2) Maui County "failed to train its employees on the risks, signs, and symptoms of alcohol withdrawal" (the "Alcohol Withdrawal Theory"). Doc. No. 200, Pls.' Mem. at 1, 2. The court discusses each theory in turn, mindful that "[w]hether a local government has displayed a policy of deliberate indifference to the constitutional rights of its citizens is generally a jury question." Gibson v. Cnty. of Washoe, 290 F.3d 1175, 1194-95 (9th Cir. 2002).*fn6 That is, where the evidentiary record contains genuine disputes of material fact, a jury is to decide whether a local government acted with deliberate indifference. See Patel v. Kent Sch. Dist., 648 F.3d 965, 974 (9th Cir. 2011) ("The deliberate-indifference inquiry should go to the jury if any rational factfinder could find [the] requisite mental state.").

1. Failure to Train Employees on How to Monitor Detainees to Determine If They Needed Medical Care The court concludes that Plaintiffs' Monitoring Theory remains

viable, even after Connick, and is supported by sufficient evidence in the record to create a genuine issue of material fact for trial.*fn7 Under this theory, County PSAs had no knowledge or familiarity with their relevant constitutional duties. They had no basic medical training, and no prior background in law enforcement or in prisons.*fn8 Unlike Connick, this theory does not challenge subtleties in the County's training program and thus does not implicate Connick's concerns about "micromanaging local governments." See, e.g., George, 2011 WL 2975850, at *8 ("Connick is distinguishable because the lack of training about which Plaintiffs complain here is not as specific as that rejected in Connick."). Under Plaintiffs' Monitoring Theory, the County gave its PSAs no training on how to monitor detainees,*fn9 and no training on how to monitor for deprivation of "serious medical needs." See Connick, 131 S. Ct. at 1363 (reiterating that a single-incident theory can arise in circumstances with "the complete absence of legal training that the Court imagined in Canton"). Plaintiffs challenge the "substance" of the training, not the "format." Id. As argued by Plaintiffs, the result of this failure to train led to a practice -- arguably contrary to the County's written policy in G.O. 408.6 (see Doc. No. 99-12, Heipt Decl. Ex. J, at 10-11) -- of not conducting any in-person physical checks of detainees, and relying on a video monitoring system that was inadequate to detect signs and symptoms of medical distress.*fn10 Viewing the evidence in the light most favorable to Plaintiffs, the result of lack of training here was PSAs with "the utter lack of an ability to cope with constitutional situations." Connick, 131 S. Ct. at 1363.*fn11

2. Failure to Train on the Risks, Signs, and Symptoms of Alcohol Withdrawal Plaintiffs' Alcohol Withdrawal Theory, however, runs afoul of Connick. Simply put, it is too specialized and narrow -- it could not have been "patently obvious" that unconstitutional consequences would be a highly predicable result of a failure to train specifically on alcohol withdrawal. The

Alcohol Withdrawal Theory is not of the same character as exemplified in Canton's hypothetical, and as reemphasized and distinguished in Connick. That apparently no prisoner at the Lahaina Police Station has suffered injury from alcohol withdrawal from 1993 until Wereb's death (assuming he died of withdrawal) suggests an unconstitutional result was not obvious. Doc. No. 172-1, Yabuta Decl. ¶ 5.

Post-Connick caselaw supports this conclusion. See Jones, 2011 WL 4542672, at *26 (rejecting claim that municipality could be liable under single-incident theory for failure to train officers in prevention of "positional asphyxia"); Elix v. Synder, 2011 WL 2746111, at *4-5 (W.D. Okla. June 21, 2011) ("Plaintiff's focus on the content of the training would not create a triable issue of fact" where challenge was on City's failure to train on apprehending a suspect fleeing on foot.).

Allowing Plaintiffs' Alcohol Withdrawal Theory (as a stand alone theory of single-incident deliberate indifference) to be presented to a jury would raise the potential of requiring municipalities to train and screen for virtually any medical situation that might arise -- diabetes, drug withdrawal, alcohol withdrawal, pneumonia, schizophrenia, hypertension, positional asphyxia, excited delirium syndrome, agorophobia (the list might not end) -- and face potential liability for any gap in training on medical conditions with no prior notice of a constitutional problem.*fn12 "This is precisely the kind of micromanagement of local law enforcement that the Supreme Court has instructed [courts] to avoid." Conn v. Reno, 591 F.3d 1081, 1087 (9th Cir. 2010) (Kozinski, C.J., dissenting from denial of rehearing en banc).

The Court in [Canton] was clear that deliberate indifference means more than negligence, and that a high bar to liability is necessary to forestall "an endless exercise of second-guessing municipal employee-training programs" -- both because federal judges are "illsuited" to such a role and because excessive judicial intervention would "implicate serious questions of federalism."

Id. (quoting Canton, 489 U.S. at 392).

Moreover, precluding this narrow Alcohol Withdrawal theory comports with the same policy concerns expressed in Connick when the Supreme Court explained that attacking particular "nuances" in training "simply cannot support an inference of deliberate indifference." Connick, 131 S. Ct. at 1363. Connick made clear that it will not suffice to prove that an injury "could have been avoided if an employee had had better or more training, sufficient to equip him to avoid the particular injury-causing conduct." Id. It did so for the same reason that Plaintiffs' narrow Alcohol Withdrawal Theory cannot constitute deliberate indifference based on a single incident of constitutional injury -- doing so would "provide plaintiffs or courts carte blanche to micromanage local governments[.]" Id.*fn13

A similar case decided a day before Connick supports this conclusion. In Smith v. County of Lenawee, 2011 WL 1150799 (E.D. Mich. Mar. 28, 2011), the court addressed issues of civil rights violations where an alcoholic, exhibiting signs of alcohol withdrawal, died after a weekend in jail without being seen by medical personnel. Among other issues, the court denied summary judgment as to the county because of (among other deficiencies) improper or nonexistent training as to medical emergencies in general -- not as to a specific lack of training into alcohol withdrawal or delirium tremens -- where the county had prior notice of problems. Id. at *25-26. Although not a "single incident" case, Smith does indicate that a proper failure-to-train inquiry should not focus specifically on a lack of alcohol withdrawal training. Indeed, Smith reasoned that there is some question (at least in the Sixth Circuit) whether "unlike general alcohol withdrawal, delirium tremens" is a "serious medical condition." Id. at *14.

Accordingly, the court will allow Plaintiffs' Monitoring Theory to continue, but not Plaintiffs' Alcohol Withdrawal Theory. The court's July 28, 2010 Order might have allowed the narrower Alcohol Withdrawal Theory to have been presented to a jury. See Wereb, 727 F. Supp. 2d at 923. To that extent, the County's Motion for Reconsideration is GRANTED.


Connick v. Thompson, 131 S. Ct. 1350 (2011), requires the court to scrutinize Plaintiffs' specific theories of municipal liability. After such scrutiny, the court GRANTS in PART and DENIES in PART Defendant Maui County's Motion for Reconsideration.


J. Michael Seabright

Wereb v. Maui County et al., Civ. No. 09-00198 JMS-RLP, Order Granting In Part and Denying In Part Defendant Maui County's Motion for Reconsideration

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