Opinion
No. C 01-2943 SI (pr)
December 22, 2003
JUDGMENT
Judgment is entered in favor of all defendants and against plaintiff.
IT IS SO ORDERED AND ADJUDGED.
ORDER GRANTING SUMMARY JUDGMENT FOR BAY AREA COMMUNITY RESOURCES INTRODUCTION
Howard Joseph Warns, an inmate at the Correctional Training Facility in Soledad, California, filed this pro se civil rights action under 42 U.S.C. § 1983, concerning events that occurred while he was incarcerated at the Marin County Jail. Defendant Joseph Bloesch was dismissed from this action on March 14, 2003 and defendant Renee Vermazen was dismissed from this action in a separate order issued today. The remaining defendant, Bay Area Community Resources ("BACR"), has moved for summary judgment on the ground that the undisputed facts show it is not liable on Warns' failure-to-train theory. Warns has filed an opposition and supplemental opposition to BACR's motion. For the reasons discussed below, the court will grant the motion for summary judgment.BACKGROUND
A. The Pleading And Procedural HistoryIn his amended complaint, Warns alleged the following about events that occurred while he was incarcerated at the Marin County Jail in 1999: Warns enrolled himself in a drug and alcohol treatment program at the jail in June 1998 and was switched from one process group to another process group six months later. The second process group was run by defendant Renee Vermazen, a counselor in the drug and alcohol treatment program. Once moved into Vermazen's group, Warns and Vermazen engaged in personal talks that made him "uncomfortable" but about which he did not complain because she was "in a position of authority." Amended Complaint attachment, p. 1. Their interactions, which started with confidential conversations, moved on to written correspondence and eventually included "inappropriate sexual touching, fondling, and kissing." Amended Complaint., p. 3. During a search of Warns' cell on December 31, 1999, deputies found correspondence they thought was from Vermazen. A week later, Vermazen was terminated and Warns was transferred out of the drug and alcohol treatment program because of jail staff's perceptions that their relationship was inappropriate. Warns included this allegation against BACK: "I further claim Bay Area Community Resources contracted by the Marin County Probation Department to run the Drug Treatment Program at the Marin Jail who was the employer of Renee Vermazen gave inadequate training in the area of overfamiliarization with inmates in a jail setting, and Sexual Harassment. This inadequate training led to my constitutional rights being violated." Amended Complaint, p. 4.
The court construed the pro se amended complaint liberally and found that it stated a cognizable claim for relief for a violation of Warns' Eighth Amendment right to be free from cruel and unusual punishment. The court found the amended complaint stated a § 1983 claim against Vermazen based on Warns' allegation that she had engaged in coerced sexual misconduct with him, citing Jordan v. Gardner, 986 F.2d 1521, 1525-31 (9th Cir. 1993). The court cited Taylor v. List 880 F.2d 1040, 1045 (9th Cir. 1989) (supervisor generally "is only liable for constitutional violations of his subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them"), and City of Canton v. Harris, 489 U.S. 378, 388-89 (1989) (failure to train may lead to municipal liability), in finding the claim cognizable against BACK. Order of Service, p. 2.
The court ordered service of process on Vermazen, Joseph Bloesch (Vermazen's supervisor), and BACK. Bloesch was later dismissed from this action when plaintiff was unable to find a current address at which process could be served on him. Vermazen was dismissed from this action today in a separate order because she declared bankruptcy and the bankruptcy court's discharge order included a discharge of any debt arising from this action. That leaves only BACR as a defendant. BACK now claims it is entitled to summary judgment because Warns cannot raise a triable issue of fact on his failure-to-train claim.
For purposes of the present motion, the parties do not dispute that BACR was in the position of a state actor and can be subjected to liability under 42 U.S.C. § 1983. They appear to agree that BACR stands in the shoes of a municipality. It also is not necessary, for purposes of the present motion, to determine whether Vermazen engaged in the sexual harassment alleged in the amended complaint — the court decides the motion assuming as true the allegations that Vermazen sexually harassed Warns. The question here thus is the narrow one of whether there is a triable issue of fact on Warns' claim that BACR should be held liable for failure to adequately train Vermazen.
B. The Undisputed Facts
The following facts are undisputed unless otherwise noted:
1. BACR's Substance Abuse Program.
In 1986, BACR created the criminal justice alcohol and drug program under contract with Marin County's probation department. Under the program, a BACR counselor (who was a woman) provided alcohol and drug dependence assessments of pre-trial detainees and inmates at the Marin County Jail. In 1996, under contract with the Marin County Sheriffs Department, BACR counselors began offering direct in-jail education, counseling and assistance with rehabilitation for pre-trial detainees and inmates with identified substance abuse problems. In the beginning, the only individuals served were in the male inmate population and all the counselors were female. In the 7-1/2 years since that program's inception, BACK has used both male and female counselors.
The program offers various services to incarcerated substance abusers and addicts, such as evaluation and assessment of an individual's substance abuse problem and formulation of treatment recommendations and referrals. The program uses individual interviews and group sessions in the county jail. The program requires participating inmates to spend eight hours each day in program-related activities. Alcoholics Anonymous/Narcotics Anonymous book study is conducted in the morning, processing and counselling sessions are held in the mornings and afternoons, and lecture and classroom sessions are also held. The activities take place in the county jail's C-pod, which holds about 60 inmates. The services are provided by program counselors who work in the jail with male and female inmates under the direct supervision of the program manager. BACR's counselors are not the only women working with the male inmates: the Sheriff's department includes many women working in the jail and another social services agency has women working as counselors to the male inmates.
2. BACR's Sexual Harassment Policies and Training
BACR has an explicit written policy against sexual harassment. A copy of BACR's Personnel Policies and Procedures is given to all program counselors at the beginning of their employment and periodically as policies and procedures are revised. In 1999, the written Policies and Procedures prohibited any form of sexual harassment, although the portions of the Personnel Policies And Procedures labeled "Non-Harassment" and "Sexual Harassment" concern conduct between BACR employees, rather than between employees and clients of BACR. That portion of the written policy alerts employees to what BACR considers sexual harassment: "While it is not easy to define precisely what sexual harassment is, it certainly includes unwelcome sexual advances, requests for sexual favors and/or verbal or physical conduct of a sexual nature including but not limited to drawings, pictures, jokes, teasing, uninvited touching or other sexually-related comments." Williams Decl., Exh. C. Another part of the BACR written policy in place in 1999 described the activities which could result in disciplinary action: "Employees may be suspended, demoted, or dismissed for a variety of reasons, including but not limited to the following: . . . Any sexual impropriety with Agency clients." Williams Decl., Exh. C, ¶ E.1.q. BACR required all employees to acknowledge in writing when they received the Policies and Procedures. Vermazen, as a program counselor, received copies of the policies and procedures and acknowledged in writing her receipt of the materials.
The list of conduct that could warrant discipline also included "discourteous treatment of the public or of clients, or any other willful failure of good conduct tending to injure the Agency" and "Misconduct during or after working hours which adversely reflects on the reputation or goodwill of the Agency." Williams Decl., Exh. C, ¶ E.1.a and ¶ E.1.o.
Since January 2003, BACR has had a formal training program for its counselors. Before that formal training program was started, BACR's training was done on an informal basis. BACR's review of client relationships with counselors concerning issues of inappropriate testing or crossing boundaries (of which sexual harassment is a subset) was common and was managed by BACR's program supervisors on an informal basis. Vermazen denied that, while employed at BACR and working at the county jail, she ever received training in overfamiliarization or sexual harassment while working in a jail setting with inmates. Plaintiff's Exh. A (Vermazen's Response to Request For Admission No. 3).
3. Renee Vermazen and Howard Warns
Warns alleges that Vermazen engaged in sexual misconduct with him.
In late 1999, Jose Luis Gomez, the current program director of BACR's criminal justice alcohol and drug program at the Marin County Jail, became aware that Warns and Vermazen were "giving each other looks" and came to believe that Vermazen was "unable to maintain an appropriate therapeutic distance" from Warns. As a result, Warns was reassigned to Gomez's group — where he originally had been before he was transferred to Vermazen's group the preceding year. Vermazen was terminated in January 2000.
The director of the program at the Marin County Jail and the associate executive director of BACR are unaware of any other reports of sexual misconduct by BACR counselors. Warns' complaint represents the only reported claim of sexual harassment against a BACR counselor to date.
VENUE AND JURISDICTION
Venue is proper in the Northern District of California because the events or omissions giving rise to the claims occurred at the Marin County Jail in Marin County, which is located within the Northern District. See 28 U.S.C. § 84, 1391(b). This court has federal question jurisdiction over this action brought under 42 U.S.C. § 1983. See 28 U.S.C. § 1331.
LEGAL STANDARD FOR SUMMARY JUDGMENT
The court will grant summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial . . . since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986): see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (a fact is material if it might affect the outcome of the suit under governing law, and a dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.")
The moving party bears the initial burden of identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. The burden then shifts to the nonmoving party to "go beyond the pleadings, and by his own affidavits, or by the `depositions, answers to interrogatories, or admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'"Celotex, 477 U.S. at 324 (citations omitted).
A verified complaint may be used as an opposing affidavit under Rule 56, as long as it is based on personal knowledge and sets forth specific facts admissible in evidence. See Schroeder v. McDonald, 55 F.3d 454, 460 nn. 10-11 (9th Cir. 1995) (treating plaintiffs verified complaint as opposing affidavit where, even though verification not in conformity with 28 U.S.C. § 1746, plaintiff stated under penalty of perjury that contents were true and correct, and allegations were not based purely on his belief but on his personal knowledge). Warns' amended complaint was verified and will be considered in addition to his other evidence in opposition to the motion.
The court's function on a summary judgment motion is not to make credibility determinations or weigh conflicting evidence with respect to a disputed material fact. See T.W. Elec. Serv. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). The evidence must be viewed in the light most favorable to the nonmoving party, and the inferences to be drawn from the facts must be viewed in a light most favorable to the nonmoving party. See id. at 631.
DISCUSSION
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a right secured by the Constitution or laws of the United States was violated and (2) that the violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).
Local governments are "persons" subject to liability under 42 U.S.C. § 1983 where official policy or custom causes a constitutional tort, see Monell v. Dep't of Social Servs., 436 U.S. 658, 690 (1978); however, a municipality may not be held vicariously liable for the unconstitutional acts of its employees under the theory of respondeat superior, see Board of County Comm'rs v. Brown, 520 U.S. 397, 403 (1997); Monell 436 U.S. at 691. To impose municipal liability under § 1983 for a violation of constitutional rights, a plaintiff must show: (1) that the plaintiff possessed a constitutional right of which he or she was deprived; (2) that the municipality had a policy; (3) that this policy amounts to deliberate indifference to the plaintiff's constitutional rights; and (4) that the policy is the moving force behind the constitutional violation. See Plumeau v. School Dist. #40 County of Yamhill 130 F.3d 432, 438 (9th Cir. 1997).
A municipality may be liable for constitutional violations resulting from its failure to train its workers where the inadequacy of the training amounts to deliberate indifference to the rights of the people with whom the municipality comes into contact. See City of Canton v. Harris, 489 U.S. 378, 388 (1989); Van Ort v. Estate of Stanewich, 92 F.3d 831, 835 (9th Cir. 1996), cert. denied, 519 U.S. 1111 (1997); Mackinney v. Nielsen, 69 F.3d 1002, 1010 (9th Cir. 1995). Only where a failure to train reflects a "`deliberate' or `conscious' choice" by a municipality can it be thought of as a municipality's policy or custom that can support liability under § 1983. See Harris, 489 U.S. at 389. It is not enough to simply say that a training program represents a policy for which the municipality is responsible.
As noted earlier, Marin County contracted with BACR for BACK to run the substance abuse program at the county jail. The parties appear to agree that BACR stands in the place of a municipality and will be held liable under § 1983 to the same degree as if BACR was an actual department within the Marin County government.
That much may be true. The issue in a case like this one, however, is whether that training program is adequate; and if it is not, the question becomes whether such inadequate training can justifiably be said to represent "city policy." It may seem contrary to common sense to assert that a municipality will actually have a policy of not taking reasonable steps to train its employees. But it may happen that in light of the duties assigned to specific officers or employees 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. In that event, the failure to provide proper training may fairly be said to represent a policy for which the city is responsible, and for which me city may be held liable if it actually causes injury.Id. at 389-90. The appropriate inquiry on the causation issue is whether the injury would have been avoided "had the employee been trained under a program that was not deficient in the identified respect." Id. at 391. But-for causation is not enough; "[r]ather, the policy must be the proximate cause of the section 1983 injury." Van Ort, 92 F.3d at 837. As in traditional tort cases, an intervening cause may break the chain of proximate causation in a § 1983 action. See id. (defendant's unforeseeable private acts defeated proximate cause connecting county's alleged negligence to plaintiffs' injuries). Rigorous standards of culpability and causation must be applied to ensure that a municipality will not be held liable solely for the actions of its employee on a prohibited respondeat superior theory. See Board of County Comm'rs v. Brown, 520 U.S. at 405.
The starting point here is to note the limited nature of the liability question. BACK cannot be held liable merely because it employed Vermazen or Bloesch — that would be impermissible respondeat superior liability. See Monell 436 U.S. at 694. Because there is no potential for respondeat superior liability, BACR can avoid liability even if its employee Vermazen engaged in unconstitutional behavior — so long as BACR can show it was not liable on a failure-to-train theory. This fact is hugely important and makes much of Warns' presentation irrelevant. Whereas Warns spends much effort trying to prove that Vermazen engaged in sexual misconduct with him, it simply doesn't matter: the success of BACR's motion for summary judgment does not depend on an absence of sexual misconduct by Vermazen.
The fact that Vermazen's alleged unconstitutional behavior is not essential in the failure-to-train Question makes Warns' disputed facts # 1, #4, #5 and #6 irrelevant to the present motion. Disputed fact #1 ("whether sexual harassment and misconduct occurred") is irrelevant for the reasons stated in the text. Disputed fact #4 ("whether Vermazen's violations [a]ffected Plaintiff's drug treatment and future treatment") might be relevant if damages were at issue, but they aren't because BACR's liability has not been established. Disputed tact #5 (the existence of inconsistent statements by Jose Gomez about Warns' transfer between groups) does not matter on the failure-to-train Question. Disputed fact #6 (the existence of inconsistent statements about whether deputies could actually see certain areas in C-pod) is not relevant because it goes to the issue of whether Vermazen engaged in the conduct, which is not at issue here.
Disputed fact #2 ("whether overfamiliarization occurred as a general practice") and disputed fact #3 ("whether adequate training took place") are discussed elsewhere in the text.
There was training of the BACR employees. BACR presents undisputed evidence that it had a written policy at the relevant time against any sexual impropriety by an employee with a client and that Vermazen received that written policy. It also is undisputed that, at the relevant time, BACR's program supervisors reviewed client relationships with counselors concerning issues of inappropriate testing or crossing boundaries, such as sexual harassment, on an informal basis, although there is no evidence that Vermazen in particular received that kind of informal review of her client relationships. Warns presents evidence that Vermazen stated she had never been trained in sexual harassment while working in a jail setting with inmates, but this does not raise a triable issue of fact about the existence of a training program. Because Warns did not obtain a more specific response from Vermazen in his discovery request, one does not know exactly what Vermazen had in mind when she said she had not been trained. Even if Vermazen does not think she had been trained, she did receive the BACR policy manual and that policy manual did "train" employees in that it coached them in a mode of behavior or performance by telling them what was expected of them — albeit cast in terms of misbehavior (e.g., sexual impropriety with a client) that could lead to employee discipline. And Warns does not provide any evidence to dispute BACR's evidence that there was ongoing informal training of counselors in the informal review of client relationships concerning issues of inappropriate testing or crossing boundaries, even if Vermazen never received that kind of training.
Case law does not explain what "training" requires, and the court has not located any authority stating that training requires a particular method, such as sitting in a classroom, taking tests or reading books. Training refers to what is being done rather than how it is being done.See Webster's II New Riverside University Dictionary, p. 1225 (1994) (defining the verb "train" as "[t]o coach in or accustom to a mode of behavior or performance" and "[t]o make proficient with special instruction and practice").
Warns fails to show the existence of a genuine issue of material fact that the training program was inadequate. Warns must, but does not, show the existence of a genuine issue of triable fact that "in light of the duties assigned" to BACR's counselors, "the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights," that BACR "can reasonably be said to have been deliberately indifferent to the need." Harris, 489 U.S. at 390. It is undisputed that Warns' claim was the only claim of sexual harassment reported to BACR in the many years it has provided in-jail services to Marin County. Warns presents evidence showing that deputies and a BACR supervisor thought Vermazen was spending too much time with Warns, but this does not raise a triable issue of fact because spending too much time together is not an unconstitutional action and there is no evidence that spending too much time together inevitably leads to or means the counselor is engaging in sexual misconduct with the client. Warns presents no evidence that anyone ever observed him and Vermazen engaged in sexual misconduct so as to show that BACR was aware of a sexual relationship and failed to train counselors to avoid it. Rather, Warns' evidence is that Vermazen was counseled to avoid their "long sessions" and "long private counseling sessions" (Warns Decl, paragraphs 16, 18) and that Vermazen tried to keep the relationship secret, denied it when asked about it, and was terminated when evidence of it was discovered by jailers. This is hardly an instance of obvious signs of sexual misconduct showing a need for training against it. Warns also asserts that the potential for trouble should have been obvious in light of the substantial amount of time counselors spend with inmates. But his mere assertion, unsupported by any evidence, does not raise a triable issue of fact that the amount of training provided was inadequate in light of the duties assigned to counselors. Warns also argues that there is a dispute as to whether "overfamiliarization occurred as a general practice" (Plaintiffs Disputed Fact #2), but he has no admissible evidence to raise a triable issue of fact. The term "overfamiliarization" is not defined by Warns and would only matter for § 1983 purposes if it meant sexual misconduct between inmate and counselor. Vermazen consulted with Warns' family and confronted him about his security risk status that she learned from his jail file, but neither of those incidents is relevant to the failure-to-train to avoid sexual harassment issue. Warns also argues that BACR should have had a better training program, like the CDCs program of formal training on a set schedule each year on specified topics. His assertion that "formal periodic training enhances awareness so to stop certain behaviors from occurring, and to keep consequences fresh in peoples minds," Opposition, p. 7 (errors in original), is mere speculation that does not show a triable issue of fact. Warns does not show a genuine issue of material fact that BACK had a policy that was deliberately indifferent to a known or obvious consequence that counselors would sexually harass their clients.
Finally, even if one assumed that BACR's training program was inadequate, Warns fails to show the existence of a genuine issue of material fact that the inadequacy of the program caused the constitutional violation alleged. Warns fails to introduce evidence showing, or from which a reasonable jury could infer, that the sexual harassment he experienced would have been avoided had Vermazen been trained under a program that was not deficient in regards to avoidance of sexual relations with clientele. His own case is not adequate proof, because allowing liability based merely on the existence of Vermazen's sexual misconduct toward him would essentially result in the impermissible respondeat superior liability.
BACR identified the portions of the record which demonstrate the absence of a genuine issue of material fact as to the adequacy of the training program and as to the absence of a causal connection between any inadequacy in the training program and Warns' injury. Warns did not meet his burden to designate specific facts showing that there is a genuine issue for trial on these essential elements of his claim. Defendant BACR is entitled to judgment as a matter of law on Warns' claim.
CONCLUSION
For the foregoing reasons, defendant Bay Area Community Resources' motion for summary judgment is GRANTED. (Docket #52.) Judgment now will be entered in favor of all defendants and against plaintiff
Bay Area Community Resources' petition for writ of habeas corpus to obtain Warns' presence at trial is DISMISSED as moot; in light of the entry of judgment, no trial will be held. (Docket #77.)
The clerk shall close the file.
IT IS SO ORDERED.