Lolli v. County of Orange

• Decision Date: 21 November 2003
• Docket Number: No. 02-56309.,02-56309.
• Citation: 351 F.3d 410
• Parties: John Kenneth LOLLI, Plaintiff-Appellant, v. COUNTY OF ORANGE, a political subdivision of the State of California; Michael S. Carona, individually and as Sheriff of Orange County; John Rocky Hewitt, individually and in his official capacity (Assistant Sheriff); Toledo, individually and in his official capacity (Sheriff Sergeant) aka Doe 3; Meyer, individually and in his official capacity (Sheriff Sergeant) aka Doe 4; Walker, individually and in their official capacities (Sheriff Deputies) aka Doe 5-8; Baum, Deputy individually and in his official capacity aka Does 9-10; Finlay, Deputy individually and in his official capacity aka Does 5-8; Kent, Deputy individually and in his official capacity aka Does 5-8; Richards, Deputy individually and in his official capacity aka Does 5-8; Breaton, Deputy individually and in his official capacity aka Does 9-10, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

351 F.3d 410

John Kenneth LOLLI, Plaintiff-Appellant, v. COUNTY OF ORANGE, a political subdivision of the State of California; Michael S. Carona, individually and as Sheriff of Orange County; John Rocky Hewitt, individually and in his official capacity (Assistant Sheriff); Toledo, individually and in his official capacity (Sheriff Sergeant) aka Doe 3; Meyer, individually and in his official capacity (Sheriff Sergeant) aka Doe 4; Walker, individually and in their official capacities (Sheriff Deputies) aka Doe 5-8; Baum, Deputy individually and in his official capacity aka Does 9-10; Finlay, Deputy individually and in his official capacity aka Does 5-8; Kent, Deputy individually and in his official capacity aka Does 5-8; Richards, Deputy individually and in his official capacity aka Does 5-8; Breaton, Deputy individually and in his official capacity aka Does 9-10, Defendants-Appellees.

No. 02-56309.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 4, 2003.

Filed November 21, 2003.

Robert L. Bastian, Jr., and Marina R. Dini, Law Offices of Bastian & Dini, Los Angeles, California, for the plaintiff-appellant.

Albert P. Ballog, Jr., and Daniel R. Sullivan, Sullivan, Struck & Ballog, L.L.P. Santa Ana, California, for the defendants-appellees.

Appeal from the United States District Court for the Central District of California; Alicemarie H. Stotler, District Judge, Presiding. D.C. No. CV-00-00291-AHS.

Before Stephen REINHARDT, Diarmuid F. O'SCANNLAIN and Raymond C. FISHER, Circuit Judges.

Opinion by Judge FISHER; Partial Concurrence and Partial Dissent by Judge O'SCANNLAIN

OPINION

FISHER, Circuit Judge.

John Kenneth Lolli brought this 42 U.S.C. § 1983 case against Orange County and a number of the Orange County Sheriff's Department officers challenging his treatment in the Orange County Men's Jail in October 1999. He claims that the officers violated his federal constitutional rights and state law through the excessive force they used against him and their deliberate indifference to his serious medical needs related to his Type I diabetes. The district court granted summary judgment in favor of the County and the officers and dismissed the case. Lolli filed a motion for reconsideration, which the district court denied. Lolli now appeals, arguing that genuine issues of material fact prevent summary judgment. We agree with Lolli as to his claims against some of the individual officers and we therefore affirm in part, reverse in part and remand.

FACTUAL AND PROCEDURAL BACKGROUND

At approximately 6:30 P.M. on October 5, 1999, the night of Lolli's 34th birthday, an Orange County Sheriff's Department deputy stopped him for a bicycle infraction and then arrested him for an outstanding warrant on an unpaid parking ticket. Lolli told the arresting officer that he is diabetic and felt ill and that he needed to eat as soon as possible. After he was taken to the Orange County Men's Jail, he relayed that same information to the screening nurse, Nurse Salazar. Salazar tested his blood sugar, recorded his diabetic status on her chart and allegedly assured Lolli he would receive food promptly. Her records reflect that Lolli was not combative, verbally abusive or agitated at intake. Lolli was moved to a small cell, then taken for an x-ray and finally placed in a holding cell with about a dozen other men. He remained there without food or insulin — and was unable to communicate with any officers — until around midnight.

What transpired after Lolli had been in that holding cell for approximately four hours is the subject of much dispute. At his deposition, Lolli testified that he "in all respect" informed a deputy who entered the holding cell that he is diabetic and was not feeling well, and he asked the deputy to find out what happened to the snack Nurse Salazar had promised. Lolli claims that a deputy thereupon grabbed him and pulled him to the ground and then several deputies kicked him, punched him, hit him with batons or similar objects, twisted his arms and legs, poked his face, knuckled his ear and pepper sprayed him. This abuse continued, he testified, even after his hands were handcuffed behind his back. After Lolli was taken to a medical observation cell, deputies bent his spine and pounded his head on the ground. Lolli denies resisting or "do[ing] anything to anybody in there." Lolli also claims that his diabetes was not properly treated, and he was not given the appropriate insulin or food to regulate his blood sugar.

The officers' version of the story, unsurprisingly, is very different.¹ Several officers admit that they struck Lolli, grabbed one of his arms or legs or sprayed him with pepper spray, but they testified that Lolli was: (1) verbally abusive and disruptive; (2) unresponsive to orders; (3) combative; (4) struggling and resisting; (5) swinging one cuffed hand around; and (6) posing a danger to himself and the officers. They denied kicking Lolli or using batons on him, and they also denied knowing that Lolli was a diabetic or needed food or insulin.

After Lolli was released around 11 P.M. on October 6, his sister took him to Huntington Beach Hospital. There, medical personnel examined him and took x-rays. The hospital's records from that date show that Lolli had bruises, open wounds, lacerations, lumps on his head and wrists, a perforated ear drum and three fractured ribs. The hospital staff summoned the Huntington Beach Police Department. The Huntington Beach officers took a report but did no further investigation after calling the Orange County Sheriff's Department. Photographs taken by the Huntington Police Department show many of the injuries described in the hospital records. After his release date, Lolli returned to the hospital with problems allegedly stemming from the force the officers used against him.

On March 30, 2000, Lolli filed his complaint in federal court. After discovery, the County and the officers moved for summary judgment. Lolli opposed their motion, submitting evidence and pointing to disputed facts that he claimed prevented a grant of summary judgment against him. The district court, after a hearing, granted the motion on February 28, 2002. The order, as well as its statement of facts and conclusions of law, made no mention of Lolli's allegedly disputed facts or of his medical claim.² It awarded costs, "including reasonable attorneys' fees," to the County and the officers.

Rather than immediately appealing the grant of summary judgment, Lolli filed a motion for reconsideration. The district court denied this motion on July 8, 2002. Among other things, it stated that "[p]laintiff's claims, analyzed under the Fourth Amendment as a non-medical detention, cannot stand as against defendants' qualified immunity defense," although the officers had not mentioned qualified immunity in their summary judgment motion or in their opposition to the motion for reconsideration. On July 26, Lolli filed a notice of appeal listing only the July 8 order. We have jurisdiction pursuant to 28 U.S.C. § 1291.

STANDARD OF REVIEW

The denial of a motion for reconsideration is reviewed for an abuse of discretion. See Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 883 (9th Cir.2000). In contrast, we review a grant of summary judgment de novo. See Oliver v. Keller, 289 F.3d 623, 626 (9th Cir.2002). When considering a grant of summary judgment, "[v]iewing the evidence in the light most favorable to the nonmoving party, we must determine whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law." Id.

DISCUSSION

A. The Notice of Appeal

We review the district court's grant of summary judgment — not simply its denial of Lolli's motion for reconsideration — although Lolli did not list the order granting summary judgment in his timely notice of appeal. Ordinarily, Lolli's appeal of the February 28 summary judgment order would have been due by April 1, within 30 days of entry of judgment. Fed. R.App. Pro. 4; 26. Because Lolli filed a motion under Federal Rules of Civil Procedure 59(e) and 60(b) on March 11, this 30-day limit was tolled and began to run anew on July 10, the date the district court entered judgment on the motion for reconsideration. Fed. R.App. Pro. 4(a)(4)(iv), (vi). Lolli filed his notice of appeal on July 26, and it was therefore timely.³

Federal Rule of Appellate Procedure 3(c)(1)(B) provides that the notice of appeal must "designate the judgment, order, or part thereof being appealed." When, as here, a party seeks to argue the merits of an order that does not appear on the face of the notice of appeal, we generally consider two factors: (1) whether "the intent to appeal a specific judgment can be fairly inferred" and (2) whether "the appellee [was] prejudiced by the mistake." See Montes v. United States, 37 F.3d 1347, 1351 (9th Cir.1994) (internal quotation marks omitted). Both factors favor Lolli. Lolli's intent to appeal the summary judgment order can be inferred, as we frequently have done when a party appeals after its motion for reconsideration was denied. See, e.g., United States v. Belgarde, 300 F.3d 1177, 1180 (9th Cir.2002) (reviewing a dismissal of an indictment rather than denial of reconsideration where the notice of appeal did not "specify the order being appealed"); McCarthy v. Mayo, 827 F.2d 1310, 1313-14 (9th Cir. 1987) (reviewing a summary judgment order when the notice of appeal listed only the denial of motions under Rule 60(b) but that denial simply referred to the reasons given in the underlying order). Prejudice to the County and the officers, however, cannot. Lolli's full discussion of the summary judgment order in his opening appellate brief and the detailed response in the County and the officers' answering brief dispose of any claims that they were misled or harmed. See, e.g., id. at 1314 ("The defendants cannot claim prejudice because they also fully...