On October 17, 2024, the U.S. Court of Appeals for the Ninth Circuit ruled that 26 cell checks performed within 13 hours by six Los Angeles County jailers who nevertheless failed to assess the condition of a detainee later found dead were sufficient to create a genuine issue of fact that may support a claim against the County for an unconstitutional policy or custom under Monell v. New York City Dep’t Soc. Servs., 436 U.S. 658 (1978).

After he was incarcerated at the County’s Twin Towers Correctional Facility in Los Angeles for attempted bank robbery in March 2018, Lewis Nyarecha, 22, “received a psychiatric assessment and described hearing voices in his sleep,” as the federal court for the Central District of California later recalled. That got him a prescription for an antipsychotic medication and placement in the moderate observation housing (MOH) unit. There, policy of the County Sheriff’s Department (LASD) required safety checks of cells every 30 minutes. 

But after Nyarecha’s dead body was found in his cell by a detainee trustee on June 6, 2018, it turned out that none of the guards who performed those safety checks over the previous 13 hours bothered to assess his condition.

On behalf of his son’s Estate, Peter Woods Nyarecha filed suit in the district court under 42 U.S.C. § 1983 against both the County and the LASD, alleging that Nyarecha was denied his constitutional right to safe confinement by an unconstitutional policy or custom. 

The district court granted summary judgment to the Defendants, characterizing the 13-hour period with 26 cell checks as a “single incident” that was therefore insufficient to show a policy, custom, or pattern. Plaintiff appealed.

The Ninth Circuit began by observing that Monell liability could not be imposed on the Defendants unless Plaintiff proved that “(1) [Nyarecha] had a constitutional right of which he was deprived; (2) the municipality had a policy [or custom]; (3) the policy [or custom] amounts to deliberate indifference to his constitutional right; and (4) the policy [or custom] is the moving force behind the constitutional violation,” as laid out in Gordon v. Cty. of Orange, 6 F.4th 961 (9th Cir. 2021). 

One way to establish such a policy or custom, the Court continued, “is by showing that the alleged constitutional violation was done in accordance with the governmental body’s ‘longstanding practice or custom,’” again citing Gordon. But a “series of constitutional violations committed by multiple officers during the course of a single day is sufficient to create an issue of material fact as to whether an unconstitutional policy or custom exists,” as held in Menotti v. City of Seattle, 409 F.3d 1113 (9th Cir. 2005).

The Court allowed that “[p]roof of a single incident of unconstitutional activity is not sufficient,” citing a ruling by the Supreme Court of the U.S. (SCOTUS) in City of Oklahoma City v. Tuttle, 471 U.S. 808 (1985). The Ninth Circuit said therefore that “isolated or sporadic incidents” cannot form the basis for liability, which instead “must be founded upon practices of sufficient duration, frequency and consistency that the conduct has become a traditional method of carrying out policy,” quoting Sabra v. Maricopa Cnty. Cmty. Coll. Dist., 44 F.4th 867 (9th Cir. 2022).

In the instant case, the Court noted that it was undisputed that Nyarecha had a constitutional right to adequate safety checks under Gordon, a case in which there were only two deficient safety checks at issue, not the 26 attributed to the LASD guards. Each of those 26 covered a seven-cell area, and each was performed by at least six guards working two different shifts; yet each check was constitutionally deficient. That is, each guard exhibited the same pattern of completing the checks in under two minutes, without breaking stride, without pausing to look inside the cells, and without attempting to elicit any response from any detainee inside a cell. Since each guard performed these checks independently, the Court said that was evidence that this behavior was the norm or custom of performing safety checks in a manner consistent with LASD policy. Accordingly, the district court’s ruling was reversed and the case remanded. See: Nyarecha v. Cnty. of Los Angeles, 2024 U.S. App. LEXIS 26252 (9th Cir. 2024).

A request for rehearing before the full Ninth Circuit en banc was denied on December 5, 2024, and a request for SCOTUS to issue a writ of certiorari to hear an appeal was also denied on April 5, 2025. See: Nyarecha v. Cnty. of Los Angeles, 2024 U.S. App. LEXIS 30746 (9th Cir. 2024); and Los Angeles Cnty. v. Nyarecha, 2025 U.S. LEXIS 1637 (U.S.). The case remains pending at the district court, and PLN will update developments as they are available. Nyarecha’s Estate is represented by Long Beach attorney Arnaldo Casillas. See: Nyarecha v. Cnty. of Los Angeles, USDC (C.D. Cal.), Case No. 2:20-cv-04474.  

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