Metropolitan News-Enterprise


Wednesday, April 15, 2020


Page 3


Ninth Circuit:

S.D. Deputy Sheriffs Unable to Disprove Ex-Inmate’s Account Can’t Avoid Trial


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals has affirmed the denial of summary judgment to two San Diego Sheriff’s Department deputies disclaiming responsibility for the death of a jail inmate who committed suicide by hanging himself in his cell, holding that they did not overcome evidence from  a fellow inmate that there had been a clearly visible rope in the cell dangling from a light fixture.

Suing in the U.S. District Court for the Southern District of California, individually on behalf of others, was Chassidy NeSmith, widow of Kristopher Scott NeSmith, a man who had been arrested for the alleged stabbing of a man, spousal abuse, and resisting arrest. He was known to be suicidal, had been prescribed psychiatric medications which he was not taking, and, according to testimony, was depressed following court appearances and had not eaten for six or seven days.

A year after the suicide, which occurred on March 1, 2014, a man who had been an inmate in the facility claimed that on the night before the incident or the night before that, a deputy entered NeSmith’s cell and, alluding to the dangling rope, instructed NeSmith, “Take that thing down,” inquiring:

“Why [sic] are you trying to do, kill yourself?”

Members of the Ninth Circuit panel—Circuit Judges Mary H. Murguia and Eric D. Miller, joined by District Court Judge George Caram Steeh III of the Eastern District of Michigan, sitting by designation—on Tuesday affirmed the denial of summary judgment by District Court Judge Janis L. Sammartino.

To the extent Chassidy NeSmith was contesting Sammartino’s resolution of factual disputes, the panel said, it lacked jurisdiction, and dismissed the appeal, in part. Addressing the issue of whether the right that was asserted on the part of the decedent was “clearly established”—which, if it was, would preclude conferring qualified immunity—the opinion declares that it was.

The opinion says:

“Here, viewing the facts in the light most favorable to NeSmith, the Deputies observed a rope hanging from NeSmith’s light on the night before his suicide. Under those circumstances, the rope presented a clear warning that NeSmith presented an imminent suicide risk….Indeed, the Deputies declared that had they seen the rope—and viewing the evidence in the light most favorable to NeSmith. we must conclude that they did—they would have removed it and sought medical attention.”

The case is NeSmith v. Olsen, 19-55457.


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