The County of Los Angeles argues based on County of Los Angeles v. Superior Court, supra, 68 Cal.App.4th 1166 ("Peters "), [FN2] which held that "in setting policies concerning release of persons from the Los Angeles County Jail, the Los Angeles County Sheriff acts as a state officer performing state law enforcement duties, and not as a policymaker on behalf of the County of Los Angeles." (Id. at p. 1178.) In Peters, the plaintiff posted bail to be released on June 18, 1997, but the Los Angeles County Sheriff detained plaintiff for 10 more days in purported reliance on a warrant the sheriff knew or reasonably should have known did not apply to plaintiff. (Id. at pp. 1168-1169.) The sheriff's function involved determining whether to release a person who might be subject to arrest on an outstanding warrant, which Peters called a law enforcement function. (Id. at p. 1177, citing Gov.Code, § § 26601, 26602 and Pen.Code, § 816.) Venegas v. County of Los Angeles, supra, 32 Cal.4th 820 similarly held that a sheriff, when investigating possible criminal activity, including detaining suspects, searching their home and vehicle, and seizing documents, performs law enforcement activities and therefore acts on behalf of the state, making the county immune from section 1983 liability. (Id. at pp. 826, 839.)

FN2. The real party in interest in County of Los Angeles v. Superior Court, supra, 68 Cal.App.4th 1166 was Rebecca Peters.

*16 By contrast, Reynolds argues that the Los Angeles County Sheriff did not act as a policy maker for the State of California in determining when to release Reynolds, and therefore the County of Los Angeles is not immune from section 1983 liability.

Reynolds argues based on Streit v. County of Los Angeles, supra, 236 F.3d 552, which held that the Los Angeles County Sheriff, when implementing its policy of conducting prisoner release records checks, acts for the county in its capacity as administrator of the Los Angeles County Jails. Therefore the County of Los Angeles (and the Los Angeles County Sheriff's Department) were subject to section 1983 liability. (Id. at pp. 555-556.) In Streit, plaintiffs alleged they were detained in county jails after all legal justification for their seizure and detention ended while the Sheriff's Department ran a check of a computerized law enforcement database to confirm that no other law enforcement agency wanted the prisoner, and further alleged that the Sheriff's Department ran this computerized check only after all "wants and holds" arriving on the day a prisoner was scheduled for release were entered into the computer database, causing the prisoners' incarceration to extend beyond their release dates. (Id. at p. 556.)

Streit distinguished Peters as involving the Los Angeles County Sheriff acting on a facially valid warrant in detaining prisoners, which it characterized as "a law enforcement function with which the [Los Angeles County Sheriff's Department] is tasked under [Government Code section 12560]." (Streit v. County of Los Angeles, supra, 236 F.3d at p. 564.) In Streit, by contrast, the sheriff's function involved an "administrative search for outstanding warrants, wants, or holds upon which it would be required to act, if they existed." (Ibid.) Streit concluded: "Searching for wants and holds that may or may not have been issued for persons whom the state has no legal right to detain is an administrative function of jail operations for which the [Los Angeles County Sheriff's Department] answers to the County." (Ibid., citing Gov.Code, § § 25303, 26605.)

Cortez v. County of Los Angeles (9th Cir.2002) 294 F.3d 1186 similarly cited the Los Angeles County Sheriff's constitutional, statutory, and administrative authority to manage county jails under California law. (Id. at p. 1190.) Cortez held that when the county sheriff assigned a prisoner pursuant to the sheriff's policy of segregating gang members from other inmates, the sheriff acted on behalf of the county and therefore was subject to section 1983 liability for those actions. (Ibid.)

This appeal, in part, involves the sheriff's policy of assignment of prisoners in his custody, which Cortez defined as action taken on behalf of the county, not the state. This appeal also involves the detention of a person as to whom the court had dismissed charges and had ordered released, and thus resembles Streit. The facts show that the Los Angeles County Sheriff's personnel continued to detain Reynolds so as to determine whether he was entitled to be released, which involved determining whether an outstanding warrant existed against Reynolds in another case. Under Cortez and Streit, we conclude that the County of Los Angeles is subject to section 1983 liability.

4. The County of Los Angeles Has Not Shown Instructional Error

*17 The County of Los Angeles claims that the trial court erroneously instructed the jury on the wrong constitutional right, and erroneously rejected a jury instruction stating that deference should be given to a jail administrator's judgments regarding the institution's operation.

a. Because the County Did Not Request a Correct, Complete Instruction That Reflected Its Theory of the Litigation, No Error Occurred in Failing to Deliver a Fourteenth Amendment "Arbitrariness" Instruction

The County of Los Angeles claims the trial court should have instructed that the Fourteenth Amendment governed Reynolds's overdetention claim and that the County of Los Angeles only could have been held liable if its inmate release policy was arbitrary.

As regards the $25,000 damage award, we have rejected the claim that the Fourth Amendment did not govern this case. The County of Los Angeles concedes that it did not request an instruction embodying the Fourteenth Amendment "arbitrariness" standard. It claims the trial court had a sua sponte duty to instruct on this standard. Although all instructions are deemed excepted to (Code Civ. Proc., § 647), " '[i]n a civil case, each of the parties must propose complete and comprehensive instructions in accordance with his theory of the litigation; if the parties do not do so, the court has no duty to instruct on its own motion.' " (Agarwal v. Johnson (1979) 25 Cal.3d 932, 950-591, overruled on other grounds, White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 575.) "Neither a trial court nor a reviewing court in a civil action is obligated to seek out theories plaintiff might have advanced, or to articulate for him that which he has left unspoken." (Finn v. G.D. Searle & Co. (1984) 35 Cal.3d 691, 701-702.) We reject the claim that instructional error occurred because the trial court did not deliver a Fourteenth Amendment "arbitrariness" instruction.

b. The Trial Court's Rejection of a "Deference to Prison Administrators" Proposed Instruction Was Not Error

The County of Los Angeles also claims that the trial court erroneously rejected an instruction which the County of Los Angeles did propose. This proposed instruction, based on Bell v. Wolfish (1979) 441 U.S. 520, stated:

"Governmental action does not have to be the only alternative or even the best alternative for it to be reasonable. The test for constitutionality turns on whether the articulated purpose for the restriction is rationally related to a legitimate governmental interest and whether it is reasonably tailored to achieve the stated goal. Prison administrators should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security. Such considerations are peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, their expert judgment should be deferred to."

*18 The County of Los Angeles argues briefly that even if the Fourth Amendment reasonableness standard applied to Reynolds's section 1983 action, this instruction should have been delivered as a proper statement of the law which was relevant to the facts. Bell, however, reviewed constitutional challenges to prison conditions and practices according to whether, under the Due Process Clause, prison conditions amounted to punishment of a pretrial detainee. (Bell v.. Wolfish, supra, 441 U.S. at p. 535.) The prison conditions and practices included "double-bunking" of inmates, a regulation permitting inmates to receive books and magazines only if mailed directly from the publisher or book club, a prohibition against receiving packages of food or personal property from outside the facility, unannounced searches of inmate living areas by prison staff, required exposure of body cavities for visual inspection after each contact visit an inmate had with a person from outside the institution. None of these regulations and conditions were at issue in Reynolds's lawsuit. The Bell decision has relevance to the analysis of whether summary judgment was correctly granted as to Reynolds's Eighth Amendment cause of action, post. Bell, however, did not involve whether the length of time between the court's dismissal of charges and release order and the prisoner's ultimate release was reasonable. Bell contains neither facts nor issues in common with the Fourth Amendment overdetention at issue in this appeal. The use of the proposed instruction would therefore have been inappropriate. (Drake v. Dean (1993) 15 Cal .App.4th 915, 924.) We find no error in the trial court's rejection of the proposed instruction.

II. Reynolds's Appeal from the Grant of Summary Judgment on His Eighth Amendment Cause of Action

Reynolds appeals from the grant of summary judgment in defendant's favor on his cause of action for violation of his fourth cause of action under section 1983 for violation of his Eighth Amendment constitutional right against cruel and unusual punishment.

STANDARD OF REVIEW
"A defendant's motion for summary judgment should be granted if no triable issue exists as to any material fact and the defendant is entitled to a judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) The burden of persuasion remains with the party moving for summary judgment. [Citation.] When the defendant moves for summary judgment, in those circumstances in which the plaintiff would have the burden of proof by a preponderance of the evidence, the defendant must present evidence that would preclude a reasonable trier of fact from finding that it was more likely than not that the material fact was true [citation], or the defendant must establish that an element of the claim cannot be established, by presenting evidence that the plaintiff 'does not possess and cannot reasonably obtain, needed evidence.' [Citation.] We review the record and the determination of the trial court de novo." (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1002-1003.)

*19 A defendant moving for summary judgment bears the burden of showing that a cause of action has no merit because plaintiff cannot establish an element of the claim or because defendant has a complete defense. The burden then shifts to the plaintiff opposing the summary judgment motion to establish that a triable issue of fact exists as to these issues. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.)

FACTS
Allegations of the Complaint: Reynolds's cause of action for violation of his Eighth Amendment right against cruel and unusual punishment alleged that Los Angeles County central jail personnel placed him in a maximum security cell because he was charged with Penal Code section 1551, a crime Los Angeles County Sheriff's personnel categorize with murder, rape, kidnapping, robbery, and other crimes requiring a high security classification. This cause of action alleged that defendant's classification policy recklessly, arbitrarily, and with deliberate indifference exposed Reynolds to a substantial risk of serious damage to his health and safety while he was in defendant's custody, and that the policy was the moving force between other inmates' assault and rape of Reynolds in violation of his Eighth Amendment rights.

The county moved for summary judgment on the ground that classifying and housing Reynolds in a high security module did not violate his Eight Amendment rights.

Undisputed Facts in the Summary Judgment Motion: On March 8, 1999, Reynolds was transported to the Los Angeles County central jail and processed by defendants pursuant to their official, policy, custom, and practice. Inmates in the central jail range from pre-trial detainees to those serving lengthy county jail sentences and face charges ranging from petty theft to murder. Some county jail inmates have never before been in jail; others are state prison veterans.

To classify inmates as low, medium, or high security prisoners, the classification system assigns each of the following criterion a point value: charge pending, prior convictions, bail amount, age, and previous escape attempts. Charges such as murder, kidnaping, mayhem, and rape result in a "high security" classification. Because Reynolds was charged with violating Penal Code section 1551 .1, a crime the sheriffs categorize with murder, rape, kidnaping, and robbery, he was placed in a maximum security cell. The classification policy does not attempt to discover the basis for the Penal Code section 1551.1 charge.

The "Wants and Detainer's" Department processes additional holds on inmates in custody. When this department receives notification that another state has an outstanding warrant on and desires extradition of someone in county custody, the department places a "no bail hold" on that person and code that person Penal Code section 1551.1. Generally information received from another state does not contain information on the underlying charge causing the state to request a hold for extradition.

*20 The security classification system seeks to categorize individuals by the level of security required according to the severity or seriousness of the crime they are charged with and according to their previous criminal history. Persons in custody receiving a "high" security classification require closer supervision and greater security measures than lower classifications. "High" security inmates are placed in the most secure areas in cells containing fewer inmates than lower security classifications.

Trial Court's Grant of Summary Judgment: On September 17, 2001, the trial court granted summary judgment after finding that Reynolds had presented no evidence that he had a constitutional right to be classified in a certain manner or to be housed in a certain location, and presented no evidence that defendants acted with deliberate indifference in classifying him as a high security risk.

As stated, Reynolds filed a cross-appeal from the September 17, 2001, order granting summary judgment as to his Eighth Amendment cause of action.

ISSUES
The cross-appeal claims that:

1. Reynolds was deprived of his constitutional right to safety;

2. The constitutional deprivations are due to the sheriff's policy;

3. The sheriff's policy amounted to deliberate indifference to Reynolds's constitutional rights; and

4. The policy was the moving force behind the constitutional violation.

DISCUSSION
As a preliminary matter, it is important to note that the cross-appeal deals solely with the classification of Reynolds when he was validly in custody, which caused Reynolds to be assigned to his cell in the county central jail. Reynolds also acknowledges that the Eighth Amendment applies only to convicted prisoners. As has long been recognized, the due process clause of the Fourteenth Amendment is the pertinent constitutional guarantee applicable to a claim that the state has imposed punishment on a pretrial detainee lawfully committed to pretrial detention but not yet found guilty of any crime. (Bell v. Wolfish, supra, 441 U.S. at pp. 535-536, fn. 16.) "Cases determining that conditions or practices violate the Eighth Amendment remain useful, however, because a fortiori such conditions or practices amount to punishment when applied to detainees." (Lock v. Jenkins (7th Cir.1981) 641 F.2d 488, 491, fn. 7.)

Reynolds claims that the classification system deprived him of his constitutional right to safety. This right refers to the Fourteenth Amendment due process "liberty interest in personal security." (Davidson v. Cannon, supra, 474 U.S. at p. 346.) "[I]f a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to 'punishment.' Conversely, if a restriction or condition is not reasonably related to a legitimate goal--if it is arbitrary or purposeless--a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees." (Bell v. Wolfish, supra, 441 U.S. at p. 539, fn. omitted; Turner v. Safley (1987) 482 U.S. 78, 89: "[W]hen a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.")

*21 The interest in ensuring a detainee's presence at trial, and the interest in managing a prison facility by taking steps to maintain security and order at the institution, are both legitimate governmental interests. (Bell v. Wolfish, supra, 441 U.S. at p. 540.) "Restraints that are reasonably related to the institution's interest in maintaining jail security do not, without more, constitute unconstitutional punishment.... [T]he effective management of the detention facility once the individual is confined is a valid objective that may justify imposition of conditions and restrictions of pretrial detention and dispel any inference that such restrictions are intended as punishment." (Ibid.)

"In determining whether restrictions or conditions are reasonably related to the Government's interest in maintaining security and order and operating the institution in a manageable fashion, courts must heed our warning that '[s]uch considerations are peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters.' [Citations.]" (Bell v. Wolfish, supra, 441 U.S. at pp. 540-541, fn. 23.)

With regard to the Los Angeles County Sheriff's classification of Reynolds as "high security" and placement of Reynolds in a maximum security cell, Reynolds has provided no evidence that this classification system was not reasonably related to the legitimate government objective of managing the prison to maintain security.

Moreover, Reynolds has not provided evidence that the classification policy reflects "deliberate indifference" to a substantial risk of serious harm. (Farmer v. Brennan (1994) 511 U.S. 825, 835.) "[A] prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." (Id at p. 837.) In the summary judgment proceeding, Reynolds produced no evidence that a Los Angeles County Sheriff's prison official was "deliberately indifferent" in applying the classification system to Reynolds when placing him in county jail custody. Reynolds did not show that a substantial risk of inmate attacks was longstanding, pervasive, well-documented, or expressly noted by Los Angeles County Sheriff prison officials in the past, and that a defendant-official had been exposed to information concerning the risk. Such evidence could create a triable issue of fact as to whether the defendant-official had the actual knowledge of the substantial risk of serious harm and acted or failed to act despite his knowledge. (Id. at p. 842.) Reynolds relied on a declaration by an expert witness, Clifford Powell, which provided no evidence concerning a substantial risk of inmate attacks in the Los Angeles County jail system or the Los Angeles County Sheriff's knowledge of a substantial risk of inmate attacks.

*22 Reynolds failed to create a triable issue of fact concerning "deliberate indifference" to a substantial risk of serious harm. We affirm the grant of summary judgment.

III. The Appeal From the Attorney Fee Award

FACTS
After judgment was entered leaving the amount of attorney fees and costs undetermined, Reynolds's counsel filed a cost memorandum. The County of Los Angeles filed a motion to tax costs. Reynolds's counsel also filed a motion seeking $279,025 in attorney fees pursuant to Code of Civil Procedure section 1021.5 and 42 United States Code section 1988.

On November 8, 2002, the trial court filed an amended judgment, which awarded Reynolds $227,550.00 attorney fees and $11,821.22 costs.

On November 27, 2002, the County of Los Angeles filed a notice of appeal from the amended judgment entered on November 8, 2002.

ISSUES
The County of Los Angeles argues that if, in the underlying appeal, the judgment is reversed in its entirety, the order for attorney fees and costs must also be reversed, and if the judgment is reversed in part, the order for attorney fees and costs should be reversed and remanded to the trial court for a downward adjustment.

DISCUSSION
Title 42 of the United States Code section 1988(b) states that in an action to enforce a provision of section 1983, "the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs[.]"

To qualify for attorney fees under section 1988, a plaintiff must be a "prevailing party." (Farrar v. Hobby (1992) 506 U.S. 103, 110.) "[T]o qualify as a prevailing party, a civil rights plaintiff must obtain at least some relief on the merits of his claim." (Id. at p. 111.) This relief can take the form of an enforceable judgment against the defendant against whom fees are sought. (Ibid.)

"[T]he extent of a plaintiff's success is a crucial factor in determining the proper amount of an award of attorney's fees under 42 U.S.C. § 1988. Where the plaintiff has failed to prevail on a claim that is distinct in all respects from his successful claims, the hours spent on the unsuccessful claim should be excluded in considering the amount of a reasonable fee. Where a lawsuit consists of related claims, a plaintiff who has won substantial relief should not have his attorney's fee reduced simply because the [trial court] did not adopt each contention raised. But where the plaintiff achieved only limited success, the [trial court] should award only that amount of fees that is reasonable in relation to the results obtained." (Hensley v. Eckerhart (1983) 461 U.S. 424, 440.)

The reversal of the $1 million jury award means that the matter must be remanded to the trial court to recalculate its determination of the attorney fee award.

DISPOSITION
The jury's award of $1 million to Reynolds is reversed. In other respects the judgment is affirmed. The order awarding attorney fees and costs to Reynolds is reversed and that matter is remanded to the trial court for redetermination of the attorney fee award. The parties are ordered to bear their own costs on appeal.

We concur: CROSKEY, Acting P.J., and ALDRICH, J.

Not Reported in Cal.Rptr.3d, 2004 WL 2538373 (Cal.App. 2 Dist.) Not Officially Published, (Cal. Rules of Court, Rules 976, 977)

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