MARY GORDON, successor-in-interest for decedent, Matthew Shawn Gordon, individually, Plaintiff-Appellant, v. COUNTY OF ORANGE; ORANGE COUNTY SHERIFF‘S DEPARTMENT; SANDRA HUTCHENS, Orange County Sheriff - Coroner; ORANGE COUNTY CENTRAL MEN‘S JAIL; ORANGE COUNTY HEALTH CARE AGENCY; DOES, 5 through 10, inclusive; ROBERT DENNEY; BRIAN TUNQUE; BRIANNE GARCIA; DEBRA FINLEY, Defendants-Appellees.
No. 19-56032
United States Court of Appeals for the Ninth Circuit
July 26, 2021
D.C. No. 8:14-cv-01050-CJC-DFM. Appeal from the United States District Court for the Central District of California, Cormac J. Carney, District Judge, Presiding. Argued and Submitted April 30, 2021, San Francisco, California.
Opinion by Judge Gonzalez Rogers
SUMMARY**
Civil Rights
The panel affirmed in part and reversed in part the district court‘s summary judgment in favor of jail officials in an action brought pursuant to
In Gordon‘s previous appeal, this Court held that inadequate medical care claims brought by pretrial detainees require a showing of objective, not subjective, deliberate indifference. See Gordon v. County of Orange, 888 F.3d 1118, 1124-25 (9th Cir. 2018). Following remand, the district court allowed additional expert discovery and ultimately granted summary judgment for the individual defendants on the basis of qualified immunity and for the entity defendant on the ground that the plaintiff could not
The panel affirmed as to plaintiff‘s Monell claim, holding that the record lacked evidence of any other event involving similar conduct or constitutional violations and plaintiff‘s reference to subsequent changes to operating procedures was insufficient to demonstrate the existence of a custom. The panel also affirmed the district court‘s grant of summary judgment to individual defendants Nurse Garcia and Sergeant Tunque because plaintiff failed to articulate any basis for an appeal.
With respect to defendants Nurse Finley and Deputy Robert Denney, the panel held that the district court committed legal error by using a subjective standard in analyzing the clearly established prong of the qualified immunity test. Further, as to Nurse Finley, summary judgment was not proper because the available law at the time of the incident clearly established Matthew Gordon‘s constitutional rights to proper medical screening to ensure medically appropriate protocol was initiated. Given that the County instituted two screening forms to ensure the initiation of a medically appropriate protocol, the panel remanded the case for a factual analysis of the remaining prong of the qualified immunity test.
As to Deputy Denney, the panel stated that it was not aware of any precedent expressly recognizing a detainee‘s right to direct-view safety checks sufficient to determine whether the detainee‘s presentation indicated the need for medical treatment. Accordingly, Deputy Denney was entitled to qualified immunity because the due process right to an adequate safety check for pretrial detainees was not clearly established at the time of the incident. The panel
COUNSEL
David A. Schlesinger (argued), Jacobs & Schlesinger LLP, San Diego, California; Cameron Sehat, The Sehat Law Firm PLC, Irvine, California; for Plaintiff-Appellant.
S. Frank Harrell (argued) and Jesse K. Cox, Lynberg & Watkins PC, Orange, California, for Defendants-Appellees.
OPINION
GONZALEZ ROGERS, District Judge:
This is the second appeal arising from the death of Matthew Gordon within 30 hours after he was admitted as a pretrial detainee in the Orange County Central Men‘s Jail. His mother, plaintiff Mary Gordon, alleges Section 1983 claims of inadequate medical care under the due process clause of the Fourteenth Amendment. In a previous appeal, this Court held that inadequate medical care claims brought by pretrial detainees require a showing of objective, not subjective, deliberate indifference. See Gordon v. County of Orange, 888 F.3d 1118, 1124-25 (9th Cir. 2018) (”Gordon I“). Following remand, the district court allowed additional expert discovery and ultimately granted summary judgment for the individual defendants on the basis of qualified
Based upon a de novo review, and for the reasons set forth below, we affirm as to plaintiff‘s Monell claim and individual defendants Deputy Robert Denney, Nurse Brianna Garcia, and Sergeant Brian Tunque.1 However, we reverse and remand as to individual defendant Nurse Debbie Finley.
With respect to Nurse Finley and Deputy Denney, we conclude that the district court committed legal error by using a subjective standard in analyzing the clearly established prong of the qualified immunity test. Further, as to Nurse Finley, summary judgment was not proper because the available law at the time of the incident clearly established Gordon‘s constitutional rights to proper medical screening to ensure the medically appropriate protocol was initiated. However, as to Deputy Denney, although we now hold that Gordon had a constitutional right to direct-view safety checks, that right was not clearly established at the time of the incident.
On September 8, 2013, Gordon was arrested by the Placentia Police Department on heroin-related charges and booked into the Orange County Central Men‘s Jail. During his intake at approximately 6:47 p.m. that day, Gordon informed defendant Debbie Finley, a registered nurse, of his 3-grams-a-day heroin habit.
At the time, two detoxification protocols existed for purposes of assessing inmates suffering from substance withdrawal: (1) the Clinical Institute Withdrawal Assessment for Alcohol (“CIWA“), and (2) the Clinical Opiate Withdrawal Scale (“COWS“). Despite Gordon reporting his heroin use, jail medical staff never utilized the COWS protocol. Instead, non-party Dr. Thomas Le, a consulting physician, ordered that Gordon be evaluated under CIWA. Indeed, although the form that Dr. Le completed was titled “Opiate WD [Withdrawal] Orders,” it was amended to direct an alcohol withdrawal protocol. Specifically, the form contained a section titled “Nursing Detox Assessments.” Under that section, a checkbox denoted as “COWS and Vital Signs on admission and daily x 5” was crossed out, and “CIWA x 4 days” was handwritten instead. In other words, Gordon was to receive the ordered alcohol protocol for four days. In addition, Dr. Le ordered that Gordon be placed in regular housing rather than medical unit housing and prescribed Tylenol for pain, Zofran for nausea, and Atarax for anxiety.
After remand, Dr. Le submitted a declaration attesting that the CIWA protocol was appropriate for a poly-drug abuser such as Gordon. Conversely, the plaintiff‘s nursing expert opined that the COWS form would have measured symptoms specific to opiate withdrawal and triggered a need to house Gordon in the medical observation unit where
After his intake assessment, Gordon began the “loop” phase of the booking process during which time he waited nearly ten hours to enter the general population. During this period, another inmate had observed Gordon vomiting and dry heaving for 45 minutes. Nurse Finley testified that she did not assess Gordon during this timeframe.
Gordon exited the loop at approximately 8:30 a.m. the next day, September 9, when he was transferred to Tank 11 in Module C of the jail. There, he presented his identification card which stated: “Medical Attention Required.”2 Gordon was administered his detoxification medications three times over the course of his first day in Module C. However, no CIWA form or other evaluation of Gordon occurred that day, despite the ordered daily CIWA assessment. Defendant Brianna Garcia, a licensed vocational nurse, completed Gordon‘s last pill pass at approximately 8:30 p.m. that evening.
Meanwhile, deputies were responsible for conducting safety checks of the inmates in Module C at least every 60 minutes. Based on the safety check log, at approximately 6:47 p.m., defendant Deputy Robert Denney and another deputy conducted a check that included a physical count of
According to the plaintiff, the two safety checks conducted by Deputy Denney at 8:31 p.m. and 9:29 p.m. did not comply with applicable law. Specifically, Section 1027 of Title 15 of the California Code of Regulations, in effect at the time, required that “[a] sufficient number of personnel shall be employed in each local detention facility to conduct at least hourly safety checks of inmates through direct visual observation of all inmates.”
Deputy Denney testified that he was aware that Gordon required medical attention based on the module identification card, though he did not know his specific ailment. Deputy Denney conducted his safety check of Gordon from a corridor that was approximately six feet elevated from the tank floor and 12 to 15 feet away from the foot of Gordon‘s bunk. Deputy Denney admitted that, from his vantage point, he was unable to ascertain whether
At approximately 10:45 p.m. that evening, deputies heard inmates from Tanks 11 and 12 yelling “man down.” Deputies summoned jail medical staff immediately, and they responded within minutes. Deputy Denney testified that upon his arrival on the scene, he observed that Gordon‘s “face was blue, he was unresponsive, and his skin was cold to the touch.” Paramedics arrived at approximately 11:00 p.m. and transported Gordon to a local hospital where he was pronounced dead. The record reflects that defendant Brian Tunque was the supervising Sergeant on the night of the incident but was apparently not otherwise involved in these events.
Shortly thereafter, in October 2013, a new policy issued referencing the use of COWS that required jail medical staff to screen “inmates who may be at risk for developing drug or alcohol related problems.” Then, at some point between late 2014 and early 2015, policy changed to require deputies to conduct safety checks from an area immediately adjacent to the module for a more direct visual observation of the inmates.
PROCEDURAL HISTORY AND STANDARD OF REVIEW
After Gordon I, the case was remanded, and the district court permitted time for additional expert discovery. Thereafter, the individual defendants and the County renewed their separate motions for summary judgment. The district court granted summary judgment both for the individual defendants on grounds of qualified immunity and for the County for failure to show a custom or practice
We review a district court‘s decision to grant summary judgment de novo. Bravo v. City of Santa Maria, 665 F.3d 1076, 1083 (9th Cir. 2011) (citation omitted). “Viewing the evidence and drawing all inferences in the light most favorable to the non-moving party, we must determine whether any genuine issues of material fact remain and whether the district court correctly applied the relevant substantive law.” Id.
DISCUSSION
I. Qualified Immunity
A. Legal Framework for the Two-Prong Approach
In evaluating a grant of qualified immunity, a court considers whether (1) the state actor‘s conduct violated a constitutional right and (2) the right was clearly established at the time of the alleged misconduct. See Saucier v. Katz, 533 U.S. 194, 200-01 (2001), overruled in part by Pearson v. Callahan, 555 U.S. 223 (2009). “While the constitutional violation prong concerns the reasonableness of the officer‘s mistake of fact, the clearly established prong concerns the reasonableness of the officer‘s mistake of law.” Torres v. City of Madera, 648 F.3d 1119, 1127 (9th Cir. 2011) (emphasis in original). Either question may be addressed first, and if the answer to either is “no,” then the state actor cannot be held liable for damages. See Pearson, 555 U.S. at 236.
Whether a constitutional right is clearly established is purely a question of law for the court to decide. See Elder v. Holloway, 510 U.S. 510, 511 (1994) (“Whether a federal
Here, the district court erred in analyzing the clearly established prong by incorporating a subjective standard. “The [individual defendant‘s] actual subjective appreciation of the risk is not an element of the established-law inquiry.” Sandoval, 985 F.3d at 678; see also id. at 671-72 (rejecting approach of “apply[ing] all elements of an inadequate medical care claim” in determining whether qualified immunity exists); Horton by Horton v. City of Santa Maria, 915 F.3d 592, 601 (9th Cir. 2019) (“[W]hether or not Officer Brice was in fact deliberately indifferent to a substantial risk that Horton would attempt suicide in the time before he was checked, there was no case law at the time of the incident clearly establishing that a reasonable officer should have perceived the substantial risk.“). We now conduct the analysis de novo.
1. Legal Framework for This Prong
Qualified immunity “protects ‘all but the plainly incompetent or those who knowingly violate the law.‘” White v. Pauly, 137 S. Ct. 548, 551 (2017) (quoting Mullenix v. Luna, 577 U.S. 7, 12 (2015)); see Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per curiam) (qualified immunity shields reasonable, even if constitutionally deficient, misapprehensions of the law). For a constitutional right to be clearly established, a court must define the right at issue with “specificity” and “‘not . . . at a high level of generality.‘” City of Escondido v. Emmons, 139 S. Ct. 500, 503 (2019) (per curiam) (quoting Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (per curiam)).
“[T]he right allegedly violated must be defined at the appropriate level of specificity before a court can determine if it was clearly established.” Cousins v. Lockyer, 568 F.3d 1063, 1070 (9th Cir. 2009) (quoting Wilson v. Layne, 526 U.S. 603, 615 (1999)) (emphasis supplied). “Our goal is to define the contours of the right allegedly violated in a way that expresses what is really being litigated.” LSO, Ltd. v. Stroh, 205 F.3d 1146, 1158 (9th Cir. 2000). The right should be defined in a way that is neither “too general” nor “too particularized.” Id. Qualified immunity is not meant to be analyzed in terms of a “general constitutional guarantee,” but rather the application of general constitutional principles “in a particular context.” Id. (quoting Todd v. United States, 849 F.2d 365, 370 (9th Cir. 1988)). On the other hand, casting an allegedly violated right too particularly, “would be to allow [the instant defendants], and future defendants, to define away all potential claims.” Id. (quoting Kelley v. Borg, 60 F.3d 664, 667 (9th Cir. 1995)); see also Simon v. City of New York, 893 F.3d 83, 96-97 (2d Cir. 2018) (“This
“[A] court must ask whether it would have been clear to a reasonable officer that the alleged conduct ‘was unlawful in the situation he confronted.‘” Ziglar v. Abbasi, 137 S. Ct. 1843, 1867 (2017) (quoting Saucier, 533 U.S. at 202). “While there does not have to be a case directly on point, existing precedent must place the lawfulness of the particular [action] beyond debate,” Emmons, 139 S. Ct. at 504 (alteration in original) (quoting District of Columbia v. Wesby, 138 S. Ct. 577, 581 (2018) (internal quotation marks omitted)), and must “‘squarely govern[ ]’ the specific facts at issue,” Kisela, 138 S. Ct. at 1153 (quoting Mullenix, 577 U.S. at 15). See Jessop v. City of Fresno, 936 F.3d 937, 940-41 (9th Cir. 2019) (“The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.“) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
The plaintiff “bears the burden of showing that the rights allegedly violated were clearly established.” Shafer v. County of Santa Barbara, 868 F.3d 1110, 1118 (9th Cir. 2017) (internal quotation marks and citation omitted). However, because resolving whether the asserted federal right was clearly established presents a pure question of law, we draw on our “full knowledge” of relevant precedent rather than restricting our review to cases identified by the plaintiff. See Elder, 510 U.S. at 516 (holding appellate court must review qualified immunity judgment de novo and
2. Application
Commonly, plaintiffs seek to define an allegedly violated constitutional right too broadly, while defendants do so too narrowly. The same occurred here with plaintiff arguing that Gordon “had a clearly established right under the Due Process Clause to adequate medical care for his heroin withdrawal” and defendants framing the alleged violation as “a difference of opinion” on the specific facts of this case. Neither articulation strikes the appropriate balance. However, the district court did not resolve the issue of defining the constitutional rights at issue. Instead, it merely distinguished plaintiff‘s authorities based on an erroneous understanding of the applicable standard. We consider the issue de novo, first as to Nurse Finley and then as to Deputy Denney.
The core of “what is really being litigated” against Nurse Finley is whether she used the proper medical screening form to ensure the initiation of a medically appropriate protocol while Gordon was detained. See LSO, 205 F.3d at 1158. Although we have not used those precise words in stating that a constitutional right exists, our precedent confirms that a pretrial detainee‘s right to proper medical screening was clearly established.
At the time of the incident here, it was well settled that prison officials violate the Constitution when they choose a course of treatment that is “medically unacceptable under all of the circumstances.” Snow v. McDaniel, 681 F.3d 978, 988 (9th Cir. 2012), overruled in part on other grounds by Peralta v. Dillard, 744 F.3d 1076, 1083 (9th Cir. 2014) (en banc). In cases involving “choices between alternative courses of treatment,” plaintiff “must show that the course of treatment the doctors chose was medically unacceptable under the circumstances” and that “they chose this course in conscious disregard of an excessive risk to plaintiff‘s health.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (citation omitted), overruled in part on other grounds by Peralta, 744 F.3d at 1076.
Almost twenty years ago, the Ninth Circuit in Gibson v. County of Washoe, 290 F.3d 1175, 1194-96 (9th Cir. 2002), overruled on other grounds by Castro v. County of Los Angeles, 833 F.3d 1060 (9th Cir. 2016), determined that a jury could find a constitutional violation by an intake nurse who “knew that [the plaintiff] was in the throes of a manic state” but “fail[ed] to provide for the identification of [his urgent mental health] needs.” Id. at 1193-96 (addressing
As early as 1990, the Second Circuit agreed in a similar situation that appropriate medical screening is critical. In Liscio v. Warren, 901 F.2d 274 (2d Cir. 1990), overruled in part on other grounds by Caiozzo v. Koreman, 581 F.3d 63, 66 n.1 (2d Cir. 2009), the Second Circuit reversed summary judgment for a doctor who “was on notice that Liscio might be suffering from ailments other than withdrawal from the heroin addiction Liscio mentioned when first booked.” Id. at 276. The doctor was “on notice that the particular ailment might be alcohol withdrawal because Liscio‘s symptoms—delirium and bizarre behavior—are commonly associated with alcohol withdrawal and not with simple heroin withdrawal.” Id. at 276-77. Rather than responding to these
The principles drawn from Snow and Gibson, and by extension Liscio, demonstrate that, at a minimum, medical personnel at jail facilities are required to screen pretrial detainees for critical medical needs. Thus, at the time of the incident, Gordon had a clearly established constitutional right to have a proper medical screen conducted to ensure the medically appropriate protocol was initiated.5 As
Accordingly, the district court‘s grant of qualified immunity based on the clearly established prong is reversed as to Nurse Finley. Given that the County instituted two screening forms to ensure the initiation of a medically appropriate protocol, the case is remanded for a factual analysis of the remaining prong of the qualified immunity test.
b. Direct-View Safety Check Sufficient to Evaluate an Apparent Medical Condition (Deputy Denney)
The gravamen of the action against Deputy Denney is whether, as a pretrial detainee, Gordon had a constitutional right to direct-view safety checks when he was known to
However, we are not aware of any precedent expressly recognizing a detainee‘s right to direct-view safety checks sufficient to determine whether their presentation indicates the need for medical treatment. At the time of the incident, some lower courts had recognized a right to direct-view safety checks even where medical attention was not required. For example, in Wereb v. Maui County, 727 F. Supp. 2d 898 (D. Haw. 2010), the court concluded that “a reasonable factfinder could find that the failure to provide detainees with the right to medical care was an obvious consequence of Maui County‘s employees’ failure to closely monitor detainees or view them in person.” Id. at 923. There, the defendants had failed to follow police department protocols, which required in-person visual checks of detainees, and instead used video monitoring. Id. at 903. Despite the defendants purportedly monitoring the detainee every fifteen minutes via video, Wereb was found dead in his cell around twenty-seven hours after his last recorded movement. Id.; see also Estate of Abdollahi v. County of Sacramento, 405 F. Supp. 2d 1194, 1206-07 (E.D. Cal. 2005) (denying county‘s summary judgment motion where a reasonable jury could find the jail‘s failure to conduct
Nevertheless, Deputy Denney is entitled to qualified immunity because the due process right to an adequate safety check for pretrial detainees was not clearly established at the time of the incident. We now hold that pre-trial detainees do have a right to direct-view safety checks sufficient to
II. Monell Liability
To impose Monell liability on a municipality under Section 1983, plaintiff must prove: (1) Gordon had a constitutional right of which he was deprived; (2) the municipality had a policy; (3) the policy amounts to deliberate indifference to his constitutional right; and (4) “the policy is the moving force behind the constitutional violation.” Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011).
A governmental policy is “a deliberate choice to follow a course of action . . . by the official or officials responsible for establishing final policy with respect to the subject matter in question.” Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986). A plaintiff can satisfy Monell‘s policy requirement in one of three ways. See Thomas v. County of Riverside, 763 F.3d 1167, 1170 (9th Cir. 2014) (per curiam). First, a local government may be held liable when it acts “pursuant to an expressly adopted official policy.” Id. (citing Monell, 436 U.S. at 694); Lytle v. Carl, 382 F.3d 978, 982 (9th Cir. 2004).
Third, “a local government may be held liable under [Section] 1983 when ‘the individual who committed the constitutional tort was an official with final policy-making authority’ or such an official ‘ratified a subordinate‘s unconstitutional decision or action and the basis for it.‘” Clouthier v. County of Contra Costa, 591 F.3d 1232, 1250 (9th Cir. 2010) (quoting Gillette v. Delmore, 979 F.2d 1342, 1346-47 (9th Cir. 1992)), overruled on other grounds by Castro, 833 F.3d at 1070).
Here, plaintiff‘s Monell claim is premised on the County‘s alleged policies, customs, or practices. An unconstitutional policy need not be formal or written to create municipal liability under Section 1983; however, it must be “so permanent and well settled as to constitute a
Because plaintiff did not identify any other instance in which jail personnel used the CIWA protocol for inmates withdrawing on opiate use or a low-visibility safety check resulted in the provision of inadequate medical care, the district court concluded that the Monell claim failed. Generally, “a single incident of unconstitutional activity is not sufficient to impose liability under Monell.” City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985). Where no argument exists that the express policies themselves were unconstitutional, plaintiff was required to produce evidence creating a triable issue of fact regarding the existence of an unconstitutional practice or custom. See Christie v. Iopa, 176 F.3d 1231, 1235 (9th Cir. 1999) (“A single constitutional deprivation ordinarily is insufficient to establish a longstanding practice or custom.“). However, the record lacks evidence of any other event involving similar conduct or constitutional violations and plaintiff‘s reference to the subsequent changes to operating procedures is insufficient.7 Thus, the district court properly granted
CONCLUSION
For the reasons stated herein, the district court‘s grant of summary judgment is AFFIRMED as to Deputy Denney, Nurse Garcia, Sergeant Tunque, and the County and REVERSED and REMANDED as to defendant Nurse Finley.
Notes
Medina v. County of Los Angeles, No. 19-CV-3808 (GHW), 2020 WL 3964793, at *16 (C.D. Cal. Mar. 9, 2020); see also Frary v. County of Marin, 81 F. Supp. 3d 811, 820, 837 (N.D. Cal. 2015) (post-incident) (denying County‘s summary judgment motion where “a reasonable jury could conclude that the County‘s tower checks [from which no portion of the inmate‘s cell-bed could be seen] would not allow deputies to adequately observe inmates“).[T]he Court easily concludes that Plaintiffs can make out at least a triable issue of fact with respect to each of the elements of this claim . . . . [The] defendants knowingly failed to perform safety checks required by policy and law, and were charged with performing them (under the view of the facts resolved in Plaintiffs’ favor); there are facts supporting a conclusion that safety-checks are designed with the purpose of ensuring that inmates are alive-and-well and to determine whether they need any medical treatment, and that failure to perform—or a delay in performing—them increases the inmates’ risk of harm and could threaten their health or at the very least delay medical assistance and emergency response; and there are disputes concerning whether, had they performed the safety checks as required, they would have discovered Decedent and Decedent‘s condition in time to aid or save him.