Mary Gordon v. County of Orange

                 FOR PUBLICATION

 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT


MARY GORDON, successor-in-                No. 16-56005
interest for decedent, Matthew
Shawn Gordon, individually,                  D.C. No.
                   Plaintiff-Appellant,   8:14-cv-01050-
                                            CJC-DFM
                  v.

COUNTY OF ORANGE; ORANGE                    OPINION
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.


      Appeal from the United States District Court
         for the Central District of California
      Cormac J. Carney, District Judge, Presiding

       Argued and Submitted December 8, 2017
                Pasadena, California

                   Filed April 30, 2018
2               GORDON V. COUNTY OF ORANGE

    Before: Kim McLane Wardlaw and Ronald M. Gould,
       Circuit Judges, and Yvonne Gonzalez Rogers, *
                        District Judge.

              Opinion by Judge Gonzalez Rogers


                          SUMMARY **


                         

42 U.S.C. § 1983

    The panel vacated the district court’s summary judgment
in a 

42 U.S.C. § 1983

 action alleging claims of inadequate
medical care under the Due Process Clause of the Fourteenth
Amendment, arising from the death of Matthew Gordon
when he was a pretrial detainee in the Orange County Men’s
Central Jail; and remanded for further proceedings.

    The panel held that given developments in Section 1983
jurisprudence, including the Supreme Court’s decision in
Kingsley v. Hendrickson, 

135 S. Ct. 2466

 (2015), and this
court’s en banc opinion in Castro v. County of Los Angeles,

833 F.3d 1060

 (9th Cir. 2016), the proper standard of review
of such claims was one of objective indifference, not
subjective indifference. The panel held that because the
district court applied a subjective standard to the plaintiff’s
claims of inadequate medical care against individual
defendants, the grant of summary judgment was in error.

     *
      The Honorable Yvonne Gonzalez Rogers, United States District
Judge for the Northern District of California, sitting by designation.
    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
              GORDON V. COUNTY OF ORANGE                      3

    The panel declined to address the individual defendants’
claim of qualified immunity in the first instance.

    The panel held that the district court improperly granted
summary judgment for the County of Orange and associated
entities on the ground that the plaintiff could not establish a
custom or practice sufficient under Monell v. Department of
Social Services, 

436 U.S. 658

 (1978). The panel left this
question for the district court to address in the first instance
using the proper standard.


                         COUNSEL

David A. Schlesinger (argued), Jacobs & Schlesinger LLP,
San Diego, California; Cameron Sehat, The Sehat Law Firm
PLC, Irvine, California; for Plaintiff-Appellant.

Pancy Lin (argued) and S. Frank Harrell, Lynberg &
Watkins, Orange, California, for Defendants-Appellees.


                          OPINION

GONZALEZ ROGERS, District Judge:

    This case arises from the death of Matthew Gordon
(“Gordon”) within 30 hours of being detained in the Orange
County Men’s Central Jail (the “County Jail”). Plaintiff
Mary Gordon, successor-in-interest for decedent, sued
defendants Robert Denny, Brian Tunque, Brianne Garcia,
and Debra Finley (“the Individual Defendants”); and the
County of Orange and associated entities (“the Entity
Defendants”) under 

42 U.S.C. § 1983

 for violating Gordon’s
right to adequate medical care under the due process clause
4             GORDON V. COUNTY OF ORANGE

of the Fourteenth Amendment. Given developments in
Section 1983 jurisprudence, including the Supreme Court’s
decision in Kingsley v. Hendrickson, 

135 S. Ct. 2466

 (2015),
and our en banc decision in Castro v. County of Los Angeles,

833 F.3d 1060

 (9th Cir. 2016), we conclude that the proper
standard of review for such claims is one of objective
indifference, not subjective indifference. Accordingly,
summary judgment is vacated and the case is remanded to
the district court for further proceedings consistent with this
decision.

               PROCEDURAL HISTORY

    The Individual Defendants sought summary judgment
on the ground that the plaintiff lacked evidence of their
alleged deliberate indifference to the decedent’s health or
safety. The Entity Defendants also sought summary
judgment based upon the plaintiff’s failure to show a custom
or practice sufficient under Monell v. Department of Social
Services, 

436 U.S. 658

 (1978). In this regard, the plaintiff
had proceeded on two theories which she alleged led to
Gordon’s death. First, the plaintiff alleged the systematic
use of the wrong intake form which resulted in the
misclassification and misplacement of detainees.           In
particular, she claimed the Entity Defendants used a form
designed to address alcohol withdrawal rather than one
designed for opiate withdrawal. Second, she alleged the
systematic failure to conduct welfare checks or “safety
checks” from a vantage point which allowed for visual
observation of the safety and welfare of all inmates.

   The district court granted summary judgment in favor of
the Individual Defendants reasoning that a due process
challenge based on inadequate medical care required a
showing of subjective deliberate indifference and that there
was insufficient evidence to support that showing. The
              GORDON V. COUNTY OF ORANGE                     5

district court also granted summary judgment in favor of the
Entity Defendants on the plaintiff’s Monell claim on the
ground that the plaintiff failed to present sufficient evidence
of a custom or practice. The plaintiff timely appealed.

                     BACKGROUND

    The events at issue began on September 8, 2013 at
6:47 p.m. and ended on September 9, 2013 at 11:00 p.m.
Within less than 30 hours, Matthew Gordon died while
detained in Module C, Tank 11 of the Orange County Jail.

    On September 8, 2013, the Placentia Police Department
arrested Gordon on heroin-related charges and transported
him to the County Jail. Defendant nurse Debra Finley
(“Nurse Finley”) conducted an intake assessment of Gordon
at 6:47 p.m. during which she inquired whether he “use[d]
any street drugs.” In response Gordon indicated that he used
“[h]eroine, by IV, at 3 grams a day.” To evaluate Gordon,
Nurse Finley used an assessment form designed for alcohol
withdrawal, entitled Clinical Institute Withdrawal
Assessment for Alcohol (“CIWA”). She did not use the
county’s “Clinical Opiate Withdrawal Scale” (“COWS”)
assessment form.

    Thereafter, defendant Nurse Finley consulted with non-
party Dr. Thomas Le (a consulting physician) (“Dr. Le”)
who issued an “Opiate WD [Withdrawal] Order.” Therein,
Dr. Le both 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. Dr. Le
apparently crossed out a section under the heading “Nursing
Detox Assessments” which stated “COWS and Vital Signs
on admission and daily x5” and instead handwrote “CIWA
x 4 Days,” that is, Gordon was to receive the ordered
6             GORDON V. COUNTY OF ORANGE

protocol for four days. Nurse Finley completed the intake
assessment and had no further contact with Gordon.

    The plaintiff’s nursing expert opined that the county’s
COWS form would have measured symptoms specific to
opiate withdrawal and triggered a need to house Gordon in
the Medical Observation Unit where Gordon would have
been monitored more closely. The plaintiff’s expert further
opined that had the COWS form been used, it is more
probable than not that Gordon would have been found to be
in medical distress hours prior to his death. The plaintiff
proffered evidence that the Entity Defendants did not use the
COWS form systematically, and changed their practice after
Gordon’s death.

    Following his intake assessment, Gordon waited for
nearly ten hours to be assigned a space in the County Jail’s
general population. During this time a fellow detainee
observed Gordon vomit continuously for 30–45 minutes and
“curl up in a ball.” At approximately 8:30 a.m. on
September 9, 2013, Gordon was transferred to Module C,
Tank 11 in the County Jail along with a “module card” to
advise the deputies that Gordon required medical attention.
While Gordon was in Module C, defendant nurse Brianne
Garcia, on three occasions, administered the medications
which Dr. Le prescribed but had no further interaction with
the decedent.

    Defendant Deputy Denny (“Deputy Denny”) conducted
a welfare check of Module C at approximately 6:47 p.m. on
September 9, 2013. He then conducted a second and third
check after lights out at 8:31 p.m. and 9:29 p.m.,
respectively. The stated purpose of the checks was to
“maintain the safety and health of the inmates and the
security of the facilities” with “direct visual observation of
each inmate . . . .” Deputy Denny testified that he conducted
             GORDON V. COUNTY OF ORANGE                    7

these three welfare checks from a corridor which was twelve
to fifteen feet away from Gordon’s bunk and was elevated
approximately six feet from the Tank 11 floor. The
plaintiff’s evidence suggests that the checks were further
obscured by a glass corridor. In any event, Deputy Denny
acknowledged that from his vantage point he was unable to
determine whether an inmate was “breathing,” “alive,” or
had “potential indicators of a physical problem.”

    At approximately 10:46 p.m., inmates in Module C
yelled “man down” to the deputies, the man being Gordon.
Deputy Denny arrived within a couple of minutes. He
testified that upon his arrival Gordon’s “face was blue, he
was unresponsive and his skin was cold to the touch.”
Medical staffers arrived a few minutes later and attempted to
administer care. At 11:00 p.m. paramedics transported
Gordon to Western Medical Center in Santa Ana 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
events described herein.

               STANDARD OF REVIEW

    We review the district court’s decision to grant summary
judgment de novo. Qwest Commc’ns Inc. v. City of
Berkeley, 

433 F.3d 1253

, 1256 (9th Cir. 2006). Thus,
viewing the evidence in the light most favorable to the
nonmoving party, we must determine whether the district
court correctly applied the relevant substantive law, and if
so, whether genuine issues of material fact exist. Fichman
v. Media Ctr., 

512 F.3d 1157, 1159

 (9th Cir. 2008) (internal
citation omitted).
8             GORDON V. COUNTY OF ORANGE

                       DISCUSSION

    A. Section 1983 Claims after Castro

    With this Court’s en banc decision in Castro, we rejected
the notion that a subjective deliberate indifference standard
applied globally to all section 1983 claims, whether brought
by pretrial detainees or by convicted prisoners. Castro,
833 F.3d at 1069–71. This decision addresses the standard
for claims brought by pretrial detainees for inadequate
medical care.

    We briefly recount the jurisprudential history relevant
here. In Estelle v. Gamble, 

429 U.S. 97, 104

 (1976), the
Supreme Court held that prison officials’ “deliberate
indifference to serious medical needs of prisoners” violates
the Cruel and Unusual Punishment Clause of the Eighth
Amendment. In 1986, we concluded in Carnell that “even
though pretrial detainees[sic] claims ‘arise under the due
process clause [of the Fourteenth Amendment], the [E]ighth
[A]mendment guarantees provide a minimum standard of
care for determining rights as a pretrial detainee, including
rights . . . to medical care.’” Carnell v. Grimm, 

74 F.3d 977, 979

 (9th Cir. 1996) (quoting Jones v. Johnson, 

781 F.2d 769, 771

 (9th Cir. 1986) (emphasis in Carnell)). Thus, prior to
our decision in Castro, all conditions of confinement claims,
including claims for inadequate medical care, were analyzed
under a subjective deliberate indifference standard whether
brought by a convicted prisoner under the Eighth
Amendment or pretrial detainee under the Fourteenth
Amendment. See Clouthier v. County of Contra Costa,

591 F.3d 1232

, 1242–43 (9th Cir. 2010) (finding a single
“deliberate indifference” test for plaintiffs who bring a
                 GORDON V. COUNTY OF ORANGE                                9

constitutional claim—whether under the Eighth Amendment
or the Fourteenth Amendment). 1

    In Castro we noted that our decision in Clouthier to
create a single “deliberate indifference” standard for
constitutional claims brought under the Eighth and
Fourteenth Amendments was “cast . . . into serious doubt”

    1
       Clouthier concerned a medical care case in which the parents of a
pretrial detainee claimed that jail officials violated the due process rights
of their son by failing to address his medical needs, in particular there,
suicide prevention. Clouthier, 

591 F.3d at 1240

. The Court interpreted
prior precedent “to require proof of punitive intent for failure-to-protect
claims, whether those claims arise in a pretrial or a post-conviction
context.” Castro, 

833 F. 3d at 1068

 (citing Clouthier, 

591 F.3d at 1236

).
“We further held that this standard incorporates the subjective test . . . .”

Id.

 (citing Clouthier, 

591 F.3d at 1242

) (emphasis in original). Under
this subjective test, the Clouthier Court held that “[a]n official’s failure
to alleviate a significant risk that he should have perceived but did not,
while no cause for commendation,” cannot support liability under the
Fourteenth Amendment. Clouthier, 

591 F.3d at 1242

 (quoting Farmer
v. Brennan, 

511 U.S. 825, 838

 (1994)).

     Clouthier relied upon both 

Farmer, supra,

 and Bell v. Wolfish,

441 U.S. 520, 535

 (1979) (finding that inmates who sue prison officials
for injuries suffered while in custody may do so under the Eighth
Amendment’s Cruel and Unusual Punishment Clause or, if not yet
convicted under the Fourteenth Amendment’s Due Process Clause). In
Farmer, the Supreme Court held that a prison official cannot be liable
under the Eighth Amendment’s Cruel and Unusual Punishment Clause
for denying an inmate adequate 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.” 

511 U.S. at 837

. We interpreted Farmer to
stand for the proposition that “the official must demonstrate a subjective
awareness of the risk of harm.” Conn v. City of Reno, 

591 F.3d 1081, 1096

 (9th Cir. 2010), cert. granted and judgment vacated, 

563 U.S. 915

(2011), opinion reinstated in relevant part, 

658 F.3d 897

 (9th Cir. 2011)
(emphasis in original).
10            GORDON V. COUNTY OF ORANGE

by the Supreme Court’s holding in Kingsley. Castro,

833 F.3d at 1068

. In Kingsley, the Supreme Court had
considered “whether, to prove an excessive force claim a
pretrial detainee must show that the officers were
subjectively aware that their use of force was unreasonable,
or only that the officers’ use of force was objectively
unreasonable.” Kingsley, 

135 S. Ct. at 2470

 (emphasis in
original). The Supreme Court identified two “separate state-
of-mind questions,” namely the defendant’s state of mind
regarding (i) “his physical acts—i.e., his state of mind with
respect to the bringing about of certain physical
consequences in the world” and (ii) “whether his use of force
was excessive.” 

Id. at 2472

. With regard to the first
question, defendants did not dispute that the officers’ use of
force was intentional. With regard to the second question,
the Court held that “the relevant standard is objective not
subjective.” 

Id.

 Put differently, the Supreme Court
explained that “a pretrial detainee must show only that the
force purposely or knowingly used against him was
objectively unreasonable.” 

Id. at 2473

.

    Interpreting Kingsley, our decision in Castro extended
the objective standard to failure-to-protect claims,
reasoning, in part, that “Section 1983 itself ‘contains no
state-of-mind requirement independent of that necessary to
state a violation’ of the underlying federal right.” Castro,

833 F.3d at 1069

 (quoting Bd. of Cty. Comm’rs v. Brown,

520 U.S. 397, 405

 (1997)); see also Daniels v. Williams,

474 U.S. 327, 330

 (1986). We concluded that as with
excessive force claims, failure-to-protect “claims arise
under” the same constitutional framework. Castro, 833 F.3d
at 1069–70. Thus “it does not matter whether the defendant
understood that the force used was excessive, or intended it
to be excessive, because the standard is purely objective.”

Id.

 at 1068 (citing Kingsley, 136 S. Ct. at 2472–73). In short,
                GORDON V. COUNTY OF ORANGE                          11

in Castro, we declared that Kingsley “expressly rejected the
interpretation of Bell on which we had relied in Clouthier
. . . . [and] the notion that there exists a single ‘deliberate
indifference’ standard applicable to all § 1983 claims,
whether brought by pretrial detainees or by convicted
prisoners.” Id. (Emphasis in original.)

    B. Claims for Inadequate Medical Care by Pretrial
       Detainees

    While Kingsley did “not necessarily answer the broader
question of whether the objective standard applies to all
Section § 1983 claims brought under the Fourteenth
Amendment against individual defendants[,]” (id.) logic
dictates extending the objective deliberative indifference
standard articulated in Castro to medical care claims. 2 First,
the landscape remains the same. As noted, we remain in a
realm where “Section 1983 itself ‘contains no state-of-mind
requirement independent of that necessary to state a
violation’ of the underlying federal right” (id.) and here, the
medical care claims brought by pretrial detainees also “arise
under the Fourteenth Amendment’s Due Process Clause,
rather than under the Eighth Amendment’s Cruel and
Unusual Punishment Clause” (id. at 1069–70). Notably, the
“broad wording of Kingsley . . . . did not limit its holding to
‘force’ but spoke to ‘the challenged governmental action’


    2
      The Second Circuit also recently extended the objective deliberate
indifference standard to all conditions of confinement claims brought
under the due process clause of the Fourteenth Amendment. See Darnell
v. City of New York, 

849 F.3d 17, 36

 (2d Cir. 2017) (opining on a wide
range of conditions of confinement claims brought by twenty pretrial
detainees, the court held “[c]onsistency with the Supreme Court’s
decision in Kingsley now dictates that deliberate indifference be
measured objectively in due process cases”).
12               GORDON V. COUNTY OF ORANGE

generally.” 

Id.

 at 1070 (quoting Kingsley, 135 S. Ct. at 2473–
74).

    Second, the Supreme Court has treated medical care
claims substantially the same as other conditions of
confinement violations including failure-to-protect claims.
For instance in 1991, in Wilson v. Seiter, the Supreme Court
saw “no significant distinction between claims alleging
inadequate medical care and those alleging inadequate
‘conditions of confinement.’ Indeed, the medical care a
prisoner receives is just as much a ‘condition’ of his
confinement as . . . the protection he is afforded against other
inmates.” Wilson v. Seiter, 

501 U.S. 294, 303

 (1991). Third,
we have long analyzed claims that government officials
failed to address pretrial detainees’ medical needs using the
same standard as cases alleging that officials failed to protect
pretrial detainees in some other way. 3 Simmons v. Navajo
Cty., Ariz., 

609 F.3d 1011

, 1017–18 (9th Cir. 2010);
Clouthier, 591 F.3d at 1241–42; Lolli v. County of Orange,

351 F.3d 410

,418–19 (9th Cir. 2004).

    Accordingly, we hold that claims for violations of the
right to adequate medical care “brought by pretrial detainees
against individual defendants under the Fourteenth
Amendment” must be evaluated under an objective
deliberate indifference standard. Castro, 

833 F.3d at 1070

.
Based thereon, the elements of a pretrial detainee’s medical

     3
      Correspondingly, other circuit courts treat failure-to-protect claims
as claims alleging failure to provide adequate medical care. See Young
v. City of Mount Rainier, 

238 F.3d 568

, 575 (4th Cir. 2001) (concluding
that a failure-to-protect claim was “no different in any meaningful
respect from the indifferent-to-medical-needs claim”); Hare v. City of
Corinth, 

74 F.3d 633, 644

 (5th Cir. 1996) (en banc) (noting “the absence
of a constitutionally significant distinction between failure-to-protect
and medical care claims”).
                GORDON V. COUNTY OF ORANGE                          13

care claim against an individual defendant under the due
process clause of the Fourteenth Amendment are: (i) the
defendant made an intentional decision with respect to the
conditions under which the plaintiff was confined; (ii) those
conditions put the plaintiff at substantial risk of suffering
serious harm; (iii) the defendant did not take reasonable
available measures to abate that risk, even though a
reasonable official in the circumstances would have
appreciated the high degree of risk involved—making the
consequences of the defendant’s conduct obvious; and
(iv) by not taking such measures, the defendant caused the
plaintiff’s injuries. “With respect to the third element, the
defendant’s conduct must be objectively unreasonable, a test
that will necessarily ‘turn[ ] on the facts and circumstances
of each particular case.’” 

Id.

 at 1071 (quoting Kingsley,

135 S. Ct. at 2473

; Graham v. Connor, 

490 U.S. 386, 396

(1989)). The “‘mere lack of due care by a state official’ does
not deprive an individual of life, liberty, or property under
the Fourteenth Amendment.” 

Id.

 (quoting Daniels, 474 U.S.
at 330–31). Thus, the plaintiff must “prove more than
negligence but less than subjective intent—something akin
to reckless disregard.” 4 

Id.

    4
      This differs from the inquiry under the Eighth Amendment which
requires that the “prison official must subjectively have a sufficiently
culpable state of mind.” 

Id.

 at 1070–71 (quoting Estate of Ford v.
Ramirez-Palmer, 

301 F.3d 1043, 1049

 (9th Cir. 2002) (emphasis in
original)). “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.” Estate of Ford, 

301 F.3d at 1050

 (quoting Farmer v.
Brennan, 

511 U.S. 825, 837

 (1994)). By contrast “a pretrial detainee
need not prove those subjective elements about the officer’s actual
awareness of the level of risk.” Castro, 

833 F.3d at 1071

.
14            GORDON V. COUNTY OF ORANGE

    Because the district court applied a subjective standard
to the plaintiff’s claim of inadequate medical care, the grant
of summary judgment was in error.

     C. Qualified    Immunity      Under     an    Objective
        Standard

     The Individual Defendants argue that even under an
objective deliberate indifference standard they are immune
from liability under the doctrine of qualified immunity. The
district court did not reach this issue. Accordingly, we
decline to address the question of qualified immunity in the
first instance.

     D. The Monell Claim against the Entity Defendants

    The district court also granted summary judgment for the
Entity Defendants on the ground that the plaintiff could not
establish a custom or practice sufficient under Monell. In
light of this opinion, the grant of summary judgment was
improper. We also leave this question for the district court
to address in the first instance using the proper standard.

   Accordingly, summary judgment as to all defendants is
VACATED and REMANDED for further proceedings
consistent with this opinion.