Lemire v. California Department of Corrections & Rehabilitation

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SHERIE LEMIRE , Individually and as No. 11-15475

personal representative for the Estate

of Robert St. Jovite; Gerard Charles D.C. No.

St. Jovite and Nicole St. Jovite; 2:08-cv-00455-

NICOLE ST . JOVITE; GERARD GEB-EFB

CHARLES ST . JOVITE; ESTATE OF

ROBERT ST . JOVITE, OPINION

Plaintiffs-Appellants,

v.

CALIFORNIA DEPARTMENT OF

CORRECTIONS AND

REHABILITATION ; ARNOLD

SCHWARZENEGGER , Individually and

in his official capacity as Governor

of the State of California; JAMES E.

TILTON , Individually and in his

official capacity as Secretary of CA

Department of Corrections and

Rehabilitation; TOM L. CARY ,

Individually and in his official

capacity as Warden of CSP-Solano;

D. K. SISTO , Individually and in his

official capacity as Warden of CSP-

Solano; CAHOON , Individually and

in her official capacity as

Correctional Officer; ALCARAZ,

Individually and in his official

2 LEMIRE V . CAL. DEP’T OF CORR.

capacity as Correctional Officer;

WADE, Individually and in his

official capacity as Correctional

Officer; ORRICK, Individually and in

her official capacity as Correctional

Officer; MARTINEZ, Individually and

in her official capacity as

Correctional Officer; GORDON

WONG , Individually and in his

official capacity; HAK, MTA,

Individually and in her official

capacity; ALVARA C. TRAQUINA ,

M.D., Individually and in his official

capacity as Chief Medical

Officer/Health Care Manager;

NORIEGA , Individually and in his

official capacity; DUSAY , DR.,

Individually and in his official

capacity; NEURING , Individually and

in his official capacity; DODIE

HICKS, Senior RN; C. HOLLIDAY ,

Correctional Officer, Badge No.

70808; JAIME CHUA , Correctional

Officer, Badge No. 55696,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of California

Garland E. Burrell, District Judge, Presiding

LEMIRE V . CAL. DEP’T OF CORR. 3

Argued and Submitted

May 15, 2012—San Francisco, California

Filed August 7, 2013

Before: Stephen Reinhardt, Richard R. Clifton, and

N. Randy Smith, Circuit Judges.

Opinion by Judge Clifton

SUMMARY*

Prisoner Civil Rights

The panel affirmed in part and vacated in part the district

court’s summary judgment and remanded in an action arising

from the apparent suicide of an inmate in the California

prison system.

The panel held that the district court erred in granting

summary judgment with respect to plaintiffs’ claims that

defendants Warden Dennis Sisto and Captain James Neuhring

impermissibly convened a staff meeting that resulted in the

absence of all floor officers from the building where the

inmate was incarcerated for a period of as long as three and

a half hours because those claims presented triable issues of

fact. The panel held that a jury could conclude, on the basis

of the factual record before the district court, that the

complete withdrawal of all supervision created an

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

4 LEMIRE V . CAL. DEP’T OF CORR.

unconstitutional risk of harm to the mentally ill inmates, that

Sisto and Neuhring were responsible for, and deliberately

indifferent to, this lack of supervision and that the lack of

floor staff was an actual and proximate cause of the inmate’s

death. The panel affirmed, however, the grant of summary

judgment on the inadequate staffing claim with respect to

defendants Lieutenant Gordon Wong, Sergeant Gale

Martinez, and Sergeant Cheryl Orrick.

The panel also held that the district court erred in granting

summary judgment with respect to plaintiffs’ claims based on

the failure to administer CPR by defendants Officer Rebecca

Cahoon and Officer Chris Holliday. The panel concluded that

there was a triable issue of fact as to whether defendants

Cahoon and Holliday were deliberately indifferent to the

inmate’s potentially serious medical need when they first

arrived at his cell. The panel affirmed with respect to

plaintiffs’ claims for failure to provide proper medical

treatment with respect to the remaining defendants. The

panel also affirmed with respect to the failure to train claims.

COUNSEL

Geri Lynn Green, Attorney, San Francisco, California, for

Plaintiffs-Appellants.

Kamala D. Harris, Attorney General of California, Jonathan

L. Wolff, Senior Assistant Attorney General, Thomas S.

Patterson, Supervising Deputy Attorney General, Diana

Esquivel (argued), Deputy Attorney General, Sacramento,

California, for Defendants-Appellees.

LEMIRE V . CAL. DEP’T OF CORR. 5

OPINION

CLIFTON, Circuit Judge:

This action under 42 U.S.C. § 1983 arises from the

apparent suicide of an inmate in the California prison system,

Robert St. Jovite. The estate, parents, and daughter of the

deceased prisoner seek to recover damages for alleged

violations of the Eighth Amendment, based on St. Jovite’s

right to be free from cruel and unusual punishment, and the

Fourteenth Amendment, based on the family’s substantive

due process right of familial association. These claims are

predicated on allegations that members of the custodial,

medical, and supervisory staff at California State Prison at

Solano (“CSP-Solano”) failed to protect and provide adequate

medical care by failing to (1) ensure the presence of floor

officers to provide sufficient supervision of the inmates, (2)

administer CPR immediately after St. Jovite was found

unconscious in his cell, and (3) sufficiently train the prison

staff in proper CPR procedure. The district court granted

summary judgment to Defendants on all claims.

We hold that the district court erred in granting summary

judgment with respect to Plaintiffs’ claims that Defendants

Warden Dennis Sisto and Captain James Neuhring

impermissibly convened a staff meeting that resulted in the

absence of all floor officers from the building where St.

Jovite was incarcerated for a period of as long as three and a

half hours because those claims present triable issues of fact.

A jury could conclude, on the basis of the factual record

before the district court, that the complete withdrawal of all

supervision created an unconstitutional risk of harm to the

mentally ill inmates in St. Jovite’s building and that Sisto and

Neuhring were responsible for, and deliberately indifferent

6 LEMIRE V . CAL. DEP’T OF CORR.

to, this lack of supervision. The jury could also conclude that

the lack of floor staff was an actual and proximate cause of

St. Jovite’s death. We affirm, however, the grant of summary

judgment on the inadequate staffing claim with respect to

Defendants Lieutenant Gordon Wong, Sergeant Gale

Martinez, and Sergeant Cheryl Orrick.

We also hold that the district court erred in granting

summary judgment with respect to Plaintiffs’ claims based on

the failure to administer CPR by Defendants Officer Rebecca

Cahoon and Officer Chris Holliday. We conclude that there

is a triable issue of fact as to whether Defendants Cahoon and

Holliday were deliberately indifferent to St. Jovite’s

potentially serious medical need when they first arrived at his

cell. We affirm with respect to Plaintiffs’ claims for failure to

provide proper medical treatment with respect to the

remaining defendants. We also affirm with respect to the

failure to train claims.

Accordingly, we vacate the summary judgment as to the

claims against Defendants Sisto and Neuhring for

withdrawing all floor officers from St. Jovite’s building, and

as to the claims against Defendants Cahoon and Holliday for

failure to provide CPR and remand for further proceedings

with respect to these claims.

I. Background

Robert St. Jovite was found unconscious and

unresponsive in his cell at CSP-Solano on May 10, 2006.

During his incarceration, St. Jovite was treated for

depression, anxiety, panic attacks, and early stages of

agoraphobia. After his last treatment session, St. Jovite filled

out an inmate appeal form in which he stated that his “daily

LEMIRE V . CAL. DEP’T OF CORR. 7

life [was] almost unmanageable” as a result of his mental

condition. St. Jovite never expressed any suicidal thoughts,

intentions, or feelings to his treating psychiatrist, however,

and his psychiatrist saw no evidence of suicidal ideation

during his treatment or through his review of St. Jovite’s

medical records.

In order to explain St. Jovite’s death, we first recount the

circumstances that led to his being left without supervision,

along with his fellow inmates, for as much as three and a half

hours. We then recount the chaotic and disputed

circumstances surrounding the response of CSP-Solano’s

staff to St. Jovite’s apparent suicide as stated by the parties,

in that same light. As we must at the summary judgment

stage, we view the relevant facts in the light most favorable

to Plaintiffs.

A. The Staffing of Building 8

The high rate of suicides in California prisons was a

“focus” of California prison administrators, including those

at CSP-Solano, from 2004 onwards as a result of the Coleman

v. Schwarzenegger litigation.1 In addition to suicide concerns,

1

The Coleman litigation deals, among other issues related to inmate

health, with the high rate of suicides in California Department of

Corrections and Rehabilitation (“CDCR”) prisons. In particular, the

Coleman Special Master submitted a report for the year 2005, the year

before St. Jovite died, indicating that 43 inmates committed suicide in

CDCR prisons that year, a rate of ~26 suicides per 100,000 inmates –

almost double the national average. See Coleman v. Brown, No. 90-00520,

Doc. No. 2566 at 1–2 (E.D. Cal. Nov. 26, 2007). Of these 43 suicides,

four took place at CSP-Solano, and at least three of the CSP-Solano

inmates who committed suicide were mentally ill inmates with the same

classification as St. Jovite. Because the Coleman special master’s reports

8 LEMIRE V . CAL. DEP’T OF CORR.

inmate-on-inmate violence was also a problem at CSP-

Solano. Warden Sisto explained that when he was hired to

run CSP-Solano he was told that the prison “needed some

work” and that “due to all the violence they were having, they

continued to have lockdowns, a lot of violence.”

St. Jovite was housed on the second tier in Building 8 of

CSP-Solano. Each of the two tiers in Building 8 had fifty

cells, and there were roughly 190 inmates between them at

the time of St. Jovite’s death. Building 8 was the designated

facility at CSP-Solano for housing inmates who utilized

certain psychotropic medications2 including patients

classified as Correctional Clinical Case Management System

inmates (“CCCMS”), a status given to inmates with

psychiatric illnesses. The majority of the inmates in Building

8, including St. Jovite and his cell mate John Lee Harden,

were classified as CCCMS inmates, meaning they suffered

from any of a variety of psychiatric illnesses. CCCMS is the

lowest level of care in the State’s prison mental health

delivery system, and is designed to provide a level of care

equivalent to that received by non-incarcerated patients

through outpatient psychiatric treatment. Although CSP-

Solano provided air conditioned facilities and otherwise

protected the inmates from exposure to heat, it did not

provide any additional security to the inmates in Building 8.

are court filings, it is appropriate to take judicial notice of them. See

Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir.

2006).

2

This is because Building 8 is air conditioned and patients using certain

psychotropic medications, or “heat meds,” cannot be exposed to extreme

heat because of the high risk that they will suffer a heat stroke.

LEMIRE V . CAL. DEP’T OF CORR. 9

The security staffing at CSP-Solano was broken into three

watches: first watch (10:00 p.m. to 6:00 a.m.), second watch

(6:00 a.m. to 2:00 p.m.), and third watch (2:00 p.m. to 10:00

p.m.). During the daytime watches (second and third watch),

Building 8 was staffed with two floor officers and one control

booth officer. During the graveyard shift (first watch),

Building 8 had a leaner staff, with a control booth operator

and one floor officer who split his time between Building 8

and another housing unit.

According to the Post Orders3 for correction officers at

Building 8, one of a floor officer’s “primary function[s] is to

act as a safeguard against suicide attempts as well as fires set

by inmates within the unit.” Naturally, floor officers are also

responsible for preventing crime, including inmate-on-inmate

violence, and maintaining order and safety. In order to

accomplish these goals, “[s]ecurity inspections of the unit

shall be made upon assuming and prior to leaving the post

and on an irregular basis throughout the shift” (emphasis

added). Security checks are supposed to be performed at least

after every unlock, and at least once an hour during daytime

watches regardless of whether there has been an unlock.

According to Neuhring, the Facility Captain in charge of

Building 8 and the officer who called the May 10 staff

meetings during which St. Jovite’s apparent suicide attempt

occurred, “[i]f the [floor] officers are doing their job” they

should regularly be “checking their tiers” and “walking

around.” The purpose of doing so is to “check[] the welfare

of the inmates, both looking for crime occurring and their

welfare.”

3

Post Orders are written, standing orders describing the duties and

responsibilities of officers in a given position in the California State Prison

system.

10 LEMIRE V . CAL. DEP’T OF CORR.

The extended absence of floor officers at Building 8 was

generally considered unacceptable. Neuhring stated that floor

officers should not all be pulled from the floor at the same

time except in “very rare” circumstances and that such

absences “shouldn’t be getting longer than [15–30 minutes].

It may be go [sic] into 45 minutes, but not normally.” Sisto

stated that if any inmates were out of their cells “you don’t

pull a floor officer out of the building.” By contrast, during

the graveyard shift, when prisoners are asleep, Sisto

considered it acceptable for there to be no floor officer

actively patrolling for up to an hour and a half, but two hours

“would be pushing it.”4

CSP-Solano’s supervisors’ views of what was safe was

more lax than the standards promulgated by the American

Correctional Association and the CDCR. Those standards, as

explained by Plaintiffs’ expert witness, mandate that “all

special management inmates [be] personally observed by a

correctional officer at least every 30 minutes on an irregular

schedule.”

When Defendants Cahoon and Holliday, the third shift

floor officers assigned to Building 8 on May 10, 2006,

reported for duty at Building 8 shortly before 2:00 p.m., they

were both told to report directly to a staff meeting convened

by Neuhring rather than conducting the beginning-of-shift

4

However, Sisto’s predecessor as warden, Thomas Carey, stated that he

was unaware that it was ever the case that there were no floor officers on

duty in Building 8.

LEMIRE V . CAL. DEP’T OF CORR. 11

security check that was required by their Post Orders.5

According to Holliday, the floor officers from the second

watch were also not on the floor at Building 8 at the time that

he and Cahoon were told to report to the staff meeting, as

second watch’s floor officers also had been called into a staff

meeting on the same subject, sometime between 12:00 and

12:30 p.m.6 This left only Control Booth Officer Jaime Chua

on watch in Building 8, but he was not permitted to leave the

control booth for any reason, and could not see into most cells

from his control booth. Harden testified that at some point

around 12:30 p.m., a prison official announced to the inmates

of Building 8 that a staff meeting was occurring. As a result,

the inmates were on notice that they were unsupervised.

Cahoon and Holliday returned to Building 8 around

3:30 p.m. At that point, viewing the evidence in the light most

favorable to Plaintiffs, the inmates in Building 8 had been left

without any floor supervision, without security checks, and

without any prison official (other than the control booth

officer) able to respond to an emergency call, for as much as

three and a half hours. Although Cahoon and Holliday

believed that Building 8 was on lockdown during their

5

Some evidence suggests that the meetings concerned the stabbing of

a prison guard at another CDCR facility, but as Plaintiffs note, this fact is

not clearly established in light of the fact that only Cahoon could recall the

subject of the meetings; Neuhring himself could not. Although Sisto did

not remember approving the meetings, Neuhring testified that it would

have been necessary for the W arden to have approved any such meetings.

6

Neuhring explained that his custom, when convening staff meetings,

was to schedule back-to-back meetings: one with outgoing staff from an

earlier watch, followed immediately by another meeting with the incoming

staff from the later watch.

12 LEMIRE V . CAL. DEP’T OF CORR.

absence, when they returned there were 10 or 15 inmates who

“weren’t supposed to be out” milling around in the day room.

B. St. Jovite’s Death

Almost immediately upon their return, Cahoon and

Holliday heard St. Jovite’s cell mate Harden yelling “man

down.” After identifying which cell the shouts were coming

from, Cahoon and Holliday went up to the second tier, where

the cell was located. Cahoon testified that through the cell

door she saw St. Jovite sitting on the ground with his back

against the corner of the door. Harden was standing above St.

Jovite and looked like he was slapping him. Believing that

Harden and St. Jovite had been fighting, Cahoon told Harden

to back away and asked what happened. Harden stated that he

had been asleep and woke up to find St. Jovite hanging from

the grill over the sink.

The events that followed are disputed, and the evidence

in the record is contradictory. Defendants, relying primarily

on the incident reports and deposition testimony of Cahoon

and Holliday, argue that Cahoon called a medical code 2 at

that time, 3:44 p.m., and sent Holliday to get a cut-down kit

and CPR mask from the control booth. While waiting for

Holliday to return, Cahoon saw Defendant Medical Technical

Assistant Shabreen Hak (MTA Hak) approaching the building

and Defendant Search and Escort Officer Raymond Wade

coming up the stairs to the second tier. CSP-Solano policy

was that staff members could not open a cell door without at

least one other staff member present, so Cahoon waited until

Hak and Wade were close and then signaled to Chua, the

control booth officer, to open the cell door. According to

Defendants, MTA Hak arrived at 3:45 p.m. just as the cell

door was opening. Holliday testified that he arrived back at

LEMIRE V . CAL. DEP’T OF CORR. 13

the cell door with the cut-down kit along with MTA Hak and

Wade. After cracking the door open, Cahoon saw that St.

Jovite had a noose around his neck and instructed Wade to

call a medical code 3.

When the door opened fully, St. Jovite, who had been

sitting against the corner of the cell, rolled onto his back until

his body was partially protruding from the cell. Wade then

escorted Harden downstairs. Cahoon described St. Jovite as

cold to the touch with a sheet around his neck, a purplish

color on his face, and dried mucous and spit around his

mouth. Cahoon attempted to get a response from him by

saying “Hey, St. Jovite.” Holliday similarly asked St. Jovite

if he was okay, but St. Jovite did not respond. Because MTA

Hak was at the scene, Cahoon and Holliday deferred to her,

as medical staff, and stayed a few feet away from where St.

Jovite was on the floor.

Plaintiffs disagree with this sequence of events.

Specifically, Plaintiffs dispute when Cahoon and Holliday

called the medical code 2 and ordered Chua to open the cell

door. They also contest whether MTA Hak arrived as the cell

door was opening or at some point after it had been opened

by Chua with St. Jovite already on the floor. Plaintiffs rely on

the incident report prepared by Chua, the control booth

officer who opened the cell door, which states that after

Cahoon and Holliday looked inside the cell, they instructed

Chua to unlock the door, went inside, and thereafter called for

a medical code 2. The summary report prepared by Defendant

Lieutenant Gordon Wong similarly states that Cahoon and

Holliday ordered Chua to open the cell door and discovered

St. Jovite unconscious prior to calling the medical code 2.

Moreover, six of the incident reports originally reported that

the medical code 2 was called at 3:40 p.m., not 3:44 p.m. as

14 LEMIRE V . CAL. DEP’T OF CORR.

Cahoon and Holliday contend. Wong later instructed officers

(including Chua and MTA Hak) to change the time in their

reports to 3:44 p.m., so that it coincided with the time that

Cahoon and Holliday had indicated in their reports. Several

other incident reports, however, remained unchanged and

stated that the medical code was called at 3:40 p.m.

Plaintiffs contend that this evidence supports a finding

that Cahoon and Holliday called the medical code at

3:40 p.m., and that MTA Hak did not arrive until five minutes

later, at 3:45 p.m., when St. Jovite was already on the floor.

They argue that Cahoon and Holliday waited five minutes

after discovering St. Jovite without providing any assistance.

The district court noted that although many of the incident

reports were altered to modify the time Cahoon placed the

medical code 2 call, “[t]he incident reports do not show that

Hak’s arrival time was changed.” The court therefore held

that “it is uncontroverted that Hak arrived as soon as the area

was secured.” The district court failed to note, however, that

(1) no incident reports besides those of Cahoon and Holliday

mentioned MTA Hak arriving as the door opened, and (2)

Chua, who actually opened the door, reported that Cahoon

and Holliday entered the cell initially upon arrival and

thereafter called the medical code. MTA Hak testified that

she believes she drove a golf cart to Building 8 in response to

the medical code, calling into question whether she could

have responded to the scene at 3:45 p.m., one minute after the

medical code was called at 3:44 p.m., as Defendants contend.

There are, therefore, factual disputes as to whether Cahoon

and Holliday opened the cell door and found St. Jovite laying

unconscious before calling the medical code, when the

medical code 2 call was placed, and when MTA Hak arrived

at the scene.

LEMIRE V . CAL. DEP’T OF CORR. 15

Starting with MTA Hak, a succession of medical

personnel arrived, each briefly assessing St. Jovite and then

deferring to the next to arrive. Other custodial staff members

– Defendants Wong, Sergeant Cheryl Orrick, Sergeant Gale

Martinez, Officer Alfredo Alcaraz, and non-defendant Officer

N. Soliz – arrived intermittently. According to MTA Hak, she

arrived at the scene at 3:45 p.m., and remembers the officers

standing around. MTA Hak testified that she unsuccessfully

checked for a pulse, observed that St. Jovite was purplish in

color and that his feet were cold, and believed that he had

gone into rigor mortis. MTA Hak then began applying an

automated external defibrillator (AED) on St. Jovite by

sticking patches on his chest. As she did so, Registered Nurse

Gregory Hill (RN Hill) arrived at approximately 3:48 p.m.7

The AED produced a flat line, and MTA Hak stepped aside

to allow RN Hill to examine St. Jovite. RN Hill noted that St.

Jovite had a purplish color on his face, chest, and right

shoulder, found no pulse, and noted that his eyes were

dilated.

Wade, who arrived at around the same time as MTA Hak,

proceeded to secure Building 8 and later stepped outside to

provide coverage for the code 3 ambulance. Martinez testified

that, when she arrived at the scene, MTA Hak was standing

by the cell door. Martinez did not perform CPR because

medical personnel were present and custodial staff do not

interfere with medical staff. Orrick arrived at the scene and

took on the role of incident scribe. Orrick did not perform

CPR because medical staff were present. Wong arrived

sometime later and testified that when he arrived, nothing was

being done to St. Jovite. Everyone was standing around,

trying to get a response from St. Jovite by talking to him.

7

RN Hill is no longer a defendant in this action.

16 LEMIRE V . CAL. DEP’T OF CORR.

Wong, like Martinez and Orrick, did not perform CPR or

order someone else to perform CPR because medical staff

were present. Alcaraz arrived and, as a security and

investigations officer, documented the scene by taking

pictures.

Defendant Supervising Registered Nurse Dorothy Hicks

(SRN Hicks) was the next medical staff member to arrive, but

it is unclear when she did so. SRN Hicks likely arrived at the

scene sometime within the fifteen minute window between

3:50 p.m. and 4:05 p.m. According to SRN Hicks, when she

arrived, MTA Hack, RN Hill, and the other responders “were

standing around [St. Jovite] and nothing was being done.”

SRN Hicks found that St. Jovite “had severe bluish

discoloration from the nipple line up; there was no

spontaneous respirations; his pupils were fixed and dilated;

and there was no carotid pulse.” SRN Hicks also determined

that “[t]here was no lividity or rigor mortis. . . . So [St.

Jovite’s death] was pretty recent.” SRN Hicks nevertheless

determined that death was irreversible.

When Dr. Noriega arrived, MTA Hak and SRN Hicks

were standing over St. Jovite. SRN Hicks deferred to Dr.

Noriega, who also determined that St. Jovite was dead and

beyond revival, although he did not pronounce St. Jovite

dead. Paramedics from Vaca Valley Hospital arrived at

approximately 4:09 p.m. and began CPR on St. Jovite, along

with other attempts to revive him. These attempts were

unsuccessful, and St. Jovite was pronounced dead by Dr. H.

Zimmerman from Vaca Valley Hospital via phone at

4:29 p.m.

In Coleman, the court issued an order to the CDCR

requiring that a policy be implemented requiring custodial

LEMIRE V . CAL. DEP’T OF CORR. 17

staff to provide immediate life support to inmates until

medical staff arrives. Coleman, No. 90-00520, Doc. No. 1668

at 1–2 (E.D. Cal. June 9, 2005). In response, the CDCR

amended its CPR policy and implemented it through a memo

authored by Director John Dovey (“the Dovey Memo”). The

Dovey memo provided that:

All peace officers who respond to a medical

emergency are mandated . . . to provide

immediate life support, if trained to do so,

until medical staff arrives to continue life

support measures. . . . A Correctional Peace

Officer’s initiation of life support does not

relieve responding medical personnel of their

responsibility to assume life saving efforts

upon arrival. Responding medical personnel

shall assume primary responsibility in the

provision of medial attention and life saving

efforts upon their arrival. The combined

efforts of both custody and medical personnel

are expected. Both custody and medical

personnel are responsible to continue life

saving efforts in unison as long as necessary.

Defendant Tom Carey was the warden at CSP-Solano

from July 2001 to March 31, 2006, and was replaced by

Defendant D.K. Sisto on May 9, 2006, one day prior to this

incident. In a declaration to the Coleman court in January

2007, Carey averred that 99.9% of CSP-Solano’s designated

employees had been trained in the performance of CPR and

all but forty-one had received training on the amended CPR

policy. Following St. Jovite’s death, it was determined that

MTA Hak and RN Hill “need[ed] instruction as to immediate

implementation of CPR even when there are no signs of life.

18 LEMIRE V . CAL. DEP’T OF CORR.

Training was completed 5/11/06,” one day after St. Jovite’s

death. Defendant Dr. Alvaro Traquina was the Chief Medical

Officer at CSP-Solano and was responsible for ensuring that

medical staff was properly trained and certified in providing

medical care, including life saving measures such as CPR.

II. Discussion

A district court’s grant of summary judgment in a § 1983

action is reviewed de novo. See Pinard v. Clatskanie School

Dist. 6J, 467 F.3d 755, 763 (9th Cir. 2006). We must

determine “whether, viewing the evidence in the light most

favorable to the non-moving party, there are genuine issues

of material fact and whether the district court correctly

applied the relevant substantive law.” Lopez v. Smith,

203 F.3d 1122, 1131 (9th Cir. 2000) (en banc). “An issue of

material fact is genuine ‘if there is sufficient evidence for a

reasonable jury to return a verdict for the non-moving party.’”

Thomas v. Ponder 611 F.3d 1144, 1150 (9th Cir. 2010)

(quoting Long v. Cnty. of Los Angeles, 442 F.3d 1178, 1185

(9th Cir. 2006)).

For an inmate to bring a valid § 1983 claim against a

prison official for a violation of the Eighth Amendment, he

must first “objectively show that he was deprived of

something ‘sufficiently serious.’” Foster v. Runnels, 554 F.3d

807, 812 (9th Cir. 2009) (quoting Farmer v. Brennan,

511 U.S. 825, 834 (1994)). “A deprivation is sufficiently

serious when the prison official’s act or omission results ‘in

the denial of the minimal civilized measure of life’s

necessities.’” Id. (quoting Farmer, 511 U.S. at 834).

Next, the inmate must “make a subjective showing that

the deprivation occurred with deliberate indifference to the

LEMIRE V . CAL. DEP’T OF CORR. 19

inmate’s health or safety.” Foster, 554 F.3d at 812. To satisfy

this subjective component of deliberate indifference, the

inmate must show that prison officials “kn[e]w[] of and

disregard[ed]” the substantial risk of harm, but the officials

need not have intended any harm to befall the inmate; “it is

enough that the official acted or failed to act despite his

knowledge of a substantial risk of serious harm.” Farmer,

511 U.S. at 837, 842.

Finally, plaintiffs alleging deliberate indifference must

also demonstrate that the defendants’ actions were both an

actual and proximate cause of their injuries. See Conn v. City

of Reno, 591 F.3d 1081, 1098–1101 (9th Cir. 2010), vacated

by 131 S. Ct. 1812 (2011), reinstated in relevant part

658 F.3d 897 (9th Cir. 2011).

Vicarious liability may not be imposed on a supervisor for

the acts of lower officials in a § 1983 action. Fayle v. Stapley,

607 F.2d 858, 862 (9th Cir. 1979). A prison official in a

supervisory position may be held liable under § 1983,

however, “if he or she was personally involved in the

constitutional deprivation or a sufficient causal connection

exists between the supervisor’s unlawful conduct and the

constitutional violation.” Lolli v. Cnty. of Orange, 351 F.3d

410, 418 (9th Cir. 2003) (quoting Jackson v. City of

Bremerton, 268 F.3d 646, 653 (9th Cir. 2001)). This causal

connection can include: “1) [the supervisors’] own culpable

action or inaction in the training, supervision, or control of

subordinates; 2) their acquiescence in the constitutional

deprivation of which a complaint is made; or 3) [their]

conduct that showed a reckless or callous indifference to the

rights of others.” Cunningham v. Gates, 229 F.3d 1271, 1292

(9th Cir. 2000).

20 LEMIRE V . CAL. DEP’T OF CORR.

Parents and children may assert Fourteenth Amendment

substantive due process claims if they are deprived of their

liberty interest in the companionship and society of their child

or parent through official conduct. Wilkinson v. Torres,

610 F.3d 546, 554 (9th Cir. 2010) (citing Curnow ex rel.

Curnow v. Ridgecrest Police, 952 F.2d 321, 325 (9th Cir.

1991)); see also Moreland v. Las Vegas Metro. Police Dep’t,

159 F.3d 365, 371 (9th Cir. 1998). “[O]nly official conduct

that ‘shocks the conscience’ is cognizable as a due process

violation.” Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir.

2008) (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833,

846 (1998)). Just as the deliberate indifference of prison

officials to the medical needs of prisoners may support Eighth

Amendment liability, such indifference may also “rise to the

conscience-shocking level” required for a substantive due

process violation. Lewis, 523 U.S. at 849–50. A prison

official’s deliberately indifferent conduct will generally

“shock the conscience” so as long as the prison official had

time to deliberate before acting or failing to act in a

deliberately indifferent manner. See Tennison v. City and

Cnty. of San Francisco, 570 F.3d 1078, 1089 (9th Cir. 2009);

Porter v. Osborn, 546 F.3d 1131, 1138 (9th Cir. 2008).

A. Removal of Floor Officers

Plaintiffs contend that by removing the floor officers from

Building 8 for several hours during the middle of the day,

Defendants Sisto, Neuhring, Wong, Martinez, and Orrick

(“Supervisory Defendants”) deprived St. Jovite of the

availability of “medical or mental health treatment” and

“meaningful supervision protecting him from harm,” both of

which were sufficiently serious deprivations to form the basis

of an Eighth Amendment violation.

LEMIRE V . CAL. DEP’T OF CORR. 21

The district court did not evaluate the objective

“sufficiently serious” prong, see above at 18, instead ending

its analysis after determining that Defendants’ actions in

removing the floor officers did not satisfy the subjective

“deliberate indifference” prong. The district court held that

“[e]ven assuming that each of [the Supervisory] Defendants

was responsible for the removal decision, the record is devoid

of evidence from which it can reasonably be inferred that any

Defendant knew the removal would subject St. Jovite to a

substantial health or safety risk,” and further, that “there [is

no] evidence in the record from which it can be reasonably

inferred that the removal created an ‘obvious’ risk of harm to

St. Jovite.”(citing Thomas, 611 F.3d at 1150). We disagree

with respect to Defendants Sisto and Neuhring, but we affirm

with respect to Defendants Wong, Martinez and Orrick.

1. Sufficiently Serious Prong

In a failure to protect claim, an inmate satisfies the

“sufficiently serious deprivation” requirement by “show[ing]

that he is incarcerated under conditions posing a substantial

risk of serious harm.” Farmer, 511 U.S. at 834. The objective

question of whether a prison officer’s actions have exposed

an inmate to a substantial risk of serious harm is a question of

fact, and as such must be decided by a jury if there is any

room for doubt. Conn, 591 F.3d at 1095 (holding that the

objective question of whether there was a substantial risk that

an arrestee might commit suicide should be decided by a

jury); see also Bishop v. Hackel, 636 F.3d 757, 766 (6th Cir.

2011); Howard v. Waide, 534 F.3d 1227, 1237 (10th Cir.

2008).

Inadequate staffing can create an objective risk of

substantial harm in a prison setting that is sufficient to satisfy

22 LEMIRE V . CAL. DEP’T OF CORR.

the objective prong of the deliberate indifference test. See

Hoptowit v. Ray, 682 F.2d 1237, 1251 (9th Cir. 1982),

abrogated on other grounds by Sandin v. Conner, 515 U.S.

472 (1995). “[H]aving stripped [inmates] of virtually every

means of self-protection and foreclosed their access to

outside aid, the government and its officials are not free to let

the state of nature take its course.” Farmer, 511 U.S. at 833.

Morever, in order to satisfy the objective prong, it is enough

for the inmate to demonstrate that he was exposed to a

substantial risk of some range of serious harms; the harm he

actually suffered need not have been the most likely result

among this range of outcomes. See Gibson v. Cnty. of

Washoe, Nev., 290 F.3d 1175, 1193 (9th Cir. 2002). “[I]t does

not matter whether the risk comes from a single source or

multiple sources, any more than it matters whether a prisoner

faces an excessive risk . . . for reasons personal to him or

because all prisoners in his situation face such a risk.”

Farmer, 511 U.S. at 843. Therefore, it is relevant here that St.

Jovite was not just exposed to a risk of suicide, but also to the

risk of harm from other mentally ill inmates in Building 8,

including his cell mate.8

Plaintiffs have established a triable issue of fact as to

whether the withdrawal of all floor staff from Building 8 for

up to three and a half hours created an objectively substantial

risk of harm to the unsupervised inmates in Building 8. At

CSP-Solano, as in most prisons, inmate suicides and violence

8

St. Jovite’s cell mate Harden, for example, suffered from a bi-polar

disorder. In their reply brief, Plaintiffs suggest for the first time the

possibility that St. Jovite was actually killed by Harden, rather than having

committed suicide. Regardless of whether this theory of the case was

properly raised, its plausibility further emphasizes the dangers that St.

Jovite was exposed to by the extended lack of supervision at Building 8

on the day of his death.

LEMIRE V . CAL. DEP’T OF CORR. 23

are the primary dangers floor officers are charged with

preventing. As described above, these problems were acute at

CSP-Solano. Floor staff, supervisors, and Plaintiffs’ expert

witness (a former prison warden with decades of experience

in the field), provided sworn statements or testimony that

inmates should not be left without supervision for extended

periods of time. Floor officers’ Post Orders required them to

conduct security checks and searches of inmates and cells on

no less than an hourly basis during daytime watches, and to

do so on an irregular schedule designed to ensure that inmates

could not anticipate when they might be observed. None of

the prison officials who were deposed indicated that a three-

hour-plus absence of floor staff during the day would be

permissible. On such a record a reasonable jury could find

that the withdrawal of all floor officers posed a substantial

risk that some inmate would come to harm, either self-

inflicted or otherwise, and that an inmate suffering such harm

would not receive swift medical attention as a result of the

inadequate staffing.

The danger posed to Building 8’s inmates by the

withdrawal of all supervisory floor staff for up to three and a

half hours was exacerbated by the fact that most of the

inmates at Building 8 were mentally ill. A jury could infer

that unsupervised mentally ill inmates housed together are

more likely to harm themselves or others than are inmates in

the regular prison population. There was evidence that would

support such an inference. Plaintiffs’ expert opined that

mentally ill CCCMS inmates in Building 8 should not be left

unsupervised for more than 30 minutes, explaining that

CCCMS inmates “can have a need for staff response in a

moment’s notice, and the staff need[s] to be there to respond

and especially so if it’s a life/health/safety issue. . . . The

Control Booth Officer on whom the Wardens rely in

24 LEMIRE V . CAL. DEP’T OF CORR.

removing the floor staff, is too far removed from direct

contact and surveillance of CCCMS inmates.” In reaching

this conclusion, Plaintiffs’ expert was informed by the ACA’s

standards and CDCR regulations. Although such standards do

not set the constitutional minimum for prison conditions, a

jury could consider these guidelines in determining whether

the circumstances on May 10, 2006 at Building 8 presented

an objectively substantial risk that one of the mentally ill

inmates there might suffer serious harm as a result being left

unsupervised for an extended period of time. See Hoptowit,

682 F.2d at 1249 (noting that the state standards, though not

establishing the constitutional minimum, are “relevant

evidence” of whether prison conditions violate the Eighth

Amendment).

The State, however, argues that because Building 8 was

often without a floor officer for one and a half hours during

the graveyard shift, the three and a half hour lack of

supervision during the daytime shifts did not constitute a

substantial risk of serious harm to the CCCMS inmates in

Building 8. Even assuming, without deciding, that CSP-

Solano’s practices at Building 8 during the graveyard shift

were safe or reasonable, it does not follow that the same

practices were safe or reasonable during the daytime watches

or, more to the point, that a jury could not reasonably

conclude to the contrary. Under CSP-Solano’s staffing

practices, Building 8 is required to be staffed by one control

booth operator and two floor officers during the daytime

watches, but only one control booth operator and a single

floor officer, who is also responsible for monitoring a second

building, during the graveyard shift. A jury could reasonably

infer that CSP-Solano officials recognized a general need for

additional security during the day, and that the reason for

providing less security at night is that inmates are less of a

LEMIRE V . CAL. DEP’T OF CORR. 25

danger to themselves during the graveyard shift and that more

supervision is required during daylight hours.

In sum, Plaintiffs have established a triable issue of fact

as to whether the withdrawal of all floor staff from Building

8 for up to three and a half hours created an objectively

substantial risk of harm to the unsupervised inmates in

Building 8.

2. Deliberate Indifference Prong

As a preliminary matter, we must first address Plaintiffs’

contention that the district court misapplied the “deliberate

indifference” standard by discussing only whether the

Supervisory Defendants knew that the removal decision

posed a serious risk of harm to St. Jovite specifically. Instead,

Plaintiffs argue that the proper question is whether the

decision to remove the floor staff from Building 8 posed a

serious risk of substantial harm to any prisoner.

Plaintiffs are correct. The appropriate inquiry was

whether the Supervisory Defendants were aware that

removing all floor officers from Building 8 for over three and

a half hours would pose a substantial risk of serious harm to

someone in St. Jovite’s situation, not simply whether they

were subjectively aware of St. Jovite’s specific medical

needs. See Gibson, 290 F.3d at 1191 (“We note that the

question of whether the County policies violated Gibson’s

rights does not hinge on whether County policymakers knew

that the County’s policies would pose a substantial risk of

serious harm to Gibson, in particular. As long as a jury can

infer that the policymakers knew that their policy of not

screening certain incoming detainees would pose a risk to

someone in Gibson’s situation, we must reverse the summary

26 LEMIRE V . CAL. DEP’T OF CORR.

judgment in favor of the County.”); see also Farmer,

511 U.S. at 843–44; Redman v. Cnty. of San Diego, 942 F.2d

1435, 1435, 1448 (9th Cir. 1991) (en banc).

This subjective inquiry involves two parts. First, Plaintiffs

must demonstrate that the risk was obvious or provide other

circumstantial or direct evidence that the prison officials were

aware of the substantial risk to the Building 8 inmates’ safety.

Thomas, 611 F.3d at 1150. Second, they must show that there

was no reasonable justification for exposing the inmates to

the risk. Id. Both of these inquiries are fact-intensive and

typically should not be resolved at the summary judgment

stage; as the Supreme Court has explained, “[w]hether a

prison official had the requisite knowledge of a substantial

risk is a question of fact subject to demonstration in the usual

ways, including inference from circumstantial evidence, and

a factfinder may conclude that a prison official knew of a

substantial risk from the very fact that the risk was obvious.”

Farmer, 511 U.S. at 842 (citation omitted); see Conn,

591 F.3d at 1097; Thomas, 611 F.3d at 1152; Gibson,

290 F.3d at 1190–91. Applying the correct subjective inquiry

here, we hold that Plaintiffs created a triable issue of fact as

to whether Defendants Sisto and Neuhring are liable for St.

Jovite’s death under the subjective component of the

deliberate indifference test. We affirm, however, with respect

to Defendants Wong, Martinez and Orrick because they did

not act unreasonably under the circumstances.

a. Neuhring and Sisto

First, Plaintiffs have presented sufficient evidence from

which a jury could conclude that Neuhring and Sisto were

both aware of the risks posed by withdrawing all floor

officers from Building 8 for over three hours. A jury could

LEMIRE V . CAL. DEP’T OF CORR. 27

find the risks of leaving mentally ill inmates unsupervised for

over three hours to be obvious. Moreover, obviousness is not

measured by what is obvious to a layman, but rather by what

would be obvious “in light of reason and the basic general

knowledge that a prison official may be presumed to have

obtained regarding the type of deprivation involved.”

Thomas, 611 F.3d at 1151. The Coleman litigation was well

known in penological circles and to officials at CSP-Solano.

That litigation specifically alerted prison officials to the acute

problem of inmate suicides in CDCR prisons, including CSP-

Solano.

Even without this background, the record contains

circumstantial evidence from which a reasonable jury could

conclude that Sisto and Nuehring were aware of the risks.

This case is similar in many ways to our decision in Gibson,

290 F.3d 1175. In Gibson, we held that the county was not

entitled to summary judgment as to whether its policy of

delaying mental health screenings for recently arrested,

combative detainees was deliberately indifferent to the

possibility that some combative mentally ill detainee might

suffer harm as a result of being jailed without receiving an

immediate screening. See id. at 1190. We found that a triable

issue of deliberate indifference existed in light of

circumstantial evidence that: (1) jail officials knew that some

combative detainees suffer from mental illness, (2) the jail

had policies demonstrating its awareness that such mentally

ill individuals sometimes require care urgently, and (3) the

jail had abandoned a previous practice designed to address

this need. Id. at 1190–91.

Similarly, here, Sisto and Neuhring were aware that the

majority of the inmates in Building 8 were CCCMS inmates

and used psychotropic “heat meds.” The Post Orders for

28 LEMIRE V . CAL. DEP’T OF CORR.

Building 8 floor staff state that prevention of, and immediate

response to, suicide attempts is a “primary” duty of floor

staff, and therefore require floor officers to continuously

circulate on an irregular schedule in between formal searches

and security checks. Neuhring described this continuous

supervision as “necessary” to protect the safety and security

of the inmates. Finally, on the day of St. Jovite’s death, the

evidence shows that Sisto and Neuhring failed to follow these

policies. Just as in Gibson, here a jury could conclude from

these facts that Sisto and Neuhring were aware that their

actions would result in a substantial risk of harm to inmates

such as St. Jovite.

With respect to Sisto, the State argues that he was

unaware of the meetings, and notes that there is no

respondeat superior liability under § 1983. Although the

State’s statement of the law is correct, its description of the

facts is not. The State disregards the fact that Neuhring said

that staff meetings involving all floor officers could not have

occurred without approval by the Warden. This is sufficient

to create a disputed question of fact as to whether Sisto

authorized these particular staff meetings and whether he

was, therefore, deliberately indifferent to the risks they

created. See Redman, 942 F.2d at 1447 (finding a

subordinate’s testimony that he acted under the direction of

a superior sufficient to create a triable issue of fact as to the

supervisor’s § 1983 liability).

Second, Plaintiffs presented sufficient evidence for a jury

to conclude that there was no reasonable justification for the

decision to withdraw all floor officers from Building 8 for

over three hours without putting in place any plan to ensure

inmate safety. A prison official’s justification for exposing

inmates to a substantial risk of harm is reasonable only if it

LEMIRE V . CAL. DEP’T OF CORR. 29

represents a proportionate response to the penological

circumstances in light of the severity of the risk to which the

inmates are exposed. See Thomas, 611 F.3d at 1154–55.

Except in emergency situations, a failure to consider

reasonable alternatives is strong evidence that a prison

official’s actions were unreasonable. Id. at 1155.

The record would allow a jury to conclude that there was

no emergency at CSP-Solano on May 10, 2006, and that there

was no other reasonable explanation for conducting back-to-

back, 90-minute staff meetings, thus leaving the inmates in

Building 8 unsupervised for over three hours. Neuhring

stated that staff meetings should not – and did not – typically

exceed 45 minutes because “we’re cognizant [when holding

staff meetings] of the fact that we have both [floor] staff out

of the housing units.” Yet, although some evidence suggests

that the staff meetings concerned the subject of an assault on

a guard at another prison, Neuhring himself could not recall

their purpose. This would permit a jury to infer that the

meetings were not a response to an unprecedented crisis.

The record also demonstrates that other alternatives to the

lengthy staff meetings were readily available. Neuhring

himself explained that when he was a sergeant he would

frequently disseminate critical information to floor officers by

“pull[ing] them all out to the yard, the center of the yard, for

10 or 15 minutes to go over whatever is occurring.”

Furthermore, even assuming, arguendo, that there was some

justification for conducting a one and a half hour staff

meeting with each watch, the record contains no explanation

why it was necessary to stack two such staff meetings back-

to-back, thereby doubling the amount of time that the inmates

30 LEMIRE V . CAL. DEP’T OF CORR.

were left unsupervised.9 In short, a jury could conclude that

Neuhring and Sisto (assuming he approved of the meetings)

lacked any reasonable basis for calling consecutive staff

meetings that left the inmates of Building 8 unsupervised for

over three hours on the afternoon of St. Jovite’s death.

b. Wong, Martinez, and Orrick

Lieutenant Wong and Sergeant Martinez were the

supervising officers in Building 8 at the time of the staff

meetings. Sergeant Orrick was the supervising officer at a

different building at CSP-Solano. For the same reasons that

there is a triable issue of fact as to whether Sisto and

Neuhring were aware of the objective risk posed by

withdrawing all floor officers from Building 8 for up to three

and a half hours, Plaintiffs also created a triable issue of fact

as to whether Wong, Martinez, and Orrick were aware of the

risks posed by the staff meetings.

Plaintiffs have not, however, created a triable issue of fact

as to whether Wong, Martinez and Orrick’s actions were

reasonably justified. With respect to Orrick, there is no doubt

that her actions were reasonable. She was staffed at an

entirely different building and, therefore, it was not

unreasonable for her to fail to take any action at Building 8.

9

The State argues, without citation, that the decision to convene the staff

meetings in this fashion “is entitled to deference.” Even if we generally

owe deference to prison officials’ day-to-day determinations of

penological necessity, see, e.g., Turner v. Safley, 482 U.S. 78, 84–85

(1987), such deference is unjustified under these circumstances in which

the prison official in question cannot recall the purpose of the staff

meetings and fails to explain his reasoning or how his decision was

consistent with his prior practice regarding staff meetings, cf. Skidmore v.

Swift & Co., 323 U.S. 134, 140 (1944).

LEMIRE V . CAL. DEP’T OF CORR. 31

Accordingly, we affirm the district court’s grant of summary

judgment in her favor.

The issue is closer in the cases of Wong and Martinez.

They were the officers responsible for ensuring that floor

officers were performing their duties at Building 8 on the day

of St. Jovite’s death. Nonetheless, under these unique

circumstances, in which Captain Neuhring ordered the floor

staff supervised by Wong and Martinez to attend the staff

meetings without allowing Wong and Martinez time to make

alternative staffing arrangements, no reasonable jury could

conclude that Wong and Martinez acted unreasonably.

3. Causation

“If reasonable persons could differ” on the question of

causation then “summary judgment is inappropriate and the

question should be left to a jury.” White, 901 F.2d at 1506;

see Conn, 591 F.3d at 1100. The State does not contend that

Plaintiffs failed to create a triable issue of fact regarding

actual or proximate causation with respect to the failure to

protect claim, assuming that Defendants were deliberately

indifferent to the risks posed by withdrawing all floor staff

from Building 8.

The State is right not to do so. As a practical matter,

plaintiffs who have already demonstrated a triable issue of

fact as to whether prison officials exposed them to a

substantial risk of harm, and who actually suffered precisely

the type of harm that was foreseen, will also typically be able

to demonstrate a triable issue of fact as to causation. See, e.g.,

Conn, 591 F.3d at 1098–1101; White v. Roper, 901 F.2d

1501, 1505 (9th Cir. 1990). That is the case here. Just as the

jury could conclude that Sisto and Neuhring were deliberately

32 LEMIRE V . CAL. DEP’T OF CORR.

indifferent to the risks that an inmate would be seriously

harmed during a three-hour-plus period without supervision,

so too could the jury conclude that such harm could have

been prevented with adequate supervision.

Accordingly, we hold that summary judgment should not

have been granted to Defendants Neuhring and Sisto with

respect to Plaintiffs’ claims that the withdrawal of all floor

officers from Building 8 for over three hours violated St.

Jovite’s Eighth Amendment right to be free from cruel and

unusual punishment. To be sure, a jury could reasonably find

in favor of these Defendants, but at this stage, it matters only

that there is a genuine issue of material fact as to these

claims, such that summary judgment should not have been

granted. Similarly, because Plaintiffs created a triable issue of

fact as to whether Neuhring and Sisto acted with deliberate

indifference to St. Jovite’s safety, and because their decision

to convene the staff meetings was made with time to

deliberate, summary judgment should not have been granted

with respect to Plaintiffs’ substantive due process claims

against Neuhring and Sisto. See Lewis, 523 U.S. at 849–50;

Tennison, 570 F.3d at 1089.

B. Failure to Administer CPR or Other Life-Saving

Measures

The district court granted summary judgment to

Defendants Cahoon, Holliday, Wade, Alcaraz, Chua, Wong,

Martinez, and Orrick, with respect to Plaintiffs’ failure to

administer CPR claim, concluding that each “deferred to the

judgment of the medical staff members concerning whether

CPR or other life-saving measures should be used on St.

Jovite.” The district court held that these Defendants

reasonably relied on the medical staff and therefore did not

LEMIRE V . CAL. DEP’T OF CORR. 33

act with deliberate indifference to the medical needs of St.

Jovite. As to MTA Hak, who was the first medical officer to

arrive at the scene, the district court held that the evidence did

not show that she was subjectively aware that St. Jovite could

be revived before she stepped aside to allow RN Hill to assess

St. Jovite. The district court further concluded that SRN

Hicks and Dr. Noriega performed a medical assessment on St.

Jovite and determined that he could not be revived and that

Plaintiffs did not provide any evidence indicating that this

assessment was inaccurate. The court concluded, therefore,

that they did not act with deliberate indifference.

“To set forth a constitutional claim under the Eighth

Amendment predicated upon the failure to provide medical

treatment, first the plaintiff must show a serious medical need

by demonstrating that failure to treat a prisoner’s condition

could result in further significant injury or the unnecessary

and wanton infliction of pain. Second, a plaintiff must show

the defendant’s response to the need was deliberately

indifferent.” Conn, 591 F.3d at 1094–95 (internal quotation

marks and citation omitted). The “deliberate indifference”

prong requires “(a) a purposeful act or failure to respond to a

prisoner’s pain or possible medical need, and (b) harm caused

by the indifference.” Jett v. Penner, 439 F.3d 1091, 1096 (9th

Cir. 2006); Conn, 591 F.3d at 1095 (quoting Jett, 439 F.3d at

1096). “Indifference may appear when prison officials deny,

delay or intentionally interfere with medical treatment, or it

may be shown in the way in which prison [officials] provide

medical care.” Jett, 439 F.3d at 1096 (citations and internal

quotations marks omitted). “[T]he indifference to [a

prisoner’s] medical needs must be substantial. Mere

‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not

support this [claim].” Broughton v. Cutter Labs., 622 F.2d

458, 460 (9th Cir. 1980) (citing Estelle v. Gamble, 429 U.S.

34 LEMIRE V . CAL. DEP’T OF CORR.

97, 105–06 (1976)). Even gross negligence is insufficient to

establish deliberate indifference to serious medical needs.

Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990).

1. Sufficiently Serious Prong

Plaintiffs must show that St. Jovite had an objectively

serious medical need. Conn, 591 F.3d at 1095. St. Jovite was

found in his cell unconscious and not breathing. Defendants

properly do not dispute that the medical need here was a

serious one.

2. Deliberate Indifference Prong

Plaintiffs alleging an Eighth Amendment claim based

upon the failure to provide medical treatment must also show

that Defendants “were (a) subjectively aware of the serious

medical need and (b) failed to adequately respond.” Conn,

591 F.3d at 1096 (emphasis in original).

a. Cahoon and Holliday

The third watch floor officers, Cahoon and Holliday, were

the first of the prison personnel to arrive at St. Jovite’s cell.

Drawing all inferences in favor of Plaintiffs, as we must, it

could be found that St. Jovite’s cellmate began yelling “man

down” and “my cell[mate] hung himself” between 3:10 and

3:30 p.m. In response, Cahoon and Holliday generally went

to St. Jovite’s cell, opened the cell, discovered St. Jovite

unconscious, and called a medical code 2 alarm. However, it

is unclear from the record exactly what occurred during the

time from when Cahoon and Holliday heard the “man down”

call until Cahoon called a medical code 2 alarm at 3:40 p.m.

Cahoon did order that Holliday get a cut-down kit and CPR

LEMIRE V . CAL. DEP’T OF CORR. 35

mask during that time, but it is unclear why he did so as

St. Jovite’s body was already on the floor when they arrived

and both guards were required to carry CPR masks on their

persons at all times.

MTA Hak, the first medical staff to respond to the call,

did not arrive at the scene until 3:45 p.m., and when she did,

both Cahoon and Holliday were standing near St. Jovite but

not providing any aid. A jury could reasonably thus conclude

that Cahoon and Holliday delayed administering aid to St.

Jovite, while St. Jovite was unconscious, unresponsive, and

purplish in color on the floor. Both Cahoon and Holliday (1)

were informed that St. Jovite “hung himself,” (2) observed a

“noose” around his neck, and (3) attempted to speak to St.

Jovite to get his attention. However, Cahoon called a medical

code 2 and ordered Holliday to retrieve the cut-down kit and

CPR mask from the control booth.

As other circuits have held, failing to provide CPR or

other life-saving measures to an inmate in obvious need can

provide the basis for liability under § 1983 for deliberate

indifference. See McRaven v. Sanders, 577 F.3d 974, 983 (8th

Cir. 2009) (“An officer trained in CPR, who fails to perform

it on a prisoner manifestly in need of such assistance, is liable

under § 1983 for deliberate indifference.”); Jones v. City of

Cincinnati, 521 F.3d 555, 560 (6th Cir. 2008) (“The

complaint alleges that each of the officers present . . . knew

that the handcuffed [prisoner] was not breathing. Therefore

each knew of a substantial risk of serious harm to Jones’s

safety while he was in their custody and disregarded that risk

by failing to provide aid.”); Bozeman v. Orum, 422 F.3d

1265, 1273 (11th Cir. 2005) (“We also conclude that the

Officers, who knew [the prisoner] was unconscious and not

breathing and who then failed for fourteen minutes to check

36 LEMIRE V . CAL. DEP’T OF CORR.

[his] condition, call for medical assistance, administer CPR

or do anything else to help, disregarded the risk facing [him]

in a way that exceeded gross negligence.”); Tlamka v. Serrell,

244 F.3d 628, 633 (8th Cir. 2001) (“[F]ailure to act given the

patent nature of [the inmate’s] condition, considering the

officers’ ability to provide CPR, is conduct sufficiently severe

to evidence an Eighth Amendment violation.”).

This court has previously held that officers’ actions in

failing to administer CPR to a prisoner did not necessarily

amount to deliberate indifference. In Cartwright v. City of

Concord, 856 F.2d 1437 (9th Cir. 1988), a pretrial detainee

committed suicide while in city custody. Plaintiffs sued the

officers and the city, arguing that the officers should have

administered CPR during the five to seven minutes it took for

the ambulance to arrive. Id. at 1438. We held that the officers

were not deliberately indifferent because their “actions during

the few intervening minutes between discovery of Cartwright

– cutting him down, checking his vital signs, giving him aid

– and the arrival of the emergency medical crews was not

deficient.” Id. (internal quotation marks omitted); see also

Maddox v. City of Los Angeles, 792 F.2d 1408, 1415 (9th Cir.

1986) (“We have found no authority suggesting that the due

process clause established an affirmative duty on the part of

police officers to render CPR in any and all circumstances.”).

The facts in the present case differ from those in

Cartwright and Maddox, however. According to Plaintiffs’

version of facts, Cahoon and Holliday did not fail to provide

CPR because they were busy with other tasks. Instead, they

allegedly took no life saving action while waiting for MTA

Hak to arrive. While the failure to provide CPR to a prisoner

in need does not create an automatic basis for liability in all

circumstances, a trier of fact could conclude that, looking at

LEMIRE V . CAL. DEP’T OF CORR. 37

the full context of the situation, officers trained to administer

CPR who nonetheless did not do so despite an obvious need

demonstrated the deliberate indifference required for an

Eighth Amendment claim.

b. MTA Hak

MTA Hak was the first medical staff member at the

scene. Arriving at St. Jovite’s cell at 3:45 p.m., she testified

that she checked for a pulse, observed that St. Jovite was

purplish in color and that his feet were cold, and believed that

he had gone into rigor mortis. MTA Hak then began applying

an AED on St. Jovite when RN Hill arrived. The AED

produced a flat line, and MTA Hak stepped aside to allow RN

Hill to examine St. Jovite. RN Hill noted that St. Jovite had

a purplish color on his face, chest, and right shoulder, found

no pulse, and noted that his eyes were dilated. MTA Hak

testified that according to these assessments, neither she nor

RN Hill provided CPR because they believed St. Jovite

beyond resuscitation. While this Court has held that it “may

not affirm [a] district court’s grant of summary judgment

simply on the basis of the defendants’ assertions as to their

own state of mind,” Conn, 591 F.3d at 1097 (quoting Farmer,

511 U.S. at 842), Plaintiffs have provided no evidence to

contradict MTA Hak’s statement that she believed St. Jovite

could not be revived through CPR. Further, when MTA Hak

arrived at the scene at 3:45 p.m., she did begin a medical

assessment, which was still in progress when RN Hill arrived

at approximately 3:48 p.m. This factual scenario is similar to

that in Cartwright. MTA Hak’s actions during the

approximately three minutes between her arrival at the scene

and the arrival of RN Hill, which included checking for a

pulse, observing St. Jovite’s physical appearance, and

38 LEMIRE V . CAL. DEP’T OF CORR.

applying an AED, did not constitute deliberate indifference

to St. Jovite’s condition. See Cartwright, 856 F.2d at 1438.

c. Wade, Alcaraz, Wong, Martinez, and Orrick

Plaintiffs argue that Defendants Wade, Alcaraz, Wong,

Martinez, and Orrick, all of whom arrived after the first

medical staff responded to the scene, acted with deliberate

indifference because they violated the Dovey Memo, which

required them to perform CPR and, although medical staff

were to take primary responsibility, “[b]oth custody and

medical personnel [were] responsible to continue life saving

efforts in unison as long as necessary.” Plaintiffs contend that

whether the decision to defer to medical staff was reasonable

is a question of fact for the jury. Nothing in the record,

however, supports a claim that Wade, Alcaraz, Wong,

Martinez, or Orrick “were (a) subjectively aware of the

serious medical need and (b) failed to adequately respond.”

Conn, 591 F.3d at 1096. Instead, these Defendants were

performing other functions, such as securing the scene or

documenting the incident, that were reasonable in light of the

fact that medical personnel were actively assessing St.

Jovite’s medical situation. It is not clear that their actions

violated the CPR policy, but even if they did, the violations

were not of a type that would tend to demonstrate deliberate

indifference because they were reasonably relying on the

actions of the medical responders who were already treating

St. Jovite. We affirm the district court’s grant of summary

judgment as to these Defendants on the claim stemming from

a failure to administer CPR. Wade, Alcaraz, Wong, Martinez,

and Orrick did not act with deliberate indifference toward St.

Jovite as they reasonably relied on the expertise of the

prison’s medical staff. See, e.g., Johnson v. Doughty,

433 F.3d 1001, 1010–11 (7th Cir. 2006).

LEMIRE V . CAL. DEP’T OF CORR. 39

3. Causation

We analyze causation only with respect to Defendants

Cahoon and Holliday in light of our holding that they are the

only defendants that a jury could find to have been

deliberately indifferent to St. Jovite’s medical situation.

Defendants argue that Plaintiffs have failed to establish that

St. Jovite would have benefitted or survived if he had been

provided CPR by one of the CSP-Solano officers. Three of

the medical staff that arrived on the scene – MTA Hak,

Noriega, and Hicks – determined that St. Jovite was beyond

resuscitation.

Viewing the evidence in the light most favorable to

Plaintiffs, however, a jury could reasonably determine that St.

Jovite was alive and capable of being revived if CPR had

been timely provided by Cahoon and Holliday. First, when

the Vaca Valley Hospital paramedics arrived over twenty

minutes after St. Jovite was discovered by Cahoon and

Holliday, they immediately administered CPR, and continued

to do so for almost twenty minutes before he was pronounced

dead. A jury could conclude that, if the paramedics believed

something could be done so long after St. Jovite was found

unconscious and not breathing, starting CPR earlier might

have had a benefit. Second, SRN Hicks testified that St.

Jovite could have died any time between six and thirty

minutes prior to the time she evaluated him. This suggests

that if Cahoon or Holliday had started CPR immediately,

which would have been anywhere between five to twenty-five

minutes before SRN Hicks arrived at the scene, St. Jovite

would not have been beyond revival at the time and therefore

might have survived. Drawing all reasonable inferences in

Plaintiffs’ favor, a jury could conclude that had Cahoon and

40 LEMIRE V . CAL. DEP’T OF CORR.

Holliday provided CPR immediately, St. Jovite might have

survived.

We therefore conclude that summary judgment should not

have been granted with respect to the alleged failure of

Defendants Cahoon and Holliday to provide medical care, but

we affirm the grant of summary judgment as to all other

Defendants on the medical care claims. Because there is a

triable issue of fact as to whether Cahoon and Holliday were

deliberately indifferent in failing to administer CPR and as to

whether their failure to do so caused St. Jovite’s death, there

is also a triable issue of fact as to whether their actions rose

to the conscience-shocking level required for a Fourteenth

Amendment substantive due process violation. Lewis,

523 U.S. at 849–50.

C. Failure to Train Staff

Plaintiffs allege that Carey and Tranquina should be held

liable as supervisors for failing to properly implement and

train the staff on the CPR policy. Plaintiffs note that MTA

Hak and RN Hill had not been trained on the CPR policy, and

that the custody officers were not aware of the requirement to

work in unison with medical staff in providing CPR, as

opposed to deferring to medical staff.

As noted above, a prison official in a supervisory position

may be held liable under § 1983 if he was personally

involved in the constitutional deprivation or a sufficient

causal connection exists between his unlawful conduct and

the constitutional violation. Lolli, 351 F.3d at 418. This

causal connection can include: “1) [the supervisor’s] own

culpable action or inaction in the training, supervision, or

control of subordinates; 2) their acquiescence in the

LEMIRE V . CAL. DEP’T OF CORR. 41

constitutional deprivation of which a complaint is made; or 3)

[their] conduct that showed a reckless or callous indifference

to the rights of others.” Cunningham, 229 F.3d at 1292; see

Starr v. Baca, 652 F.3d 1202, 1205–06 (9th Cir. 2011). “The

requisite causal connection can be established by setting in

motion a series of acts by others, or by knowingly refusing to

terminate a series of acts by others, which the supervisor

knew or should have known would cause others to inflict a

constitutional injury.” Starr, 652 F.3d at 1207–08 (internal

quotation marks, alterations, and citations omitted).

Here, the evidence is undisputed that Carey and

Tranquina complied with the order in Coleman and

implemented a CPR policy at CSP-Solano. Plaintiffs have

presented no evidence that either Carey or Tranquina were on

notice that staff at CSP-Solano were not complying with the

CPR policy, or that some staff were unaware of the policy.

While at least two staff members, MTA Hak and RN Hill,

were not trained on the policy until a day after St. Jovite died,

there is no evidence that Carey or Tranquina knew or had

reason to know of this lapse. See Farmer, 511 U.S. at 841

(supervisors liable only if on actual or constructive notice of

the need to train).

Plaintiffs also argue that the training provided was

deficient because it allowed custody staff to acquiesce to

medical staff once on the scene. Plaintiffs have offered no

evidence, however, that this interpretation of the Dovey

Memo is impermissible. Nor do they show that Carey was

deliberately indifferent in interpreting the policy in that way,

requiring custodial staff to provide CPR to inmates but to

allow medical staff to take primary responsibility once on the

scene. We affirm the grant of summary judgment as to Carey

and Tranquina on the failure to train claims.

42 LEMIRE V . CAL. DEP’T OF CORR.

III. Conclusion

We thus reverse with respect to the claim against

Defendants Sisto and Neuhring for withdrawal of the floor

officers and with respect to the claims based on the failure of

Defendants Cahoon and Holliday to administer CPR. We

conclude that there is a triable issue of fact as to whether

Sisto and Neuhring were deliberately indifferent to St.

Jovite’s safety and welfare when one or both decided to

convene two back-to-back staff meetings resulting in a lack

of supervision in Building 8 for a period of up to three and a

half hours. We also conclude that there is a triable issue of

fact as to whether Cahoon and Holliday were deliberately

indifferent to St. Jovite’s potentially serious medical need

when they failed to administer CPR prior to the arrival of

prison medical staff. We affirm with respect to the remaining

claims and defendants. We therefore vacate the summary

judgment as to the aforementioned claims against Defendants

Sisto, Neuhring, Cahoon, and Holliday, and remand for

further proceedings. The parties will bear their own costs on

appeal.

AFFIRMED in part; VACATED and REMANDED in

part.