holding that, to pursue an alternative theory of recovery at summary judgment, the plaintiffs must either plead the theory in their complaint or “make known during discovery their intention to pursue recovery on” the theory omitted from their complaint
How later courts described this case
- holding that, to pursue an alternative theory of recovery at summary judgment, the plaintiffs must either plead the theory in their complaint or “make known during discovery their intention to pursue recovery on” the theory omitted from their complaint
Written by the judges who cited it.
The opinion
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 12 2026
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHAWN R. PORIO, No. 25-1294
D.C. No.
Plaintiff - Appellant, 8:22-cv-00812-RGK-ADS
v. MEMORANDUM*
RN YVETTE BARBARI, Orange County
Nurses,
Defendant - Appellee,
and
CITY OF TUSTIN, ORANGE COUNTY
FIRE AUTHORITY, COUNTY OF
ORANGE, Officer IRINEO FLORES, No.
1392, Officer E. URIAS, No. 1324, Officer
CHRISTOPHER PETERSON, No. 1359,
Officer HAYDEN NEWMAN, No. 1341,
Officer MICHAEL WAGNER, No. 1313,
BRENT PARDOEN, OCFA No. 6933,
DAVID PHELAN, OCFA No. 6828,
JOSEPH WINGERT, Jr., OCFA No. 6959,
TED HWANG, OCFA No. 6959, RN
JENNIFER MAYA, Orange County Nurses,
DOES 1-10,
Defendants.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted April 20, 2026
Pasadena, California
Before: FRIEDLAND and MILLER, Circuit Judges, and VITALIANO, District
Judge.**
Plaintiff Shawn Porio brought 42 U.S.C. § 1983 claims against Orange
County (“the County”) and Yvette Barbari after he was arrested on suspicion of
driving under the influence of alcohol, when his erratic driving was actually caused
by a stroke.1 The jail intake medical screening conducted by Barbari, a nurse
employed by the County, failed to identify that Porio was experiencing a medical
emergency, and he was admitted to the jail. Porio was in custody for over 20 hours
before County jail staff sent him to the hospital. During that time, he experienced
at least one more stroke. Porio alleges that, as a result of the delay in treatment, he
suffered permanent brain damage from the strokes.
The district court granted summary judgment to the County, and the claim
against Barbari proceeded to trial. A first trial ended in a mistrial, with an evenly
**
The Honorable Eric N. Vitaliano, United States District Judge for the
Eastern District of New York, sitting by designation.
1
Porio’s First Amended Complaint originally included claims against other
defendants and an ADA claim. Those claims were dismissed and are not at issue
in this appeal.
2 25-1294
divided jury. The second trial ended in a verdict for Barbari.
Porio appeals the district court’s grant of summary judgment to the County,
and the post-trial judgment for Barbari. He challenges some evidentiary rulings as
well as the three hour per side time limit on the examination of witnesses that the
district court imposed during the second trial against Barbari.
“We review the district court’s grant of summary judgment de novo.”
Sandoval v. County of San Diego, 985 F.3d 657, 665 (9th Cir. 2021). “A district
court’s evidentiary rulings are reviewed for an abuse of discretion and will not be
reversed ‘unless the ruling is manifestly erroneous.’” Sidibe v. Sutter Health, 103
F.4th 675, 691 (9th Cir. 2024) (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136,
141-42 (1997)). We review “issues relating to the management of trial for an
abuse of discretion.” Gen. Signal Corp. v. MCI Telecomms. Corp., 66 F.3d 1500,
1507 (9th Cir. 1995).
1. The district court granted summary judgment to the County, reasoning
that Porio’s First Amended Complaint (“FAC”) had not put the County on notice
that he intended to pursue liability under Monell v. Department of Social Services
of City of New York, 436 U.S. 658 (1978), based on the County’s policies and
practices related to jail or nursing staff. But Porio’s FAC included statements that
satisfy the pleading requirements for a claim under Monell. See Fed. R. Civ. P.
3 25-1294
8(a)(2); Leatherman v. Tarrant Cnty. Narcotics Intel. & Coordination Unit, 507
U.S. 163, 168 (1993).
Porio’s FAC alleged that the County and its correctional healthcare
authority2 “fail[ed] to use lawful and appropriate policies, practices, and
procedures for arrestees and detainees who exhibit signs of mental[] impairment
that might be the result of a pathology such as a stroke rather than inebriation,” and
that they “acted with deliberate indifference, and in conscious and reckless
disregard to the . . . constitutional and statutory rights of Plaintiff . . . including the
right to prompt and adequate medical screening and attention.” The FAC also
“allege[d] that other policies, practices and customs as may be established through
discovery, are also the moving force or proximate cause of [his] constitutional
deprivations, including but not limited to, express authorization, ratification, failure
to train and failure to supervise.” During discovery, Porio requested that the
County “identify all policies, training memoranda and bulletins, department orders
and all other documents and writings through which Orange County and Orange
County Sheriff’s Department seek to inform custody and medical personnel about
how they medically evaluate a jail inmate or respond to an apparent inmate
medical emergency.” Also, in response to an interrogatory from the County, Porio
2
The relevant allegations in the FAC are about “entity defendants,” which is
defined to include the County and the Orange County Health Care Agency—the
agency that provides medical services to people in custody in Orange County.
4 25-1294
noted that because the County had failed to provide any training records in
response to his request, he had concluded that “the County provided no such
training” and that “the County failed to train its intake nurses on how to . . . handle
arrestees with altered mental status, make decisions on when to summon a medical
provider . . . [or] screen arrestees who have communication problems or are unable
to answer questions (including due to intoxication or other conditions).” Porio’s
interrogatory response also alleged that the County was on actual and constructive
notice of the training deficiencies. Collectively, this was enough to put the County
on notice that Porio intended to pursue a Monell claim based on its policies,
practices, and training related to medical screenings and referrals by jail staff and
nurses. Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir. 2000)
(holding that, to pursue an alternative theory of recovery at summary judgment, the
plaintiffs must either plead the theory in their complaint or “make known during
discovery their intention to pursue recovery on” the theory omitted from their
complaint).
Porio also presented enough evidence to create a genuine issue of material
fact as to that Monell claim, including: (1) evidence that the County had notice of
policy and training deficiencies regarding medical handling of arrestees and
detainees due to prior in-custody deaths and watchdog reports but took no remedial
action, (2) the County’s failure to identify in discovery any training on the medical
5 25-1294
evaluation of jail admittees or for responding to medical emergencies, (3) expert
testimony that it is a “common, recurrent scenario” for patients with serious health
problems, including strokes, to arrive at intake having been misidentified by law
enforcement as being intoxicated, and opining that patients who are thought to be
so intoxicated that they cannot answer questions “require[] immediate [provider]
assessment to address the substantial risk they are experiencing a medical
emergency” (which the County’s policy did not require), (4) expert testimony that
if Porio “had been properly referred to a physician or mid-level provider, . . . his
obvious neurological deficits would have been identified and not incorrectly
attributed to alcohol intoxication.”
2. Porio argues that the district court abused its discretion by enforcing a
strict three-hour-per-side time limit to present the case, thereby affecting his
substantial rights. “[A] district court may impose reasonable time limits on a trial,”
but we generally “look upon rigid hour limits for trials with disfavor.” Gen. Signal
Corp., 66 F.3d at 1508.
In the context of this case, which presented difficult medical diagnosis,
causation, and damages questions requiring expert testimony, three hours to
examine witnesses was not enough for Porio to present his case. Because the time
limit caused him to rush the presentation of evidence to the jury and therefore
6 25-1294
impeded his ability to meet his burden of proof, it was prejudicial to Porio, and the
jury verdict cannot stand.
3. Barbari argues that she is entitled to qualified immunity, which would
prevent a retrial. Even assuming that Barbari preserved her qualified immunity
defense, it fails on the merits. “[I]t is clearly established that officers must seek to
provide an injured detainee or arrestee with objectively reasonable medical care in
the face of medical necessity creating a substantial and obvious risk of serious
harm, including by summoning medical assistance.” D’Braunstein v. Cal.
Highway Patrol, 131 F.4th 764, 771 (9th Cir. 2025). Construing the facts in the
light most favorable to Porio, a reasonable jury could find that Barbari’s failure to
refer Porio to a provider was objectively unreasonable and that Barbari acted with
reckless disregard for Porio’s well-being, in violation of the Fourteenth
Amendment. See id. at 769-70. Because a reasonable jury could find that Barbari
violated Porio’s rights, and because the right was clearly established, Barbari is not
entitled to qualified immunity.
REVERSED and REMANDED.
7 25-1294