Jonathon Castro v. County of Los Angeles

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JONATHAN MICHAEL No. 12-56829

CASTRO,

Plaintiff-Appellee, D.C. No.

2:10-cv-05425-DSF-JEM

v.

COUNTY OF LOS ANGELES; OPINION

LOS ANGELES SHERIFF’S

DEPARTMENT;

CHRISTOPHER SOLOMON;

DAVID VALENTINE,

Sergeant, aka Valentine,

Defendants-Appellants.

Appeal from the United States District Court

for the Central District of California

Dale S. Fischer, District Judge, Presiding

Argued and Submitted En Banc March 22, 2016

San Francisco, California

Filed August 15, 2016

Before: Sidney R. Thomas, Chief Judge, and Susan P.

Graber, Ronald M. Gould, Richard A. Paez, Consuelo M.

Callahan, Carlos T. Bea, Milan D. Smith, Jr., Sandra S.

Ikuta, Paul J. Watford, John B. Owens, and Michelle T.

Friedland, Circuit Judges.

2 CASTRO V. CTY. OF LOS ANGELES

Opinion by Judge Graber;

Partial Dissent by Judge Callahan;

Dissent by Judge Ikuta

SUMMARY*

Civil Rights

The en banc court affirmed the district court’s judgment,

entered following a jury trial, in an action brought under 42

U.S.C. § 1983 by a pretrial detainee alleging that his due

process right to be protected from harm at the hands of other

inmates was violated when he was severely beaten and

injured in his cell by another inmate.

The en banc court first held that the individual sheriff

deputies were not entitled to qualified immunity from suit

because plaintiff had a clearly established right to be free

from violence from other inmates and substantial evidence

supported the jury’s findings that the defendants understood

that placing plaintiff in a cell with a combative inmate, when

the cell had no audio or video surveillance and only

occasional monitoring, could lead to serious violence against

plaintiff.

Applying Kingsley v. Hendrickson, 135 S. Ct. 2466

(2015), the en banc court concluded that the evidence

supported the jury’s findings that the officers knew of the

substantial risk of serious harm to plaintiff, which necessarily

*

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

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

CASTRO V. CTY. OF LOS ANGELES 3

implied that the jury found that a reasonable officer would

have appreciated the risk. The en banc court further

concluded that there was sufficient evidence to support the

jury’s findings that the officers caused plaintiff’s injuries by

failing to take reasonable measures to address the risk.

The en banc court held that the County of Los Angeles

and the Los Angeles Sheriff’s Department had notice that

their customs or policies posed a substantial risk of serious

harm to persons detained in the West Hollywood sobering

cell and were deliberately indifferent to that risk. The court

held that the custom or policy to use a sobering cell that

lacked adequate audio surveillance to detain more than one

belligerent drunk person while checking the cell visually only

every half hour caused plaintiff’s injury. Additionally,

substantial evidence supported the jury’s finding that the

County knew that its cell design might lead to a constitutional

violation among its inhabitants.

Dissenting in part, Judge Callahan, joined by Judges Bea

and Ikuta, agreed that the judgment against the individual

defendants should be affirmed, but she dissented from the

affirmance of the judgment against the entity defendants on

the grounds that the record in this case showed that the

County of Los Angeles did not have a policy or custom that

reflected deliberate indifference and caused plaintiff’s

injuries.

Dissenting, Judge Ikuta, joined by Judges Callahan and

Bea, stated that the en banc court misinterpreted Kingsley v.

Hendrickson, and made a mess of the Supreme Court’s

framework for determining when pretrial detainees have

suffered punishment in violation of their Fourteenth

Amendment due process rights.

4 CASTRO V. CTY. OF LOS ANGELES

COUNSEL

Melinda Cantrall (argued) and Thomas C. Hurrell, Hurrell

Cantrall LLP, Los Angeles, California, for Defendants-

Appellants.

John Burton (argued), Law Offices of John Burton, Pasadena,

California; Maria Cavalluzzi, Cavalluzzi & Cavalluzzi, Los

Angeles, California; and M. Lawrence Lallande, Lallande

Law PLC, Long Beach, California, for Plaintiff-Appellee.

David M. Shapiro (argued), Roderick and Solange MacArthur

Justice Center, Northwestern University School of Law,

Chicago, Illinois; Paul W. Hughes, Mayer Brown LLP,

Washington, D.C.; David C. Fathi, ACLU National Prison

Project, Washington, D.C.; Peter Eliasberg, ACLU

Foundation of Southern California, Los Angeles, California;

for Amici Curiae ACLU of Southern California, American

Civil Liberties Union, Human Rights Defense Center,

National Police Accountability Project, and Roderick and

Solange MacArthur Justice Center.

CASTRO V. CTY. OF LOS ANGELES 5

OPINION

GRABER, Circuit Judge:

The Los Angeles Sheriff’s Department (“LASD”)

detained Jonathan Castro in a sobering cell in the West

Hollywood police station. Several hours later, authorities

placed Jonathan Gonzalez, a combative inmate who had been

arrested on a felony charge, in the same cell. Castro banged

on the cell’s window to try to attract attention. Officials at

the jail ignored Castro’s attempts to seek help. The County

of Los Angeles and the LASD had not equipped the cell with

audio monitoring, and the cell was checked only sporadically.

Within hours of their co-confinement, Gonzalez severely beat

and injured Castro. Castro sued individual LASD officials,

the County of Los Angeles, and the LASD, under 42 U.S.C.

§ 1983, for violating his due process right as a pretrial

detainee to be protected from harm at the hands of other

inmates. After a trial, a jury found all Defendants liable.

Defendants timely appeal. We affirm.

FACTUAL1 AND PROCEDURAL HISTORY

Late in the evening of October 2, 2009, two LASD

deputies arrested Castro for public drunkenness, a

misdemeanor under California Penal Code section 647(f).

Castro, the officers reported, was staggering, bumping into

pedestrians, and speaking unintelligibly. The officers

arrested Castro for his own safety and transported him to the

West Hollywood police station. They placed him in the

station’s “sobering cell,” a fully walled chamber that was

1

We must construe the facts in the light most favorable to the jury’s

verdict. Pavao v. Pagay, 307 F.3d 915, 918 (9th Cir. 2002).

6 CASTRO V. CTY. OF LOS ANGELES

stripped of objects with hard edges on which an inmate could

hurt himself; the cell contained only a toilet and some

mattress pads.

Several hours later, authorities arrested Gonzalez on a

felony charge after he shattered a glass door with his fist at a

nightclub. LASD deputies described Gonzalez as acting

“bizarre” at the time of his arrest. The intake form

characterized Gonzalez as “combative.” The authorities

placed him in the sobering cell with Castro.

The West Hollywood station manual defines a “sobering

cell” as a “cell with a padded floor and standard toilet with a

padded partition on one side for support. It must allow for

maximum visual supervision of prisoners by staff.” The

sobering cells are to be used to house inmates who are a

threat to their own safety or to others’ safety. The station

manual provides that non-compliant sobering cells “should

not be utilized.”

California’s Building Code, adopted through legislative

action by the Los Angeles County Board of Supervisors as

County law, also includes standards that govern sobering

cells. L.A. Cty. Code tit. 26, ch. 1, § 100 (2007). In 2009,

the building code required maximum visual supervision of all

inmates by staff and provided that inmates requiring more

than minimum security must be housed in cells with an

inmate or sound-activated audio-monitoring system. Cal.

Bldg. Code tit. 24, §§ 1231.2.4, 1231.2.22 (2007). The

sobering cell at the West Hollywood police station met

neither of those requirements, yet it was used routinely.

Shortly after Gonzalez entered the cell, Castro approached

the door and pounded on the window in the door, attempting

CASTRO V. CTY. OF LOS ANGELES 7

to attract an officer’s attention. No one responded.

Christopher Solomon, the station’s supervising officer, had

assigned an unpaid community volunteer to monitor the cell.

The volunteer walked by the cell about 20 minutes after

Castro had sought help. He noticed that Castro appeared to

be asleep and that Gonzalez was “inappropriately” touching

Castro’s thigh, in violation of jail policy. The volunteer did

not enter the cell to investigate. Instead, he reported the

contact to Solomon. Six minutes later, Solomon arrived at

the sobering cell and saw Gonzalez making a violent

stomping motion. He opened the door, discovered Gonzalez

stomping on Castro’s head, and found Castro lying

unconscious in a pool of blood. Solomon separated Gonzalez

from Castro and called for medical assistance.

When the paramedics arrived, Castro was unconscious, in

respiratory distress, and blue. He was hospitalized for almost

a month, after which he was transferred to a long-term care

facility, where he remained for four years. He suffers from

severe memory loss and other cognitive difficulties.

Castro filed a complaint against the County of Los

Angeles and the LASD (the “entity defendants”), as well as

Solomon and Solomon’s supervisor, David Valentine (the

“individual defendants”). He sought to recover actual

damages, future damages, punitive damages, and

compensation for pain and suffering. Castro claimed that

both the entity defendants and the individual defendants

violated his constitutional rights by housing him in the

sobering cell with Gonzalez and by failing to maintain

appropriate supervision of the cell.

The case proceeded to trial. After Castro presented his

case, Defendants moved for judgment as a matter of law on

8 CASTRO V. CTY. OF LOS ANGELES

three grounds: (1) insufficient evidence that the design of a

jail cell constitutes a policy, practice, or custom by the

County that resulted in a constitutional violation;

(2) insufficient evidence that a reasonable officer would have

known that housing Castro and Gonzalez together was a

violation of Castro’s constitutional rights; and (3) insufficient

evidence for the jury to award punitive damages. The district

court denied the motion. The jury returned a verdict for

Castro on all counts and awarded him more than $2 million

in damages. Defendants then filed a renewed motion for

judgment as a matter of law. The district court denied the

renewed motion without issuing a written opinion.

Defendants timely appeal.

A three-judge panel affirmed the judgment of the district

court as to the individual defendants but reversed as to the

entity defendants. Castro v. County of Los Angeles, 797 F.3d

654 (9th Cir. 2015). A majority of active non-recused judges

voted to rehear the case en banc. 809 F.3d 536 (9th Cir.

2015).

STANDARD OF REVIEW

We review de novo the district court’s denial of a motion

for judgment as a matter of law. Hangarter v. Provident Life

& Accident Ins. Co., 373 F.3d 998, 1005 (9th Cir. 2004). A

renewed motion for judgment as a matter of law is properly

granted only “if the evidence, construed in the light most

favorable to the nonmoving party, permits only one

reasonable conclusion, and that conclusion is contrary to the

jury’s verdict.” Pavao v. Pagay, 307 F.3d 915, 918 (9th Cir.

2002). “A jury’s verdict must be upheld if it is supported by

substantial evidence, which is evidence adequate to support

the jury’s conclusion, even if it is also possible to draw a

CASTRO V. CTY. OF LOS ANGELES 9

contrary conclusion.” Id. In assessing the jury’s verdict, we

may not weigh the evidence but simply ask whether the

plaintiff has presented sufficient evidence to support the

jury’s conclusion. Johnson v. Paradise Valley Unified Sch.

Dist., 251 F.3d 1222, 1227–28 (9th Cir. 2001).

DISCUSSION

We address first the claims against the individual

defendants and then the claims against the entity defendants.2

A. Individual Defendants

The jury found Solomon and Valentine liable for injuries

to Castro. Solomon and Valentine maintain that, as a matter

of law, they are entitled to qualified immunity and that Castro

has failed to show that they were deliberately indifferent to a

substantial risk of serious harm.

1. Qualified Immunity

Qualified immunity shields government actors from civil

liability under 42 U.S.C. § 1983 if “their conduct does not

violate clearly established statutory or constitutional rights of

which a reasonable person would have known.” Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). To determine whether

2

We incorporate by reference the three-judge panel’s opinion as to

punitive damages, contained in section II.C., Castro, 797 F.3d at 669–70,

and as to future medical expenses, contained in section II.E., id. at

675–76. And we reject the County’s claim that the Eleventh Amendment

bars this suit. See Jackson v. Barnes, 749 F.3d 755, 764–65 (9th Cir.

2014) (holding that a sheriff’s department is a county actor when

supervising a jail); Streit v. County of Los Angeles, 236 F.3d 552, 566–67

(9th Cir. 2001) (same).

10 CASTRO V. CTY. OF LOS ANGELES

an officer is entitled to qualified immunity, a court must

evaluate two independent questions: (1) whether the officer’s

conduct violated a constitutional right, and (2) whether that

right was clearly established at the time of the incident.

Pearson v. Callahan, 555 U.S. 223, 232 (2009).

Here, Castro—a pretrial detainee who had not been

convicted of any crime—had a due process right to be free

from violence from other inmates. Fifteen years before

Castro’s arrest, in Farmer v. Brennan, 511 U.S. 825, 833

(1994), the Supreme Court made clear that “prison officials

have a duty to protect prisoners from violence at the hands of

other prisoners” because corrections officers have “stripped

[the inmates] of virtually every means of self-protection and

foreclosed their access to outside aid.” (Internal quotation

marks and ellipsis omitted.) And the Court had consistently

held (before Castro’s arrest) that the due process rights of a

pretrial detainee are “at least as great as the Eighth

Amendment protections available to a convicted prisoner.”

City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244

(1983).

The individual defendants acknowledge that the duty to

protect Castro from violence was clearly established at the

time of the incident. But they argue that such a broad

description of that duty is too general to guide our analysis.

They also contend that Castro failed to present substantial

evidence to establish that they violated their duty to protect

him. We disagree with both of those arguments.

First, a right is clearly established when the “contours of

the right [are] sufficiently clear that a reasonable official

would understand that what he is doing violates that right.”

Serrano v. Francis, 345 F.3d 1071, 1077 (9th Cir. 2003)

CASTRO V. CTY. OF LOS ANGELES 11

(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).

The “contours” of Castro’s right were his right to be free

from violence at the hands of other inmates. Farmer,

511 U.S. at 833. The Supreme Court need not catalogue

every way in which one inmate can harm another for us to

conclude that a reasonable official would understand that his

actions violated Castro’s right. Nor do the official’s actions,

in this context, require some affirmative act. As we held

months before Castro’s arrest, “direct causation by

affirmative action is not necessary: ‘a prison official may be

held liable under the Eighth Amendment if he knows that

inmates face a substantial risk of serious harm and disregards

that risk by failing to take reasonable measures to abate it.’”

Clem v. Lomeli, 566 F.3d 1177, 1182 (9th Cir. 2009) (ellipsis

omitted) (quoting Farmer, 511 U.S. at 847). The contours of

the right required only that the individual defendants take

reasonable measures to mitigate the substantial risk to Castro.

Accordingly, we reject the individual defendants’ argument

that the law on which Castro bases his claim was not clearly

established at the time of the incident. Therefore, qualified

immunity does not bar the claim against them.

Second, as a factual matter, the jury found that both

Solomon and Valentine understood that placing Castro in a

cell with a combative inmate, when the cell had no audio or

video surveillance and only occasional monitoring, could lead

to serious violence against Castro. Substantial evidence

supports those findings.

12 CASTRO V. CTY. OF LOS ANGELES

2. Deliberate Indifference3

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. See Bell v. Wolfish, 441 U.S. 520, 535 (1979)

(holding that, under the Due Process Clause, a detainee may

not be punished prior to conviction). Under both clauses, the

plaintiff must show that the prison officials acted with

“deliberate indifference.”

The standard under the Eighth Amendment to prove

deliberate indifference for individual defendants is well

established. A prison official cannot be found liable under

the Cruel and Unusual Punishment Clause for denying an

inmate humane conditions of confinement “unless the official

knows of and disregards an excessive risk to inmate health or

safety; the official must both be aware of facts from which

the inference could be drawn that a substantial risk of serious

harm exists, and he must also draw the inference.” Farmer,

511 U.S. at 837. “In other words, 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).

The standard to find an individual deliberately indifferent

under the Fourteenth Amendment, however, is less clear. Our

court’s most recent pronouncement on the issue is in

3

Judge Watford joins the majority opinion with the exception of section

A.2 of the Discussion.

CASTRO V. CTY. OF LOS ANGELES 13

Clouthier v. County of Contra Costa, 591 F.3d 1232 (9th Cir.

2010). In Clouthier, parents of a pretrial detainee sued a

mental health specialist, sheriff’s deputies, and the County of

Contra Costa, claiming that the defendants had violated the

due process rights of their son by failing to prevent his

suicide. Id. at 1236. We read Farmer and Bell to create a

single “deliberate indifference” test for plaintiffs who bring

a constitutional claim—whether under the Eighth

Amendment or the Fourteenth Amendment. We interpreted

Bell to require proof of punitive intent for failure-to-protect

claims, whether those claims arise in a pretrial or a post-

conviction context. Id. We held that,

[i]n light of the Supreme Court’s rulings that

conditions of confinement violate pretrial

detainees’ Fourteenth Amendment rights if

the conditions amount to punishment and that

failure to prevent harm amounts to

punishment where detention officials are

deliberately indifferent, . . . the “deliberate

indifference” standard applies to claims that

correction facility officials failed to address

the medical needs of pretrial detainees.

Id. at 1242 (citations omitted). We further held that this

standard incorporates the subjective test articulated in

Farmer. Id. Under that test, we 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 under our cases be condemned as the infliction of

punishment,” and so could not support liability under either

the Eighth or the Fourteenth Amendment. Id. (quoting

Farmer, 511 U.S. at 838).

14 CASTRO V. CTY. OF LOS ANGELES

The Supreme Court, however, cast that holding into

serious doubt in Kingsley v. Hendrickson, 135 S. Ct. 2466

(2015). There, the Court 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. Id. at 2470. To analyze that

question with respect to the officers’ use of force, which had

included a five-second Taser stun blast to the pretrial

detainee’s back, the Supreme Court explained:

In a case like this one, there are, in a sense,

two separate state-of-mind questions. The

first concerns the defendant’s state of mind

with respect to his physical acts—i.e., his

state of mind with respect to the bringing

about of certain physical consequences in the

world. The second question concerns the

defendant’s state of mind with respect to

whether his use of force was “excessive.”

Id. at 2472. The Court emphasized that there was “no

dispute” as to the first of those questions, because everyone

agreed that the officers’ use of force was intentional. Id. It

was the second question, on which there was a dispute, that

the Court answered. On that second issue, the Court

concluded that “the relevant standard is objective not

subjective.” Id. Putting it in other words, the Court

explained:

In deciding whether the force deliberately

used [by the officer on the pretrial detainee]

is, constitutionally speaking, “excessive,”

should courts use an objective standard only,

CASTRO V. CTY. OF LOS ANGELES 15

or instead a subjective standard that takes into

account a defendant’s state of mind? It is

with respect to this question that we hold that

courts must use an objective standard. In

short, . . . a pretrial detainee must show only

that the force purposely or knowingly used

against him was objectively unreasonable.

Id. at 2472–73.

Under Kingsley, then, 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. In so holding, the Kingsley Court expressly

rejected the interpretation of Bell on which we had relied in

Clouthier. The Court concluded that, “as Bell itself shows

(and as our later precedent affirms), a pretrial detainee can

prevail by providing only objective evidence that the

challenged governmental action is not rationally related to a

legitimate governmental objective or that it is excessive in

relation to that purpose.” Id. at 2473–74 (emphasis added).

In sum, Kingsley rejected the notion that there exists a single

“deliberate indifference” standard applicable to all § 1983

claims, whether brought by pretrial detainees or by convicted

prisoners.

Kingsley did not squarely address whether the objective

standard applies to all kinds of claims by pretrial detainees,

including both excessive force claims and failure-to-protect

claims. An excessive force claim, like the one at issue in

Kingsley, differs in some ways from a failure-to-protect

claim, like the one at issue here. An excessive force claim

requires an affirmative act; a failure-to-protect claim does not

require an affirmative act. And Kingsley’s holding concerned

16 CASTRO V. CTY. OF LOS ANGELES

whether the “force deliberately used is, constitutionally

speaking, ‘excessive,’” id. at 2472, which does not

necessarily answer the broader question whether the objective

standard applies to all § 1983 claims brought under the

Fourteenth Amendment against individual defendants.

On the other hand, there are significant reasons to hold

that the objective standard applies to failure-to-protect claims

as well. “Section 1983 itself ‘contains no state-of-mind

requirement independent of that necessary to state a

violation’ of the underlying federal right.” Bd. of Cty.

Comm’rs v. Brown, 520 U.S. 397, 405 (1997) (quoting

Daniels v. Williams, 474 U.S. 327, 330 (1986)); see also

Heffernan v. City of Paterson, 136 S. Ct. 1412, 1418 (2016)

(noting that the underlying right in a § 1983 suit tracks the

text of the Constitution). The underlying federal right, as

well as the nature of the harm suffered, is the same for

pretrial detainees’ excessive force and failure-to-protect

claims. Both categories of claims arise under the Fourteenth

Amendment’s Due Process Clause, rather than under the

Eighth Amendment’s Cruel and Unusual Punishment Clause.

“The language of the two Clauses differs, and the nature of

the claims often differs. And, most importantly, pretrial

detainees (unlike convicted prisoners) cannot be punished at

all, much less ‘maliciously and sadistically.’” Kingsley,

135 S. Ct. at 2475.

We note, too, the broad wording of Kingsley. In rejecting

the interpretation of Bell on which we relied in Clouthier, the

Court wrote that “a pretrial detainee can prevail by providing

only objective evidence that the challenged governmental

action is not rationally related to a legitimate governmental

objective or that it is excessive in relation to that purpose.”

Kingsley, 135 S. Ct. at 2473–74 (emphasis added). The Court

CASTRO V. CTY. OF LOS ANGELES 17

did not limit its holding to “force” but spoke to “the

challenged governmental action” generally. We therefore

overrule Clouthier to the extent that it identified a single

deliberate indifference standard for all § 1983 claims and to

the extent that it required a plaintiff to prove an individual

defendant’s subjective intent to punish in the context of a

pretrial detainee’s failure-to-protect claim.

On balance, we are persuaded that Kingsley applies, as

well, to failure-to-protect claims brought by pretrial detainees

against individual defendants under the Fourteenth

Amendment. Excessive force applied directly by an

individual jailer and force applied by a fellow inmate can

cause the same injuries, both physical and constitutional.

Jailers have a duty to protect pretrial detainees from violence

at the hands of other inmates, just as they have a duty to use

only appropriate force themselves.

Because of the differences between failure-to-protect

claims and claims of excessive force, though, applying

Kingsley’s holding to failure-to-protect claims requires

further analysis. As explained above, Kingsley recognized

that there are two state-of-mind issues at play in an excessive

force claim.

The first—the officer’s state of mind with respect to his

physical acts—was undisputedly an intentional one there,

because the officer had taken the affirmative act of using

force knowingly and purposefully. In the failure-to-protect

context, in which the issue is usually inaction rather than

action, the equivalent is that the officer’s conduct with

respect to the plaintiff was intentional. For example, if the

claim relates to housing two individuals together, the inquiry

at this step would be whether the placement decision was

18 CASTRO V. CTY. OF LOS ANGELES

intentional. Or, if the claim relates to inadequate monitoring

of the cell, the inquiry would be whether the officer chose the

monitoring practices rather than, for example, having just

suffered an accident or sudden illness that rendered him

unconscious and thus unable to monitor the cell. As the

Supreme Court in Kingsley explained, “if an officer’s Taser

goes off by accident or if an officer unintentionally trips and

falls on a detainee, causing him harm, the pretrial detainee

cannot prevail on an excessive force claim,” because the first

state-of-mind factor would not be satisfied. Id. at 2472.

Similarly, that factor would not be satisfied in the failure-to-

protect context if the officer’s inaction resulted from

something totally unintentional.

Under Kingsley, the second question in the failure-to-

protect context would then be purely objective: Was there a

substantial risk of serious harm to the plaintiff that could have

been eliminated through reasonable and available measures

that the officer did not take, thus causing the injury that the

plaintiff suffered? That inquiry differs from the inquiry with

respect to an Eighth Amendment failure-to-protect claim:

There, “the deprivation alleged must objectively be

sufficiently serious; and the prison official must subjectively

have a sufficiently culpable state of mind.” Estate of Ford v.

Ramirez-Palmer, 301 F.3d 1043, 1049 (9th Cir. 2002). As we

have explained in the Eighth Amendment context, “[a] prison

official cannot be found liable under the Eighth Amendment

for denying an inmate humane conditions of confinement

unless the official knows of and disregards an excessive risk

to inmate health or safety; the official must both be aware of

facts from which the inference could be drawn that a

substantial risk of serious harm exists, and he must also draw

the inference.” Id. at 1050 (quoting Farmer, 511 U.S. at

837). Under Kingsley, a pretrial detainee need not prove

CASTRO V. CTY. OF LOS ANGELES 19

those subjective elements about the officer’s actual awareness

of the level of risk. At the same time, however, the Supreme

Court has instructed that “mere lack of due care by a state

official” does not “’deprive’ an individual of life, liberty, or

property under the Fourteenth Amendment.” Daniels,

474 U.S. at 330–31 (holding that negligent actions or

omissions by state officials are not actionable under § 1983);

accord Davidson v. Cannon, 474 U.S. 344 (1986) (same).

Thus, the test to be applied under Kingsley must require a

pretrial detainee who asserts a due process claim for failure

to protect to prove more than negligence but less than

subjective intent—something akin to reckless disregard.

Putting these principles together, the elements of a pretrial

detainee’s Fourteenth Amendment failure-to-protect claim

against an individual officer are:

(1) The defendant made an intentional decision with

respect to the conditions under which the plaintiff was

confined;

(2) Those conditions put the plaintiff at substantial risk of

suffering serious harm;

(3) The defendant did not take reasonable available

measures to abate that risk, even though a reasonable officer

in the circumstances would have appreciated the high degree

of risk involved—making the consequences of the

defendant’s conduct obvious; and

20 CASTRO V. CTY. OF LOS ANGELES

(4) By not taking such measures, the defendant caused the

plaintiff’s injuries.4

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.’” Kingsley, 135 S. Ct. at 2473 (quoting Graham v.

Connor, 490 U. S. 386, 396 (1989)); see also Restatement

(Second) of Torts § 500 cmt. a (Am. Law Inst. 2016)

(recognizing that “reckless disregard” may be shown by an

objective standard under which an individual “is held to the

realization of the aggravated risk which a reasonable [person]

in his place would have, although he does not himself have

it”).

Although the jury instructions in this case differed from

the template that we establish today, the jury made findings

that would satisfy this test—or, to the extent that the jury did

not, Defendants have waived any challenge to those aspects

of the instructions. The district court instructed the jury that

4

Judge Ikuta, in dissent, suggests that this new test would be

“underinclusive.” She claims that it could relieve some officials of

liability despite their deliberate indifference because a jury might not find

intent where a defendant failed to act. Ikuta, J., dissenting at 52. But the

state-of-mind requirement articulated here is less stringent than the

subjective test that preceded it. In a failure-to-protect case where a

defendant actually knew of a substantial risk of serious harm and

consciously took no action, one would expect a jury to find that the

defendant made an intentional decision. Contrary to Judge Ikuta’s view,

the result in Lolli v. County of Orange, 351 F.3d 410 (9th Cir. 2003),

would be the same under our test. Lolli held only that summary judgment

for some of the defendants was improper because factual issues remained

for the jury. Id. at 419–21. And the four required factors prevent

“overinclusiveness” by ensuring that liability will attach only in cases

where the defendant’s conduct is more egregious than mere negligence.

CASTRO V. CTY. OF LOS ANGELES 21

Castro’s claim involved Defendants’ deprivation of Castro’s

“constitutional right to have reasonable measures taken to

guarantee his safety when he was incarcerated at the West

Hollywood jail,” that Castro had to prove by a preponderance

of the evidence that “the plaintiff faced a substantial risk of

serious harm,” that “the defendant was deliberately

indifferent to that risk,” and that “the acts, or failure to act, of

the defendant caused harm to the plaintiff.” The instructions

further recognized that “deliberate indifference” required the

defendant to “fail[] to take reasonable measures to address

[the risk].” By finding in Castro’s favor, the jury necessarily

found that Castro had satisfied his burden of proof on all of

those points. To the extent that the instructions did not

explain that reasonable measures must be available or that the

circumstances must have been such that a reasonable officer

would have appreciated the risk, the individual defendants

have not challenged any of the objective components of the

instructions provided to the jury, nor have they argued that

any issue should be retried if the subjective element of the

test were eliminated in light of Kingsley.5

Here, the individual defendants do not claim that there

was any miscommunication about the placement of Gonzalez

in Castro’s cell or that some other unintentional act created

the jail conditions at issue. Nor do the individual defendants

dispute that Castro faced a substantial risk of serious harm at

the hands of Gonzalez or that they failed to take reasonable

measures to mitigate that risk. Rather, the individual

defendants argue that there was insufficient evidence to

establish their subjective awareness of the danger that Castro

5

In response to orders from this court, the parties filed two rounds of

supplemental briefing specifically addressing the question of how

Kingsley affects this case.

22 CASTRO V. CTY. OF LOS ANGELES

faced and their knowing disregard of it, or to establish that

their conduct caused Castro’s injuries.

In light of the analysis above, to affirm the jury’s verdict

we need only determine that there was substantial evidence

that a reasonable officer in the circumstances would have

appreciated the high degree of risk involved and that the

officers’ failure to take reasonable measures to protect Castro

caused his injuries. The jury here found that the officers

knew of the substantial risk of serious harm to Castro, which

necessarily implies that the jury found that a reasonable

officer would have appreciated the risk. Indeed, the jury

found that the risk was so obvious, and the individual

defendants’ lack of response to it was so blameworthy, that

it awarded punitive damages after being instructed as follows:

You may award punitive damages only if

you find that the defendant’s conduct that

harmed the plaintiff was malicious,

oppressive, or in reckless disregard of the

plaintiff’s rights. Conduct is malicious if it is

accompanied by ill will, or spite, or if it is for

the purpose of injuring the plaintiff. Conduct

is in reckless disregard of the plaintiff’s rights

if, under the circumstances, it reflects

complete indifference to the plaintiff’s safety

or rights, or if the defendant acts in the face of

a perceived risk that his actions will violate

the plaintiff’s rights under federal law. An act

or omission is oppressive if the defendant

injures or damages or otherwise violates the

rights of the plaintiff with unnecessary

harshness or severity, such as by the misuse or

abuse of authority or power or by the taking

CASTRO V. CTY. OF LOS ANGELES 23

advantage of some weakness or disability or

misfortune of the plaintiff.

There clearly is sufficient evidence to support those

findings, as well as the jury’s finding that the officers caused

Castro’s injuries by failing to take reasonable measures to

address the risk. The individual defendants knew that Castro,

who had been detained only for a misdemeanor, was too

intoxicated to care for himself; they knew that Gonzalez, a

felony arrestee, was enraged and combative; they knew or

should have known that the jail’s policies forbade placing the

two together in the same cell in those circumstances; and they

knew or should have known that other options for placing

them in separate cells existed. Moreover, Valentine decided

to house Castro in a fully walled sobering cell with a

“combative” inmate even though separate cells were typically

available and unused. Solomon failed to respond to Castro’s

banging on the window in the door of the cell. Jail video of

the hallway showed Castro pounding on his cell door for a

full minute, while Solomon remained unresponsive, seated at

a desk nearby. Solomon failed to respond fast enough to

Gonzalez’ inappropriate touching of Castro. Solomon also

erred in delegating the safety checks to a volunteer.

Valentine failed to supervise Solomon in a way that would

have prevented harm to Castro. We have no difficulty

concluding that this evidence is sufficient to sustain the jury’s

verdict in Castro’s favor.

B. Entity Defendants

Castro has also sued the County of Los Angeles and the

LASD under 42 U.S.C. § 1983. In Monell v. Department of

Social Services, 436 U.S. 658 (1978), the Supreme Court held

that a municipality may not be held liable for a § 1983

24 CASTRO V. CTY. OF LOS ANGELES

violation under a theory of respondeat superior for the actions

of its subordinates. In order to establish municipal liability,

a plaintiff must show that a “policy or custom” led to the

plaintiff’s injury. Id. at 694. The Court has further required

that the plaintiff demonstrate that the policy or custom of a

municipality “reflects deliberate indifference to the

constitutional rights of its inhabitants.” City of Canton v.

Harris, 489 U.S. 378, 392 (1989).

In this case, the district court instructed the jury as

follows with respect to the entity defendants:6

In order to prevail on his claim against

[the entity defendants], plaintiff must prove

each of the following elements by a

preponderance of the evidence:

1. the plaintiff was deprived of a

constitutional right;

2. the [entity defendants] had a

longstanding practice or custom of detaining

highly intoxicated people in the West

Hollywood jail detoxification cell without

constitutionally adequate visual surveillance

and audio monitoring;

6

The court did not define “deliberately indifferent” in the instruction

concerning the entity defendants, but the entity defendants do not assign

error to that omission. In an earlier instruction concerning the individual

defendants, the court defined “deliberately indifferent” to mean that “the

defendant knew of the risk and disregarded it by failing to take reasonable

measures to address it. Merely being negligent, or failing to alleviate a

significant risk that the defendant should have perceived but didn’t, does

not constitute ‘deliberate indifference.’”

CASTRO V. CTY. OF LOS ANGELES 25

3. the [entity defendants’] longstanding

practice or custom regarding the level of

visual surveillance and audio monitoring of

the West Hollywood jail detoxification cell

was unconstitutional in that it was deliberately

indifferent to a substantial risk of serious

harm to prisoners in the West Hollywood jail

detoxification cell;

4. the [entity defendants’] longstanding

practice or custom caused harm to plaintiff.

Plaintiff must establish an affirmative link

between the practice or custom and the

particular constitutional violation at issue.

“Practice or custom” means any

permanent, widespread, well-settled practice

or custom that constitutes a standard operating

procedure of the defendant County of Los

Angeles.

The court also described the alleged constitutional violation

specifically, explaining that Castro’s claim was that the entity

defendants “deprived him of his constitutional right to have

reasonable measures taken to guarantee his safety when he

was incarcerated at the West Hollywood jail.” Finally, the

court cautioned:

In evaluating the facts in this case, you

must consider the context in which the jails

operate. In determining whether defendants

violated plaintiff’s rights as alleged, you

should give deference to jail officials in the

26 CASTRO V. CTY. OF LOS ANGELES

adoption and execution of policies and

practices that in their judgment are needed to

preserve discipline and to maintain internal

security. In other words, you must consider

whether, in allegedly exposing plaintiff to

danger, the defendants were guided by equally

important considerations. The existence of

arguably superior alternatives to the design,

operation, and conditions in place in a jail

does not necessarily give rise to constitutional

liability.

The entity defendants contest the verdict against them on

several grounds: that the instructions were erroneous because

they spelled out what custom or practice Castro alleged; that

the design of a jail cell is not a policy, custom, or practice;

and that the evidence failed to show either causation or

deliberate indifference.7 We are not persuaded. Grouping

those challenges somewhat differently, we will address, first,

whether the instructions were adequate; second, whether the

entity defendants had a policy or custom that caused Castro’s

7

The entity defendants also argue that a plaintiff can establish neither

a custom or practice, nor deliberate indifference, without proving prior

incidents of harm. The entity defendants failed to preserve that argument

in the district court. See Whittaker Corp. v. Execuair Corp., 953 F.2d 510,

515 (9th Cir. 1992) (holding that an appeals court will generally not

consider an argument raised for the first time on appeal). Indeed, they

argued the very opposite. At trial, Defendants vigorously opposed the

introduction of Castro’s anticipated “evidence of prior or subsequent

assaults on other inmates,” on the ground that “such evidence is irrelevant

and unduly prejudicial.” Even if not waived or forfeited, the argument is

legally inaccurate. See Brown, 520 U.S. at 409 (noting that evidence of

a single violation of federal rights can, in some circumstances, trigger

municipal liability).

CASTRO V. CTY. OF LOS ANGELES 27

injury; and, third, whether the policy or custom reflected

deliberate indifference on the part of the municipality.

1. Jury Instructions

We review the formulation of jury instructions for abuse

of discretion in a civil case, considering the instructions as a

whole. Guebara v. Allstate Ins. Co., 237 F.3d 987, 992 (9th

Cir. 2001). Under that standard, we see no error. The

instructions properly identified the elements of Castro’s claim

against the entity defendants. The district court’s decision to

focus the jury’s attention on the particular custom or practice

alleged was neither misleading nor inadequate. See id.

(stating that the appellate court determines whether the

instructions, considered as a whole, are misleading or

inadequate). To the contrary, the instruction clarified

precisely what the jury was called on to decide.

2. Policy or Custom Causing Injury

The “first inquiry in any case alleging municipal liability

under § 1983 is the question whether there is a direct causal

link between a municipal policy or custom and the alleged

constitutional deprivation.” City of Canton, 489 U.S. at 385.

The custom or policy must be a “deliberate choice to follow

a course of action . . . made from among various alternatives

by the official or officials responsible for establishing final

policy with respect to the subject matter in question.”

Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986)

(plurality opinion).

As noted, the entity defendants argue that the architecture

of the West Hollywood police station’s sobering cell cannot

be a policy, custom, or practice. We need not decide that

28 CASTRO V. CTY. OF LOS ANGELES

question, because the design of the cell is not the custom or

practice alleged by the plaintiff and found by the jury.

Whether or not the design of the cell is a policy, custom, or

practice, it is a fact; the sobering cell lacked audio monitoring

and video surveillance.8

That is, the design of the cell is only the backdrop for the

entity defendants’ policy or custom, as described in the jury

instructions and as reflected in the record. The LASD and the

County made deliberate choices in light of the poor design

and location of the sobering cell. There was a custom of

housing intoxicated inmates in sobering cells that contained

inadequate audio monitoring. A representative of the County

admitted that other options existed; there were other cells in

which to detain intoxicated prisoners. The entities chose a

policy to check on inmates only every 30 minutes. A

representative of the County testified that supervision of the

sobering cell consisted of “half-hour checks by the jailer.”

These routine practices were consciously designed and,

together, they amount to a custom or policy.9 The custom or

8

We note, though, that every construction project requires deliberate

choices in design and implementation. The West Hollywood station is no

exception. For example, the County admitted that it chose not to install

a video camera that records what happens inside the cell, because it

wanted to protect the privacy of detainees.

9

Judge Callahan’s dissent takes issue with formulating a “custom or

practice” that has more than one component. Callahan, J., dissenting at

41–43. The entity defendants have not made that argument and, therefore,

have forfeited or waived it. See Greenwood v. Fed. Aviation Admin.,

28 F.3d 971, 977 (9th Cir. 1994) (holding that generally we will not

consider issues not presented in an appellant’s opening brief). Moreover,

a “custom or practice” need not be narrowly unitary in this context. We

have found no case holding that a “policy” must be one-dimensional. To

the contrary, many cases describe multi-faceted policies, which are not

CASTRO V. CTY. OF LOS ANGELES 29

policy, in summary, was to use a sobering cell that lacked

adequate audio surveillance to detain more than one

belligerent drunk person while checking the cell visually only

once every half hour.

The entity defendants’ custom or policy caused Castro’s

injury. Had the entity defendants provided consistent

monitoring, or had the entity defendants required Castro and

his attacker to be housed in different locations, which were

available,10 Gonzalez’ attack on Castro could have been

averted. The stated purpose of the sobering cell is the

housing of prisoners who are a threat to their own safety. But

the absence of frequent visual checks and the lack of audio

rejected for that reason. See, e.g., Garcia v. County of Riverside, 817 F.3d

635, 638, 642 (9th Cir. 2016) (describing the relevant policy of the Los

Angeles Sheriff’s Department as having several components).

10

Judge Callahan’s dissent also appears to argue that there cannot be a

deliberately chosen custom or practice of housing a belligerent detainee

in the same sobering cell as another detainee because a written policy

prohibited it. Callahan, J., dissenting at 43 n.5. But a plaintiff can show

a custom or practice of violating a written policy; otherwise an entity, no

matter how flagrant its actual routine practices, always could avoid

liability by pointing to a pristine set of policies. See City of St. Louis v.

Praprotnik, 485 U.S. 112, 127 (1988) (plurality opinion) (holding that

“egregious attempts by local governments to insulate themselves from

liability for unconstitutional policies are precluded” and “a plaintiff may

be able to prove the existence of a widespread practice that, although not

authorized by written law or express municipal policy, is so permanent

and well settled as to constitute a custom or usage with the force of law”

(internal quotation marks omitted)). Here, for example, there was

testimony that “two or more belligerent drunk individuals” were housed

in “this detox cell” “[m]any times.” Taking the facts in the light most

favorable to the prevailing party, as our standard of review requires, we

conclude that the jury permissibly found that such testimony established

a policy of deliberate indifference.

30 CASTRO V. CTY. OF LOS ANGELES

monitoring clearly made the risk of serious harm to such

prisoners substantial. The jury found that LASD’s and the

County’s custom or practice caused Castro’s injury.

Substantial evidence supports the jury’s findings.

3. Deliberate Indifference

It is not sufficient for a plaintiff to identify a custom or

policy, attributable to the municipality, that caused his injury.

A plaintiff must also demonstrate that the custom or policy

was adhered to with “deliberate indifference to the

constitutional rights of [the jail’s] inhabitants.” City of

Canton, 489 U.S. at 392.

The Supreme Court has strongly suggested that the

deliberate indifference standard for municipalities is always

an objective inquiry. In City of Canton, which concerned a

Fourteenth Amendment claim for failure to train, the Court

held that a municipality was deliberately indifferent when

“the need for more or different training is so obvious, and the

inadequacy so likely to result in the violation of constitutional

rights, that the policymakers of the city can reasonably be

said to have been deliberately indifferent to the need.” Id. at

390. The Court articulated a standard permitting liability on

a showing of notice: “Where a § 1983 plaintiff can establish

that the facts available to city policymakers put them on

actual or constructive notice that the particular omission is

substantially certain to result in the violation of the

constitutional rights of their citizens, the dictates of Monell

are satisfied.” Id. at 396 (emphasis added).

In Farmer, the Court clarified its earlier holding: “[I]t

would be hard to describe the Canton understanding of

deliberate indifference, permitting liability to be premised on

CASTRO V. CTY. OF LOS ANGELES 31

obviousness or constructive notice, as anything but

objective.” Farmer, 511 U.S. at 841. The Court understood

that this objective standard necessarily applied to

municipalities for the practical reason that government

entities, unlike individuals, do not themselves have states of

mind: “Needless to say, moreover, considerable conceptual

difficulty would attend any search for the subjective state of

mind of a governmental entity, as distinct from that of a

governmental official.” Id. We, too, have recognized that an

objective standard applies. Gibson v. County of Washoe,

290 F.3d 1175, 1195 (9th Cir. 2002). To the extent that

Gibson or our other cases suggest otherwise, we now overrule

those holdings.

Here, substantial evidence supported the jury’s finding

that the County knew that its cell design might lead to a

constitutional violation among its inhabitants. At the time of

the attack in this case, the Los Angeles County Code

“adopted by reference and incorporated into . . . the Los

Angeles County Code as if fully set forth below” chapters of

the California Building Code.11 L.A. Cty. Code tit. 26, ch. 1,

§ 100 (2007). In turn, the California Building Code requires

“an inmate- or sound-actuated audio monitoring system in . . .

sobering cells . . . which is capable of alerting personnel who

can respond immediately.” Cal. Bldg. Code tit. 24

§ 1231.2.22 (2007). Furthermore, the West Hollywood police

station’s own manual mandates that a sobering cell “allow for

11

Even though the County Code provision was not in evidence in the

district court, we may take judicial notice of it because it is “not subject

to reasonable dispute” and “can be accurately and readily determined from

sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid.

201(b)(2); see also Santa Monica Food Not Bombs v. City of Santa

Monica, 450 F.3d 1022, 1025 n.2 (9th Cir. 2006) (holding that local

ordinances are proper subjects for judicial notice).

32 CASTRO V. CTY. OF LOS ANGELES

maximum visual supervision of prisoners by staff.” The

station manual forbids the use of non-compliant sobering

cells.

Judge Callahan’s dissent makes much of the fact that the

California Building Code contains a “grandfather” clause.

Callahan, J., dissenting at 38. But the dissent overlooks that

the West Hollywood manual contains no such “grandfather”

clause. To the contrary, that manual expressly refers to

current building standards and expressly declines to permit

the use of older cells simply by virtue of their having been

previously compliant:

A sobering cell is generally defined as a

cell with a padded floor and standard toilet

with a padded partition on one side for

support. It must allow for maximum visual

supervision of prisoners by staff. For specific

construction specifications refer to Uniform

Building Code, Title 24, Section 13-102(c)2

and 13-102(c)3.

Most station sobering cells (built prior to

current State standards) have a hard floor,

standard toilet, wash basin, drinking fountain,

and a solid raised ledge or bench. Unless

otherwise exempted by the State Board of

Corrections, these sobering cells are out of

compliance with current standards and should

not be utilized.

The West Hollywood sobering cell was non-compliant in at

least two respects, in that it lacked all the required padding

CASTRO V. CTY. OF LOS ANGELES 33

and, more importantly for our purposes, did not “allow for

maximum visual supervision of prisoners by staff.”

The County Board of Supervisors’ affirmative adoption

of regulations aimed at mitigating the risk of serious injury to

individuals housed in sobering cells, and a statement to the

same effect in the station’s manual, conclusively prove that

the County knew of the risk of the very type of harm that

befell Castro. See Brown, 520 U.S. at 405–06 (describing

Owen v. City of Independence, 445 U.S. 662 (1980), and City

of Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981), as

municipal liability cases involving “no difficult questions of

fault” because they involved “formal decisions of municipal

legislative bodies”). The adoption of a regulation by the

County’s legislative body suffices as proof of notice because

the County necessarily has knowledge of its own ordinances.

We have said that “a municipality’s policies [that] explicitly

acknowledge that substantial risks of serious harm exist” may

demonstrate municipal knowledge of that risk for the

purposes of a Fourteenth Amendment failure-to-protect

claim. Gibson, 290 F.3d at 1188 n.10. Here, the ordinance

adopted by the County is a policy that explicitly

acknowledges the relevant substantial risks of serious harm.

Accordingly, the entity defendants had notice that their

customs or policies posed a substantial risk of serious harm

to persons detained in the West Hollywood sobering cell and

were deliberately indifferent to that risk. Therefore, we

affirm the judgment against the entity defendants.

AFFIRMED.

34 CASTRO V. CTY. OF LOS ANGELES

CALLAHAN, Circuit Judge, with whom BEA and IKUTA,

Circuit Judges join, dissenting in part:

I agree that the judgment against the individual

defendants should be affirmed,1 but I dissent from the

affirmance of the judgment against the entity defendants. I

agree with the majority’s conceptual approach: we must first

determine whether the entity defendants had a policy or

custom that caused Castro’s injury, and second determine

whether the policy or custom reflected deliberate

indifference. Maj. Op. at 26–27. However, the majority

understates what is necessary to show a policy related to

Castro and uses “smoke and mirrors” to find deliberate

indifference. Regardless of what evidence Castro might have,

could have, or should have produced at trial, the record in this

case—even construed in the light most favorable to Castro—

permits only one conclusion: the County of Los Angeles did

not have a policy or custom that reflected deliberate

indifference and caused Castro’s injury.

I. The Legal Standard for Monell Liability

The Supreme Court has been fairly consistent in

explaining the basis for Monell liability. In Pembaur v. City

of Cincinnati, the Court held “municipal liability under

§ 1983 attaches where—and only where—a deliberate choice

to follow a course of action is made from among various

alternatives by the official or officials responsible for

1

As the majority opinion makes clear, the judgment against the

individuals is sound even under the standard set forth in Clouthier v.

County of Contra Costa, 591 F.3d 1232 (9th Cir. 2010). Thus, while I

agree with the majority that the judgment against the individual defendants

should be affirmed, I do not join in its reasoning.

CASTRO V. CTY. OF LOS ANGELES 35

establishing final policy with respect to the subject matter in

question.” 475 U.S. 469, 483 (1986).

In City of Canton, Ohio v. Harris, the Court addressed

“whether a municipality’s failure to train employees can ever

be a basis for § 1983 liability.” 489 U.S. 378, 388 (1989). It

held “that the inadequacy of police training may serve as the

basis for § 1983 liability only where the failure to train

amounts to deliberate indifference to the rights of persons

with whom the police come into contact,” and the policy was

“the moving force [behind] the constitutional violation.” Id.

(internal quotation marks omitted). The Court emphasized

that “the need for more or different training [must be] so

obvious, and the inadequacy so likely to result in the violation

of constitutional rights, that the policymakers of the city can

reasonably be said to have been deliberately indifferent to the

need.” Id. at 390.

In Board of County Commissioners of Bryan County,

Oklahoma v. Brown, 520 U.S. 397, 404–05 (1997), the Court

explained:

As our § 1983 municipal liability

jurisprudence illustrates, however, it is not

enough for a § 1983 plaintiff merely to

identify conduct properly attributable to the

municipality. The plaintiff must also

demonstrate that, through its deliberate

conduct, the municipality was the “moving

force” behind the injury alleged. That is, a

plaintiff must show that the municipal action

was taken with the requisite degree of

culpability and must demonstrate a direct

36 CASTRO V. CTY. OF LOS ANGELES

causal link between the municipal action and

the deprivation of federal rights.

More recently, in Connick v. Thompson, the Supreme

Court reiterated that deliberate indifference “is a stringent

standard of fault, requiring proof that a municipal actor

disregarded a known or obvious consequence of his action.”

563 U.S. 51, 61 (2011) (quoting Brown, 520 U.S. at 410).

The Court explained, “[a] less stringent standard of fault for

a failure-to-train claim ‘would result in de facto respondeat

superior liability on municipalities.’” Id. (quoting City of

Canton, 489 U.S. at 392).

Accordingly, even accepting that an “objective” standard

applies to the inquiry into the propriety of a municipality’s

actions, Monell liability requires first, a showing of “a

deliberate choice to follow a course of action . . . from among

various alternatives.” Pembaur, 475 U.S. at 483. Second,

where Monell liability is based on the municipality’s failure

to act or to train its employees, there must be a showing of

deliberate indifference: “proof that a municipal actor

disregarded a known or obvious consequence of his action.”

Brown, 520 U.S. at 410. Third, there must be a “a direct

causal link between the municipal action and the deprivation

of federal rights.” Id. at 404.

CASTRO V. CTY. OF LOS ANGELES 37

II. The record does not support a finding of a deliberate

choice sufficient to support Monell liability

1. Castro presented insufficient evidence to support a

finding that the West Hollywood station’s sobering

cell was unsafe.

The majority asserts that when Castro was assaulted in

2009, the applicable building codes required maximum visual

supervision and that sobering cells contain an audio-

monitoring system. Maj. Op. at 6. But the record in this case

does not support this conclusion.

No evidence was introduced at trial that federal or state

law required video monitoring of a sobering cell. No County

Code provisions or relevant California statutes were

introduced at trial. Moreover, it appears that the California

Building Code, tit. 24, § 1231.2.22 (2007), which the

majority cites, did not say anything about sobering cells.

Coverage of sobering cells was added to that section when the

code was updated in 2010, after Castro had been assaulted.

Cal. Building Code tit. 24 § 1231.2.22 (2010).

Instead, the majority relies on the County Board of

Supervisors’ adoption “through legislative action” of

provisions of the California Building Code that the majority

characterizes as “aimed at mitigating the risk of serious injury

to individuals housed in sobering cells.” See Maj. Op. at 6,

33. But the County Code provision adopting the provisions

of the California Building Code was not placed in evidence

in the district court. As this material was not before the jury,

the jury could not have relied upon it to find a policy or

custom.

38 CASTRO V. CTY. OF LOS ANGELES

Furthermore, the majority’s characterization of the

“legislative action” is hardly fair. In 2007, the County

adopted by reference and incorporated into its code several

chapters of the California Building Code. Within the over

1,300 pages adopted are provisions calling for maximum

visual supervision and audio-monitoring of sobering cells.

Cal. Bldg. Code tit. 24 §§ 1231.2.4, 1231.2.22. But this did

not give rise to the constructive knowledge alleged by the

majority because the California Building Code has a

“grandfather” clause. It provides that “[t]hese requirements

shall not be applicable to facilities which were constructed in

conformance with the standards of the Corrections Standard

Authority in effect at the time of initial architectural

planning.” Cal. Code Regs. Title 24, § 13-102(6) (2008).

Indeed, we previously recognized the import of this clause in

Blackwell v. City & County of San Francisco, 506 F. App’x

585, 587 (9th Cir. 2013) (unpublished) (citing the statement

in Californians for Disability Rights v. Mervyn’s LLC,

165 Cal. App. 4th 571 (2008), that Title 24 “does not require

facilities that predate its enactment to comply with its

regulations unless and until the facility is altered”). In

addition, the existence of the grandfather clause indicates that

the new audio and visual monitoring standards in the

California Building Code were not essential for the safety of

detainees. Thus, the County’s adoption of 1,300 pages of the

California Building Code in 2007, could not have alerted the

County to the alleged risk of being housed in the West

Hollywood station’s sobering cell.

At the end of its opinion, the majority attempts to

downplay the importance of the grandfather clause by arguing

that a provision in the West Hollywood manual does not

contain a grandfather clause. Maj. Op. at 32. This is true, but

the document is not sufficient to support Monell liability.

CASTRO V. CTY. OF LOS ANGELES 39

While the cited first paragraph of the West Hollywood

station’s manual generally defines a sobering cell and

requires “maximum visual supervision of prisoners by staff,”

the second paragraph states:

Most station sobering cells (built prior to

current State standards) have a hard floor,

standard toilet, wash basin, drinking fountain,

and a solid raised ledge or bench. Unless,

otherwise exempted by the State Board of

Corrections, these sobering cells are out of

compliance with current standards and should

not be utilized.

Notably, the inadequacy of visual inspection is not listed as

an example of non-compliance excluding the use of a

sobering cell. Moreover, this provision presumably

precluded the use of the West Hollywood sobering cell by

anyone at any time. It does not appear that the general

propriety of using the West Hollywood station’s sobering cell

was raised or considered in the trial court.2

Furthermore, Castro offered no evidence as to whether the

sobering cell met that applicable standards when it was built

or those in effect in 2007. He was offered an opportunity to

present evidence of prior incidents at the West Hollywood

station, but declined to do so. Indeed, it appears that Castro’s

choice to focus on the officers’ deliberate indifference was

2

The majority asserts that the sobering cell was non-compliant both

because it “lacked all the required padding” and did not “allow for

maximum visual supervision of prisoners by staff.” Maj. Op. at 32–33.

This seems to detract from its argument that there was a “deliberate

choice” not to monitor Castro.

40 CASTRO V. CTY. OF LOS ANGELES

both strategic and successful. An argument that the structure

of the West Hollywood police station was even partially

responsible for Castro’s injuries might have, in the eyes of the

jury, reduced the level of the individual officers’ culpability.

The record in this case does not support an inference that

any provision in the station manual or the adoption of various

chapters of the California Building Code somehow

established that the West Hollywood station’s sobering cell

presented a known or obvious danger.

2. There is insufficient evidence to support a finding of

a custom or policy.

The majority proceeds to offer a hodgepodge of rationales

in an attempt to discern a deliberate choice or policy. First,

implicitly acknowledging the lack of evidence concerning the

propriety of the design of the sobering cell, the majority

disclaims that the design of the cell is a policy, custom, or

practice, asserting that “the design of the cell is only the

backdrop.”3 Maj. Op. at 28. Second, the majority asserts that

“in light of the poor design and location of the sobering cell

. . . there was a custom of housing intoxicated inmates in

sobering cells that contained inadequate audio monitoring.”

Maj. Op. at 28. Third, it asserts that there were “other cells

3

Nonetheless, in a footnote the majority suggests that the construction

of the cell was a deliberate choice. Maj. at 28 n.8. In support of this

assertion, the majority cites a deputy who stated that they did not put a

video camera in the cell “because of privacy issues.” However, the deputy

also noted that there is a video camera outside the cell that is aimed

through the cell door’s window. In any event, the comments of a deputy

whose assignment to the West Hollywood station began well after the

station was constructed, do not support a finding of “deliberate choice in

design and implementation.”

CASTRO V. CTY. OF LOS ANGELES 41

in which to detain intoxicated prisoners.” Maj. Op. at 28.

Fourth, the majority criticizes the “half-hour checks by the

jailer.” Maj. Op. at 28. The majority then cobbles these

assertions together and proclaims that they constitute a

custom or policy “to use a sobering cell that lacked adequate

audio surveillance to detain more than one belligerent drunk

person while checking the cell visually only once every half

hour.” Maj. Op. at 28–29.

This conclusion is illusory. First, it depends on a “policy”

which does not exist. There is no policy “to place more than

one belligerent drunk” in one cell. Rather, there was an

explicit written policy forbidding the placement of more than

one person in the detoxication cell. A deputy testified that

when it became absolutely necessary to place a second person

in the detoxication cell, they would take the less belligerent

individual over to the Beverly Hills station and use its

sobering cell. Indeed, the majority itself affirms that the

individual defendants knew that Castro “was too intoxicated

to care for himself; they knew that Gonzalez, a felony

arrestee, was enraged and combative; they knew or should

have known that the jail’s policies forbade placing the two in

the same cell in those circumstances; and they knew or should

have known that other options for placing them in separate

cells existed.” Maj. Op. at 23 (emphasis added).

Second, the majority’s “the whole is greater than the sum

of its parts” argument is not persuasive. Neither the

individual parts nor their accumulation amount to a deliberate

choice among various alternatives. The statement that there

“was a custom of housing intoxicated inmates in sobering

cells that contained inadequate audio monitoring” simply

restates the majority’s factually unsupported conclusion that

inadequate audio monitoring at the West Hollywood station

42 CASTRO V. CTY. OF LOS ANGELES

violated Castro’s constitutional rights. That there were other

cells available makes it clear that the officers should have

followed the County’s policy against placing a second person

in the sobering cell. Also, the majority’s denigration of the

half-hour checks lacks any evidentiary basis. There is

nothing in the record to suggest this policy was unreasonable

or reflected deliberate indifference to the constitutional rights

of detainees. Indeed, there was testimony that the half-hour

checks were mandated by both state and department rules.

The record in this case includes no evidence that anyone

in the County had considered, prior to this litigation, whether

the new California Building Codes, with its grandfather

clause, applied, or might have applied, to the West

Hollywood police station. While there was evidence of the

station’s physical layout, there was no evidence that the

spacing had caused any prior problems.4 Rather than reflect

deliberate indifference, the “choices” the majority

manufactures from a sparse record appear to be independent

factors that by chance coincided to Castro’s detriment,

primarily because the individual officers failed to house

Castro separately as required by the County’s policy.

Of course, a custom or policy may have more than one

component and may be contrary to a written policy. See Maj.

Op. at 28–29, nn. 9–10. However, here, Castro failed to

4

The majority suggests that the County has failed to preserve the

argument that there was no evidence of prior incidents of harm. Maj. Op.

at 26 n.7. But our inquiry is whether there are any indicia of a policy of

deliberate indifference. The County’s alleged waiver does not create

evidence that was never admitted (and may not exist).

CASTRO V. CTY. OF LOS ANGELES 43

present a factual basis that can support a finding of deliberate

indifference.5

III. There is no evidence of deliberate indifference

The majority quotes from the Supreme Court’s opinion in

City of Canton to support the position that constructive notice

may be sufficient to establish the deliberate indifference

required for Monell liability. Maj. Op. at 30 (quoting City of

Canton, 489 U.S. at 396). But, as noted, the Supreme Court

further explained that “the inadequacy of police training may

serve as the basis for § 1983 liability only where the failure

to train amounts to deliberate indifference to the rights of

persons with whom the police come in contact.” Id. at 388

(emphasis added). In Connick the Supreme Court reiterated

that deliberate indifference requires “proof that a municipal

5

The assertion at the end of the majority’s footnote 9 that two or more

belligerent drunks were housed in the detox cells many times, reflects the

dangers inherent in an appellate court reviewing the record to determine

facts that were not developed at trial. The officer who testified that two

“belligerent” drunks might be placed in the same cell, defined belligerent

as:

Not following instructions, just pretty much not

wanting to be in there and just not going with the

program, but it doesn’t mean they were not getting

along with other people. Just pretty much not helping

us to give us information and just pretty much just

manners kind of thing. Not physical. Not that they

would show violence to people around them but mostly

to the staff. Just annoyance kind of thing.

Moreover, as previously noted, there was also testimony that “99.9 percent

of the time” when they had more than one belligerent and combative

persons they would “take the less combative or belligerent of the two over

to the Beverly Hills station and use their sobering cell.”

44 CASTRO V. CTY. OF LOS ANGELES

actor disregarded a known or obvious consequence of his

action.” 563 U.S. at 61 (quoting Brown, 520 U.S. at 410). In

City of Canton, the Court explained that “the need for more

or different training [must be] so obvious, and the inadequacy

so likely to result in the violation of constitutional rights, that

the policymakers of the city can reasonably be said to have

been deliberately indifferent to the need.” 489 U.S. at 390

(emphasis added). Justice Brennan, in his concurring

opinion, noted that only where “a § 1983 plaintiff can

establish that the facts available to city policymakers put

them on actual or constructive notice that the particular

omission is substantially certain to result in the violation of

the constitutional rights of their citizens” are the dictates of

Monell satisfied. 489 U.S. at 396 (Brennan, J., concurring).

Here, there was no “known or obvious consequence,”

there was nothing “so obvious” or “so likely to result in the

violation of constitutional rights” as to support a

determination of deliberate indifference, and there was no

substantial certainty. Castro was attacked by Gonzalez who,

pursuant to the County’s express policy, should not have been

placed in the cell occupied by Castro. There is nothing to

suggest that the County should have anticipated violations of

its policy. Moreover, the majority observes that the jury

found that the individual officers “knew or should have

known that the jail’s policies forbade placing the two together

in the same cell in those circumstances.” Maj. Op. at 23.

Fairly viewed, the record is devoid of evidence that the

County “disregarded a known or obvious consequence,”

Connick, 563 U.S. at 61, and there is neither the obviousness

nor the likelihood of a violation of a constitutional right

necessary to support a finding of deliberate indifference. See

City of Canton, 489 U.S. at 390.

CASTRO V. CTY. OF LOS ANGELES 45

IV. There is no direct causal link between the

County’s conduct and Castro’s injuries

The majority’s need to cobble together different “choices”

in order to construct a policy of deliberate indifference also

reflects the fact that there is no direct causal link between the

policy perceived by the majority and Castro’s injury. Castro

was injured by Gonzalez, a violent detainee who was placed

in the sobering cell with Castro in direct contravention of the

County’s clear policy against such placement. Moreover,

Castro’s injuries resulted from, or were aggravated by, his

jailer’s reckless disregard. The majority itself notes:

Solomon failed to respond to Castro’s banging

on the window in the door of the cell. Jail

video of the hallway showed Castro pounding

on his cell door for a full minute, while

Solomon remained unresponsive, seated at a

desk nearby. Solomon failed to respond fast

enough to Gonzalez’s inappropriate touching

of Castro.

Maj. Op. at 23. Indeed, the jury determined that the

individual defendants were liable for punitive damages

because they had “act[ed] with malice, oppression, or reckless

disregard for plaintiff’s rights.” We, in turn, have affirmed

the punitive damages award. Maj. Op. at 9 n.2.

There is no direct link between any of the alleged

“choices” identified by the majority and Castro’s assault. The

adoption of the Building Code provides no connection as the

Code included a grandfather clause exempting buildings like

the West Hollywood station from the new audio and visual

monitoring standards. There was no evidence that the

46 CASTRO V. CTY. OF LOS ANGELES

conditions in the sobering cell endangered detainees, absent

the unauthorized placement of a violent detainee into the cell.

There was no evidence showing that the “choice” of visual

checks every 30 minutes was insufficient to protect properly

placed detainees.

In Clouthier v. County of Contra Costa, we noted the

Supreme Court’s warning that “[i]n virtually every instance

where a person has had his or her constitutional rights

violated by a city employee, a § 1983 plaintiff will be able to

point to something the city ‘could have done’ to prevent the

unfortunate incident.” 591 F.3d at 1253–54 (quoting Canton,

489 U.S. at 392). We concluded that “[h]olding the County

liable for the missteps of its employees in this case would

therefore amount to ‘de facto respondeat superior liability,’

an avenue rejected in Monell.” This conclusion is equally

applicable to this case. See Molton v. City of Cleveland,

839 F.2d 240, 246 (6th Cir. 1988) (noting that “[t]he City’s

failure to build a suicide-proof jail cell, and its inadequate

training of its police force, may well be acts of negligent

omission, but they have not been shown to be the result of

municipal policy: ‘a deliberate choice to follow a course of

action . . . made from among various alternatives by the

official or officials responsible for establishing formal policy

with respect to the subject matter in question.’”) (quoting

Pembaur, 475 U.S. at 483). On the record before us, holding

the County liable is tantamount to de facto respondeat

superior liability, which the Supreme Court has consistently

disapproved. See Connick, 563 U.S. at 61; Canton, 489 U.S.

at 392.

CASTRO V. CTY. OF LOS ANGELES 47

V. Conclusion

Castro’s tragic injuries were a preventable tragedy, and

we affirm the jury’s determination of the individual

defendants’ culpability. However, the evidence proffered by

Castro at trial does not support a finding that the County had

a policy or custom that reflected deliberate indifference that

led to Castro’s injuries. Castro presented insufficient

evidence that audio monitoring was required for the West

Hollywood station’s sobering cell in 2009. The adoption of

California Building Code standards for audio and visual

monitoring did not give the County even constructive notice

that monitoring at the West Hollywood police station might

be substandard because the Code includes a grandfather

clause stating that the new standards are not applicable to

existing structures. Moreover, there was no evidence of any

prior incidents. The other alleged “choices” manufactured by

the majority—the availability of other cells and “a policy to

check inmates only every 30 minutes”—do not support a

determination of deliberate indifference. Moreover, the

immediate cause of Castro’s injuries was the individual

officers’ placement of Gonzalez in Castro’s cell in direct

violation of the County’s policy. In sum, there is insufficient

evidence to support a finding of deliberate indifference by the

County and there is no direct causal link between the

County’s maintenance of the West Hollywood sobering cell

and Castro’s injuries. Accordingly, I would vacate the award

against the entity defendants.

48 CASTRO V. CTY. OF LOS ANGELES

IKUTA, Circuit Judge, with whom, CALLAHAN and BEA,

Circuit Judges, join, dissenting:

I join Judge Callahan’s dissent in full, but I write

separately to express my dismay that the majority has

misinterpreted Kingsley v. Hendrickson, 135 S. Ct. 2466

(2015), and made a mess of the Supreme Court’s framework

for determining when pretrial detainees have suffered

punishment in violation of their Fourteenth Amendment due

process rights.

I

A pretrial detainee has a constitutional right under the

Fourteenth Amendment to be free from punishment without

due process of law. Bell v. Wolfish, 441 U.S. 520, 534

(1979); Ingraham v. Wright, 430 U.S. 651, 671 n.40 (1977).

According to Bell, when a pretrial detainee alleges a violation

of a constitutional right (and does not point to a violation of

any “express guarantee of the Constitution”), the only

question is whether the situation at issue amounts to

punishment of the detainee. 441 U.S. at 534. This right to be

free from punishment under the Due Process Clause is the

only constitutional right at issue in this case; neither Castro

nor the majority claims that any other constitutional right is

at issue.

Under Supreme Court precedent, there are four ways

for pretrial detainees to establish that they were

unconstitutionally punished.

First, and most obviously, a pretrial detainee can show

that a government official’s action was taken with an

CASTRO V. CTY. OF LOS ANGELES 49

“expressed intent to punish.” Kingsley, 135 S. Ct. at 2473

(quoting Bell, 441 U.S. at 538).

Second, a pretrial detainee can show that a government

official’s deliberate action was objectively unreasonable. Id.

at 2472–73. An objectively unreasonable action is one that

is not reasonably related to the government’s legitimate

interests, like interests in managing the detention facility and

maintaining order. Id. at 2473. Because an objectively

unreasonable action has no “legitimate nonpunitive

governmental purpose,” it indicates an intent to punish. Id.

(quoting Bell, 441 U.S. at 561). A claim that an official used

excessive force, rather than reasonable force necessary to

maintain order, falls into this category. Id.

Third, a pretrial detainee can establish that a restriction or

condition of confinement, such as a strip search requirement,

is not reasonably related to a legitimate government purpose,

which indicates that the purpose behind the condition is

punishment. “[I]f a restriction or condition is not reasonably

related to a legitimate goal—if it is arbitrary or

purposeless—a court permissibly may infer that the purpose

of the governmental action is punishment that may not

constitutionally be inflicted upon detainees qua detainees.”

Bell, 441 U.S. at 539.

Finally, a pretrial detainee can show that a governmental

official’s failure to act constituted punishment if the detainee

can establish that the official was deliberately indifferent to

a substantial risk of harm. The Supreme Court has made

clear that a failure to act is not punishment at all unless the

government official actually knew of a substantial risk and

consciously disregarded it. Farmer v. Brennan, 511 U.S. 825,

837–38 (1994). This standard follows from the “intent

50 CASTRO V. CTY. OF LOS ANGELES

requirement” implicit in the word “punishment,” Wilson v.

Seiter, 501 U.S. 294, 298–300 (1991); the unintentional or

accidental infliction of harm amounts at most to negligence,

which is not a due process violation, Kingsley, 135 S. Ct. at

2472. We have long applied this deliberate indifference

standard to claims that a government official failed to address

medical needs or otherwise protect pretrial detainees. See

Simmons v. Navajo Cty., Ariz., 609 F.3d 1011, 1017–18 (9th

Cir. 2010); Clouthier v. Cty. of Contra Costa, 591 F.3d 1232,

1241–42 (9th Cir. 2010); Lolli v. County of Orange, 351 F.3d

410, 418–19 (9th Cir. 2003); Cabrales v. Cty. of Los Angeles,

864 F.2d 1454, 1461 & n. 2 (9th Cir. 1988), cert. granted,

judgment vacated, 490 U.S. 1087 (1989), opinion reinstated,

886 F.2d 235 (9th Cir. 1989).

Castro’s claim falls into this last category. He alleges that

a government official actually knew of a substantial risk of

serious harm by putting Gonzalez in his cell and failed to

protect him from that risk. As stated in Judge Callahan’s

dissent, we can affirm the judgment against the individual

defendants on this ground.

II

Rather than apply this well-established framework, the

majority inexplicably holds that we must analyze a claim that

a government official’s failure to act constituted punishment

under the standard applicable to excessive force claims,

relying on the Supreme Court’s recent decision in Kingsley.

A description of Kingsley shows it is entirely inapposite.

In that case, when a detainee refused to remove a piece of

paper covering his light fixture, four officers handcuffed him,

forcibly removed him from the cell, and applied a Taser to his

CASTRO V. CTY. OF LOS ANGELES 51

back for about five seconds. 135 S. Ct. at 2470. The detainee

brought an action under § 1983 claiming that the officers used

excessive force against him in violation of the Fourteenth

Amendment’s Due Process Clause. Id. at 2470–71. The

Court held that where officers deliberately use force against

a pretrial detainee, the standard to determine whether the

force is excessive is an objective one. Id. at 2472–73. The

detainee need not prove that the officer intended to punish; it

amounts to punishment if “the force purposefully or

knowingly used against him was objectively unreasonable.”

Id. Kingsley is consistent with the Supreme Court cases

establishing that where the government official’s affirmative

acts are shown to be “excessive in relation” to any “legitimate

governmental objective,” a court “permissibly may infer” that

they are punitive in nature. Bell, 441 U.S. at 537–39.

But the Kingsley standard is not applicable to cases where

a government official fails to act. As explained in Bell, in

analyzing a pretrial detainee’s Fourteenth Amendment claim,

the key question is whether the situation at issue amounts to

a punishment of the detainee. Id. While punitive intent may

be inferred from affirmative acts that are excessive in

relationship to a legitimate government objective, the mere

failure to act does not raise the same inference. See Farmer,

511 U.S. at 837–38. Rather, a person who unknowingly

fails to act—even when such a failure is objectively

unreasonable—is negligent at most. Id. And the Supreme

Court has made clear that “liability for negligently inflicted

harm is categorically beneath the threshold of constitutional

due process.” Kingsley, 135 S. Ct. at 2472 (citing County of

Sacramento v. Lewis, 523 U.S. 833, 849 (1998)).

Realizing this difficulty, the majority fiddles with the

standard applicable to failure-to-act claims to create a new

52 CASTRO V. CTY. OF LOS ANGELES

test: It holds that a pretrial detainee can state a due process

violation for an official’s failure to act by showing that (i) the

official made an intentional decision with respect to the

plaintiff’s conditions of confinement; (ii) the decision put the

detainee at substantial risk of suffering serious harm; (iii) the

official was objectively unreasonable in not fixing the risk;

and (iv) the failure to undertake a fix caused the detainee’s

injuries. Maj. Op. at 19–20.

This test simply doesn’t fit a failure-to-act claim. On its

face, the majority’s test is underinclusive; it may relieve some

officials of liability despite their deliberate indifference. For

instance, under a straightforward application of the test, we

would have come out a different way in Lolli v. County of

Orange, 351 F.3d 410 (9th Cir. 2003). In that case, Lolli, a

pretrial detainee, told Deputy Walker that he was diabetic,

feeling very sick, and needed food. Id. at 420. Deputy Kent

was merely standing near Deputy Walker when Lolli shared

this information. Id. at 420. We held that Deputy Kent could

be liable based on his failure to provide medical care to Lolli

because a reasonable jury could have found that Deputy Kent

actually perceived Lolli’s serious medical need and failed to

bring him food. Id. at 420–21. Under the most natural

reading of the majority’s new test, Deputy Kent could not be

held liable because he made no “intentional decision with

respect to the conditions under which the plaintiff was

confined.” See Maj. Op. at 19–20. In other words, while the

majority’s test fits the specific facts of this case, where the

individual officers intentionally and unreasonably housed

Castro with a combative inmate, it doesn’t readily apply in

other failure-to-act cases where the plaintiff is unable to point

to the officer’s intentional decision with respect to the

plaintiff’s conditions.

CASTRO V. CTY. OF LOS ANGELES 53

To avoid this outcome, the majority simply announces

that a juror would likely conclude that if a “defendant actually

knew of a substantial risk of serious harm and consciously

took no action,” then “the defendant made an intentional

decision” with respect to the conditions under which the

plaintiff was confined, which satisfies the first prong of the

majority’s new test. Maj. Op. at 20 & n.4. Of course, this is

merely the old deliberate indifference standard. The rest of

the majority’s test adds nothing to this standard (the second

prong requires a showing that the officer’s inaction “put the

plaintiff at substantial risk of suffering serious harm,” and the

third prong requires a finding that the officer “did not take

reasonable available measures to abate that risk”). Maj. Op.

at 19–20. The majority apparently reinstates the deliberate

indifference standard because it cannot explain how an

official’s failure to act could otherwise constitute an

intentional decision. In other words, the majority has simply

dressed up the Farmer test in Kingsley language for no

apparent reason; it conflates the two standards only to end up

where we started.

In sum, the majority unnecessarily muddles our long-

standing test for claims alleging that an officer’s failure to act

amounted to punishment based on its mistaken assumption

that it must achieve consistency with the test enunciated in

Kingsley. But Kingsley applies to a different category of

claims: those involving intentional, objectively unreasonable

actions. Because the majority’s reasoning is both mistaken

and unnecessary, I dissent.