Shane Horton v. City of Santa Maria

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SHANE HORTON, by his Guardian Ad No. 15-56339

Litem Yvonne Horton,

Plaintiff-Appellee, D.C. No.

2:14-cv-06135-

v. SJO-PJW

CITY OF SANTA MARIA; SANTA

MARIA POLICE DEPARTMENT; OPINION

ANDREW BRICE,

Defendants-Appellants.

Appeal from the United States District Court

for the Central District of California

S. James Otero, District Judge, Presiding

Argued and Submitted February 15, 2018

Pasadena, California

Filed February 1, 2019

Before: Marsha S. Berzon and Jay S. Bybee, Circuit

Judges, and Sharon L. Gleason,* District Judge.

Opinion by Judge Berzon;

Dissent by Judge Bybee

*

The Honorable Sharon L. Gleason, United States District Judge for

the District of Alaska, sitting by designation.

2 HORTON V. CITY OF SANTA MARIA

SUMMARY**

Civil Rights

The panel reversed in part and affirmed in part the district

court’s order denying summary judgment to defendants in an

action brought pursuant to 42 U.S.C. § 1983 and California

law by a pretrial detainee who alleged that defendants

violated his Fourteenth Amendment right to be safeguarded

from injury and his state law right to medical care while in

custody.

After being arrested, plaintiff was detained in a temporary

holding cell and left unattended for around half an hour,

during which time he attempted suicide, causing permanent

and severe injury. With his mother acting as guardian ad

litem, plaintiff filed suit alleging, in part, that defendants

were deliberately indifferent to his safety because they failed

to take appropriate action after plaintiff’s mother had warned

a police officer over the phone that plaintiff was suicidal.

The panel held that defendant Officer Brice was entitled

to qualified immunity as a matter of law because a

reasonable officer would not have known that failing to

attend to plaintiff immediately after the phone call would be

unlawful under the law at the time of the incident. The panel

therefore reversed the district court’s denial of summary

judgment in favor of Officer Brice on the § 1983 claim.

**

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

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

HORTON V. CITY OF SANTA MARIA 3

The panel next held that it lacked jurisdiction to review

the district court’s denial of summary judgment in favor of

the municipal defendants on the § 1983 claim. The panel

noted that when a municipal defendant’s motion for summary

judgment is “inextricably intertwined” with issues presented

in the individual officers’ qualified immunity appeal, this

court may exercise pendent party appellate jurisdiction. The

panel held that in this case appellate resolution of the

officer’s appeal did not “necessarily” resolve the pendent

claim of municipal liability. The panel noted that its holding

that Officer Brice was entitled to qualified immunity did not

preclude the possibility that a constitutional violation may

nonetheless have taken place, including as a result of the

collective acts or omissions of Santa Maria Police

Department officers. The panel remanded to permit the

district court to consider the claims in light of this court’s

recent guidance in Castro v. County of Los Angeles, 833 F.3d

1060 (9th Cir. 2016) (en banc), and Gordon v. County of

Orange, 888 F.3d 118, 1125–26 (9th Cir. 2018).

Finally, the panel affirmed the district court’s denial of

summary judgment to defendants on the state law claim

brought pursuant to California Government Code § 845.6,

concluding that there was a genuine issue of material fact as

to liability under state law.

Dissenting in part, Judge Bybee joined the majority’s

holding that Office Brice was entitled to qualified immunity

for plaintiff’s deliberate-indifference claim under 42 U.S.C.

§ 1983 and that the panel lacked jurisdiction over the

municipal liability claim. Judge Bybee would have reversed

the district court’s denial of summary judgment on the state

law claim, because he believed that there was no basis under

California law for subjecting Officer Brice to suit.

4 HORTON V. CITY OF SANTA MARIA

COUNSEL

Timothy T. Coates (argued) and Jonathan H. Eisenman,

Greines Martin Stein & Richland LLP, Los Angeles,

California; Kristine L. Mollenkopf, Assistant City Attorney,

Santa Maria, California; Bruce D. Praet, Ferguson Praet &

Sherman, Santa Ana, California; for Defendants-Appellants.

Martin N. Buchanan (argued), Law Offices of Martin N.

Buchanan, San Diego, California; Rafael Gonzalez and Jared

M. Katz, Mack Staton Mullen & Henzel LLP, Santa Barbara,

California; Joseph Robert Finnerty and Robert W. Finnerty,

Girardi Keese, Los Angeles, California; for Plaintiff-

Appellee.

OPINION

BERZON, Circuit Judge:

This case concerns the attempted suicide of a jailed

pretrial detainee. Shane Horton was arrested for slashing an

acquaintance’s car tire and taken to the local police

department, where he was detained in a temporary holding

cell. Left unattended for around half an hour while the officer

in charge spoke to his mother and completed paperwork,

Horton removed his belt, fed it through the cell door bars, and

hanged himself, causing permanent and severe brain damage.

With his mother acting as guardian ad litem, Horton

brought suit under 42 U.S.C. § 1983 and California law. He

contends that the City of Santa Maria, the Santa Maria Police

Department, and several individual officers violated his

Fourteenth Amendment right to be safeguarded from injury

HORTON V. CITY OF SANTA MARIA 5

and his state law right to medical care while in custody. We

reverse the district court’s denial of qualified immunity on the

§ 1983 claims as to Officer Andrew Brice, conclude that we

lack jurisdiction to review the denial of summary judgment

on the § 1983 claims as to the municipal defendants, and

affirm the district court’s denial of summary judgment on the

state law claims.

I. Factual and Procedural History

In the months leading up to his arrest, eighteen-year-old

Horton had given his mother reason to be concerned. He

used drugs, including marijuana, “Molly” (a pure form of 3,4-

Methylenedioxymethamphetamine), and phencyclidine

(PCP), and contemplated suicide. On December 13, 2012, he

took PCP and “started freaking out.” He extinguished

cigarettes on his own face and hands, punched his fist through

a window, tried to cut his wrist with a piece of broken glass,

held a kitchen knife pointed at his throat, and, his mother

understood, threatened to kill himself. That night, he was

admitted to the emergency room, where he was initially held

as a suicide risk. But he specifically denied to hospital staff

any suicidal ideation, and the doctors came to suspect “that

[his problem] was mostly drugs.” Horton was discharged the

morning of December 14, 2012, after an emergency room

physician and a member of the county’s Crisis and Recovery

Emergency Services (“CARES”) team agreed that he was not

suicidal.

Approximately two weeks later, on the morning of

December 29, 2012, Horton and his girlfriend became

involved in a physical altercation. As his girlfriend was

driving away with a friend, Horton pulled out a folding knife

and slashed the tire of the friend’s car.

6 HORTON V. CITY OF SANTA MARIA

Officers Andrew Brice and Duane Schneider soon arrived

on the scene and found Horton. Horton admitted to slashing

the tire, pointed the police to the knife, and remained calm

and cooperative as the officers arrested him for misdemeanor

vandalism.

Officer Brice stayed to interview Horton’s girlfriend. She

disclosed that Horton had hit her several times in the past,

chased her with a knife, and stabbed a friend in the leg. She

also revealed that he had made comments about killing police

and sympathizing with the suspects in recent mass homicides.

While Officer Brice was speaking to Horton’s girlfriend,

Officer Schneider transported Horton to the police station,

where he patted Horton down, confiscated his wallet and

iPod, and placed him in a temporary holding cell. Officer

Schneider did not remove Horton’s jewelry or belt. As

Officer Schneider prepared to leave, Horton said he was

feeling anxious and “would really like to speak to someone”

— “not a therapist. Even you.” As they talked, Horton

explained to Officer Schneider that it had been “a really,

really, really rough three weeks straight.” He described his

recent drug use and the window-breaking incident, and said

that he “had the shit beat out of me fucking thousands of

times.” At one point, Officer Schneider asked if he had any

medical problems; Horton responded, “No, sir. Not that I

know of. I’m real healthy as I’m aware. I’m just — besides

feeling anxious right now and I hate being locked in a box

. . . . I don’t like being in a cell.”

HORTON V. CITY OF SANTA MARIA 7

Eventually, Officer Schneider left, stating that he would

“[p]robably do a psych or something.”1 He instructed Horton

to wave at the security camera if he needed anything. A few

minutes later, another police officer asked Horton if he had

any medical problems; Horton again said he did not.

Approximately an hour and a half later, Officer Brice

returned to the police station. Officer Brice spoke to Horton

privately in an interview room, explaining that Horton’s

girlfriend and her friend both said that Horton slapped the

girlfriend, and reporting that she had a mark on her consistent

with that allegation. Officer Brice said that Horton’s

girlfriend had been granted a restraining order against him for

one week, that he would be charged with felony domestic

violence, and that he had the option to post bail. At one point

during the conversation, Officer Brice asked Horton if he had

any medical conditions, and Horton once again replied, “No,

sir.”

At the end of the interview, Officer Brice brought Horton

back to the holding cell and gave him the opportunity to call

his mother, Yvonne Horton.2 Horton told his mother, “I’m in

jail right now. I’m going to get booked and go to [the main

county jail in] Goleta. You can choose to be there, get me out

on bail or not. . . . I would appreciate it [if you came to get

me out on bail], but it is up to you.” Yvonne apparently said

she would not bail him out, and he ended the conversation by

saying, “It’s okay, Mom. I’m sorry . . . . All right. I love

1

Officer Schneider presumably meant that he was considering

ordering a psychiatric evaluation of Horton.

2

We use “Yvonne” in this opinion to distinguish the mother from her

son.

8 HORTON V. CITY OF SANTA MARIA

you.” Before hanging up, Yvonne requested to speak

privately to Officer Brice.

Officer Brice left Horton in the cell and, out of Horton’s

earshot, called Yvonne back. Officer Brice spoke with

Yvonne for ten to fifteen minutes, during which time, she

stated in her deposition, she relayed “everything” about the

December 13, 2012 incident — Horton’s use of drugs, the

cigarette marks on his face and hands, the knife he held to his

throat, his hospitalization with an initial “5150” hold for risk

of suicide,3 the CARES official’s conclusion that he could be

discharged because his conduct was due to drugs not suicidal

ideation, and her disagreement with that conclusion. Yvonne

testified that she also told Officer Brice that her son was

depressed and suicidal, that she was really worried about him,

and that she believed he could be helped in the judicial

system. And she recounted that she instructed Officer Brice

to “please, watch him, please look after him, please.”4

3

California Welfare and Institutions Code § 5150 authorizes qualified

officers or clinicians to involuntarily take into custody a person who, “as

a result of a mental health disorder, is a danger to others, or to himself or

herself, or gravely disabled.” Cal. Welf. & Inst. Code § 5150.

4

Officer Brice denies that Yvonne ever used the terms “suicidal” or

“tried to kill himself.” He testified that Yvonne instead told him that

CARES declined to keep Horton “because they believed his actions were

drug induced,” which she was upset about, and that she was equivocating

on whether to bail him out, because she felt her son would be safer in jail

than out. However, in deciding this qualified immunity interlocutory

appeal, we rely on the record as most favorable to Horton, see Saucier v.

Katz, 533 U.S. 194, 201 (2001), overruled in part on other grounds by

Pearson v. Callahan, 555 U.S. 223, 236 (2009), and so disregard Officer

Brice’s testimony to the extent it contradicts that of Yvonne.

HORTON V. CITY OF SANTA MARIA 9

Officer Brice explained to Yvonne that he was getting

ready to transport Horton to jail, which Yvonne understood

to mean that they would be transporting him “very shortly.”

In response to Yvonne’s pleas to look after her son, Officer

Brice reassured her that “[h]e’s safe here.” When asked at

deposition whether she ever told the police officer he had to

go check on Horton immediately, she said, “I didn’t think that

I would have to do that. . . . I was under the impression, after

I spoke to [him] in that way, that he would go back and check

on him.”

Instead of going immediately back to the cell, Officer

Brice first went to complete the paperwork necessary to

transport Horton to jail and prepare the transport van. When

Officer Brice went to get Horton, approximately 27 minutes

after leaving him,5 Officer Brice discovered Horton hanging

from the cell door, not moving. Officer Brice immediately

called for assistance, administered CPR, and waited for the

paramedics to arrive to transport him to the hospital. Horton

survived the suicide attempt but suffered prolonged anoxia,6

resulting in severe and permanent brain damage.

5

As previously noted, Officer Brice’s conversation with Horton’s

mother lasted for approximately ten to fifteen minutes. In the first few

minutes of that conversation, Horton removed the belt he was wearing,

strung it through the cell door bars, looped it around his neck, and

slumped down. Approximately eight minutes before the phone call ended,

Horton was no longer seen moving in the security camera video. Another

twelve to seventeen minutes elapsed after the call ended before Officer

Brice returned to Horton’s cell and found him hanging.

6

Anoxia refers to a restriction in oxygen flow to the brain. The

longer the period of oxygen deprivation, the more severe the brain damage

and “the lower the chances of a full or meaningful recovery.” Daniels v.

Woodford, 428 F.3d 1181, 1194 n.18 (9th Cir. 2005).

10 HORTON V. CITY OF SANTA MARIA

With his mother acting as guardian ad litem, Horton filed

suit in October 2014 against the City of Santa Maria, the

Santa Maria Police Department, Officer Brice, Officer

Schneider, and other officers, claiming (1) negligence and

(2) § 1983 liability on the part of the individual officer

defendants, (3) liability on the part of the municipal

defendants, see Monell v. Dep’t of Soc. Servs., 436 U.S. 658

(1978), and (4) liability under California Government Code

§ 845.6 on the part of all defendants.

The district court granted summary judgment to all

defendants on the state law negligence claim and to all

officers except Officer Brice on the § 1983 claims. As to

Officer Brice, the district court held that there is a genuine

issue of fact regarding whether Officer Brice acted with

deliberate indifference to Horton’s safety after speaking with

his mother, and denied him qualified immunity. The court

also denied summary judgment to the municipal defendants

on Horton’s § 1983 claim that those defendants failed to

develop and adhere to a written policy regarding suicide

detection and prevention; failed to develop and adhere to

written policies regarding the identification and evaluation of

mentally disordered detainees; and failed adequately to train

their officers on such policies. Finally, the district court

denied summary judgment to Officer Brice and the municipal

defendants on the claim under California Government Code

§ 845.6, but granted summary judgment on that claim to the

other individual officers. Officer Brice and the municipal

defendants timely appealed. See Mitchell v. Forsyth,

472 U.S. 511, 530 (1985).

HORTON V. CITY OF SANTA MARIA 11

II. Discussion

A. Section 1983 Claim Against Officer Brice

The district court concluded that there is a genuine issue

of fact regarding whether Officer Brice acted with deliberate

indifference to Horton’s safety after speaking with his

mother, and denied the officer qualified immunity. Qualified

immunity protects government officials from liability for civil

damages unless their conduct violates “clearly established

statutory or constitutional rights of which a reasonable person

would have known.” Harlow v. Fitzgerald, 457 U.S. 800,

818 (1982). Plaintiffs bringing § 1983 claims against

individual officers therefore must demonstrate that (1) a

federal right has been violated and (2) the right was clearly

established at the time of the violation. Pearson v. Callahan,

555 U.S. 223, 232 (2009). We may “exercise [our] sound

discretion in deciding which of the two prongs of the

qualified immunity analysis should be addressed first.” Id. at

236. Here, we begin with the second, “clearly established”

prong, for reasons that will appear.

1. Clearly Established Law

“A clearly established right is one that is sufficiently clear

that every reasonable official would have understood that

what he is doing violates that right.” Isayeva v. Sacramento

Sheriff’s Dep’t, 872 F.3d 938, 946 (9th Cir. 2017) (quoting

Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)). At the time of

the events in this case, the generally applicable standard

established that officers who act with deliberate indifference

to the serious medical need of a pretrial detainee violated the

detainee’s constitutional rights under the Due Process Clause

of the Fourteenth Amendment. See, e.g., Conn v. City of

12 HORTON V. CITY OF SANTA MARIA

Reno, 591 F.3d 1081, 1090–91 (9th Cir. 2010), vacated,

563 U.S. 915 (2011), opinion reinstated in relevant part,

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

Under Ninth Circuit law at the time of the incident,

Fourteenth Amendment claims that officers acted with

deliberate indifference to the medical needs of a pretrial

detainee were governed by the same “deliberate indifference”

standard as Eighth Amendment claims for failure to prevent

harm to convicted prisoners. See Simmons v. Navajo County,

609 F.3d 1011, 1017 (9th Cir. 2010), overruled in part by

Castro v. County of Los Angeles, 833 F.3d 1060 (9th Cir.

2016) (en banc); Clouthier v. County of Contra Costa,

591 F.3d 1232, 1241–43 (9th Cir. 2010), overruled by Castro,

833 F.3d 1060. That standard provided that an officer was

liable for deliberate indifference only if he “kn[ew] of and

disregard[ed] an excessive risk to inmate health or safety” —

that is, if he was “aware of facts from which the inference

could be drawn that a substantial risk of serious harm exists”

and actually drew the inference. Simmons, 609 F.3d at 1017

(quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)).

“Deliberate indifference thus require[d] an objective risk of

harm and a subjective awareness of that harm.” Conn,

591 F.3d at 1095. (As we shall explain, that partially

subjective standard has since been revised to an entirely

objective standard for pretrial detainees. See Gordon v.

County of Orange, 888 F.3d 1118, 1125–26 (9th Cir. 2018);

Castro, 833 F.3d at 1068–71; infra pp. 16–18).

Two principles inform our clearly established law inquiry

in this case. First, the qualified immunity inquiry “must be

undertaken in light of the specific context of the case, not as

a broad general proposition.” Saucier, 533 U.S. at 201; see

also Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011) (“We have

HORTON V. CITY OF SANTA MARIA 13

repeatedly told courts . . . not to define clearly established law

at a high level of generality.”). It is therefore critical whether

our case law had, at the time of the events in this case,

sufficiently clarified when a detainee’s imminent risk of

suicide was substantial enough to require immediate

attention.

Second, in Estate of Ford v. Ramirez-Palmer, we

recognized that deliberate indifference claims “depend in part

on a subjective test that does not fit easily with the qualified

immunity inquiry,” which is an objective inquiry. 301 F.3d

1043, 1049 (9th Cir. 2002). Estate of Ford concluded that

even where the clearly established legal standard requires

deliberate indifference, the qualified immunity inquiry should

concentrate on the objective aspects of the constitutional

standard. That is because “a reasonable prison official

understanding that he cannot recklessly disregard a

substantial risk of serious harm, could know all of the facts

yet mistakenly, but reasonably, perceive that the exposure in

any given situation was not that high.” Id. at 1050. We held

that “[i]n these circumstances, [an officer] would be entitled

to qualified immunity” under the deliberate indifference

standard. Id.

Thus, Horton must show that, given the available case law

at the time of his attempted suicide, a reasonable officer,

knowing what Officer Brice knew, would have understood

that failing to check on Horton immediately after the phone

call with Yvonne presented such a substantial risk of harm to

Horton that the failure to act was unconstitutional. We turn to

the directly applicable case law now, which is sparse.

At the time of Horton’s incident, we had held that officers

who failed to provide medical assistance to a detainee should

14 HORTON V. CITY OF SANTA MARIA

have known that their conduct was unconstitutional in two

instances, neither of which resemble the facts in this case.

See Clouthier, 591 F.3d at 1244–45; Conn, 591 F.3d at 1098.

Clouthier held that a mental health specialist who failed

to take adequate precautions to protect a detainee from

committing suicide was not entitled to qualified immunity.

591 F.3d at 1245. The specialist knew that the detainee was

suicidal, that he had attempted suicide multiple times, and

that another staff member had placed the detainee in a suicide

smock and warned that he needed to be “constantly

monitored throughout the day to ensure his safety.” Id. at

1244. Nevertheless, the specialist removed the detainee from

regular suicide monitoring and instructed officers to return

his regular clothes and bedding, which he eventually used to

commit suicide. Id. at 1245. Under these facts, we

concluded that “a reasonable mental health professional could

not have thought it was lawful to remove key suicide

prevention measures put in place by a prior Mental Health

staff member.” Id.7

In Conn, we denied qualified immunity at the summary

judgment stage to officers who, while transporting a detainee,

observed her wrap a seatbelt around her neck in an apparent

attempt to choke herself and who threatened to commit

suicide. 591 F.3d at 1098. The transporting officers did not

take the detainee to a medical center or alert subsequent

7

Clouthier also held that a prison deputy’s knowledge of the

detainee’s past suicide attempts and present suicidal tendency was

“insufficient to allow a jury to conclude that [the deputy] knew Clouthier

was suicidal and deliberately ignored that risk.” 591 F.3d at 1247. Because

that holding was on the subjective knowledge prong of the deliberate

indifference standard, it is not directly relevant to Estate of Ford’s

objective reasonable official inquiry.

HORTON V. CITY OF SANTA MARIA 15

officers to the behavior; she then committed suicide. Id. We

concluded that “[w]hen a detainee attempts or threatens

suicide en route to jail, it is obvious that the transporting

officers must report the incident to those who will next be

responsible for her custody and safety.” Id. at 1102.8

The facts of Clouthier and Conn do not at all resemble

this case. Officer Brice’s interactions with Horton began with

his initial arrest, during which Horton remained cooperative.

Officer Brice also spoke with Horton’s girlfriend, who

informed him of Horton’s previous violent episodes, but did

not indicate any present suicidal intentions. At the jail,

Officer Brice asked Horton if he was having any medical

problems, to which Horton responded in the negative.

Officer Brice did know that Horton, according to his

mother, had been suicidal two weeks before the incident and

that his mother thought he remained a suicide risk.

Based on these facts, which are taken in the light most

favorable to Horton, a reasonable officer would not have

known that failing to attend to Horton immediately would be

unlawful under the law at the time of the incident. Horton did

not attempt suicide in the presence of Officer Brice, as the

detainee did in Conn. 591 F.3d at 1102. Nor, as was the case

in Clouthier, had he attempted suicide multiple times and

been deemed such a risk that medical specialists placed

8

While Conn did not cite expressly to Estate of Ford, it did cite to

Clouthier and did apply an objective test. See Conn, 591 F.3d at 1102

(“The relevant, dispositive inquiry in determining whether a right is

clearly established is whether it would be clear to a reasonable officer that

his conduct was unlawful in the situation he confronted.” (quoting

Saucier, 533 U.S. at 202)).

16 HORTON V. CITY OF SANTA MARIA

significant suicide prevention measures in place, measures

removed by the defendant. 591 F.3d at 1245. In short,

whether or not Officer Brice was in fact deliberately

indifferent to a substantial risk that Horton would attempt

suicide in the time before he was checked, there was no case

law at the time of the incident clearly establishing that a

reasonable officer should have perceived the substantial risk.9

In short, applying Estate of Ford, the case law at the time

of Horton’s attempted suicide was simply too sparse, and

involved circumstances too distinct from those in this case, to

establish that a reasonable officer would perceive a

substantial risk that Horton would imminently attempt

suicide. We therefore reverse the district court’s denial of

summary judgment on qualified immunity as to Officer Brice.

2. The Current Deliberate Indifference Standard

Since the incident in this case took place, this court has

announced a new liability standard governing Fourteenth

Amendment failure-to-protect claims by pretrial detainees.

Castro v. County of Los Angeles held that, in light of the

Supreme Court’s decision in Kingsley v. Hendrickson, 135 S.

Ct. 2466 (2015), Fourteenth Amendment failure-to-protect

9

Nor was there law at the time in other courts clearly establishing that

a reasonable officer would have known that failing to immediately check

up on Horton would have been unlawful. “In the absence of binding

precedent, we look to whatever decisional law is available to ascertain

whether the law is clearly established for qualified immunity purposes,

including decisions of state courts, other circuits, and district courts.”

Boyd v. Benton County, 374 F.3d 773, 781 (9th Cir. 2004) (citation and

internal quotation marks omitted). We have not found other cases applying

the objective qualified immunity inquiry prescribed by Estate of Ford to

facts similar to Horton’s case.

HORTON V. CITY OF SANTA MARIA 17

claims must be analyzed under a purely objective standard.

Castro, 833 F.3d at 1068–71. Under Castro, we ask whether

there was “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.” Id. at 1070. There is no

separate inquiry into an officer’s subjective state of mind.

We have recently recognized that Castro’s objective

deliberate indifference standard extends to Fourteenth

Amendment claims by pretrial detainees for violations of the

right to adequate medical care. See Gordon, 888 F.3d at

1125–26. This objective standard would therefore guide our

analysis of whether a constitutional violation occurred here,

were we to reach that question. But it has no direct bearing

on the question of whether Officer Brice would have known

that a failure to immediately check on Horton violated a

clearly established right at the time of the incident.

As the pre-Castro standard is no longer applicable, no

purpose would be served for future cases from delineating the

application of that standard to the constitutional merits of this

case. The two-step qualified immunity procedure “is

intended to further the development of constitutional

precedent,” and we may decide “whether that procedure is

worthwhile in particular cases.” Pearson, 555 U.S. at 237,

242. We therefore tend to address both prongs of qualified

immunity where the “‘two-step procedure promotes the

development of constitutional precedent’ in an area where

this court’s guidance is . . . needed.” Mattos v. Agarano, 661

F.3d 433, 440 (9th Cir. 2011) (en banc) (quoting Pearson,

555 U.S. at 236); see also Thompson v. Rahr, 885 F.3d 582,

590 (9th Cir. 2018) (determining that a constitutional

violation occurred before holding that the officer was entitled

18 HORTON V. CITY OF SANTA MARIA

to qualified immunity so that “[g]oing forward, . . . the law is

clearly established in this scenario”). Here, Castro and

Gordon have established the law going forward, and further

delineation of the pre-Castro standard would serve little

purpose, as it is no longer applicable. We therefore confine

our inquiry to the second qualified immunity prong —

whether the constitutional right at issue was “clearly

established” at the time of the alleged violation.

B. Section 1983 Claim Against Municipal Defendants

As to the denial of summary judgment in favor of the

municipal defendants on Horton’s § 1983 claims, we lack

jurisdiction over the municipal defendants’ appeal of that

order.

Monell established that municipalities can be liable for

infringement of constitutional rights, under certain

circumstances. 436 U.S. at 690–95. In particular,

municipalities may be liable under § 1983 for constitutional

injuries pursuant to (1) an official policy; (2) a pervasive

practice or custom; (3) a failure to train, supervise, or

discipline; or (4) a decision or act by a final policymaker. A

municipality may not, however, be sued under a respondeat

superior theory. Id. at 693–95. A plaintiff must therefore

show “deliberate action attributable to the municipality [that]

directly caused a deprivation of federal rights.” Bd. of Cty.

Comm’rs v. Brown, 520 U.S. 397, 415 (1997). “Where a

court fails to adhere to rigorous requirements of culpability

and causation, municipal liability collapses into respondeat

superior liability.” Id.

Although the requisites for municipal liability under

§ 1983 can be stringent, municipalities sued under § 1983,

HORTON V. CITY OF SANTA MARIA 19

unlike individuals, are not entitled to immunity, qualified or

otherwise, and so, unlike individuals, can never be immune

from trial.10 The denial of summary judgment to a municipal

defendant on a Monell claim is therefore no different from the

denial of any ordinary motion for summary judgment, and so

is not immediately appealable. See Collins v. Jordan,

110 F.3d 1363, 1366 n.1 (9th Cir. 1996); Henderson v.

Mohave County, 54 F.3d 592, 594 (9th Cir. 1995).

There is, however, one caveat to this rule. When a

municipal defendant’s motion for summary judgment is

“inextricably intertwined” with issues presented in the

individual officers’ qualified immunity appeal, this court may

exercise pendent party appellate jurisdiction. See Huskey v.

City of San Jose, 204 F.3d 893, 903–05 (9th Cir. 2000). In

this context, the “inextricably intertwined” concept is a

narrow one. “[A] pendent appellate claim can be regarded as

inextricably intertwined with a properly reviewable claim on

collateral appeal only if the pendent claim is coterminous

10

The collateral order doctrine allows for appeals from a narrow

category of interlocutory orders that do not fully resolve an action. See

Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545–47 (1949)

(holding that certain interlocutory decisions could be final for purposes of

28 U.S.C. § 1291). Denials of qualified immunity are among that

category. The qualified immunity defense shields government officials

from the costs and distractions of litigation and not just from liability. See

Mitchell, 472 U.S. at 526 (holding that the denial of qualified immunity

is immediately appealable, as officials enjoy “an entitlement not to stand

trial or face the other burdens of litigation, conditioned on the resolution

of the essentially legal question whether the conduct of which the plaintiff

complains violated clearly established law”). Therefore, even though

appellate review of a denial of qualified immunity would be possible after

a final judgment, immediate appeal is permitted to protect the right of

officials to be free from the burdens of litigation. Municipalities do not

enjoy any parallel right to be shielded from such burdens.

20 HORTON V. CITY OF SANTA MARIA

with, or subsumed in, the claim before the court on

interlocutory appeal — that is, when the appellate resolution

of the collateral appeal necessarily resolves the pendent claim

as well.” Id. at 905 (citation omitted). Here, appellate

resolution of the collateral appeal does not “necessarily”

resolve the pendent claim, for several reasons.

First, as we have explained, our qualified immunity

determination with respect to Officer Brice rests solely on the

“clearly established” law prong; we do not reach the question

of whether Officer Brice’s actions gave rise to a

constitutional violation. “[A] municipality may be liable if an

individual officer is exonerated on the basis of the defense of

qualified immunity, because even if an officer is entitled to

immunity a constitutional violation might still have

occurred.” Gibson v. County of Washoe, 290 F.3d 1175, 1186

n.7 (9th Cir. 2002), overruled on other grounds by Castro,

833 F.3d 1060. That is, the district court could still conclude

that Officer Brice did commit a constitutional violation under

the now-applicable standard and, if the other requisites of

Monell liability are met, hold the municipality liable.

Second, although the district court granted summary

judgment in favor of the individual defendants other than

Officer Brice on the ground that there was insufficient

evidence they committed a constitutional violation, the

district court could reconsider those summary judgments in

light of the new, purely objective standard for Fourteenth

Amendment failure-to-protect claims, which we announced

after the district court issued its order. See Castro, 833 F.3d

at 1068–70. Further, the district court’s grants of summary

judgment as to the individual officers other than Officer Brice

were not appealable, see 28 U.S.C. § 1291; Way v. County of

Ventura, 348 F.3d 808, 810 (9th Cir. 2003), and therefore

HORTON V. CITY OF SANTA MARIA 21

cannot be assumed to be correct. As a result, the district court

could conclude that municipal constitutional violations

occurred involving the actions of officers other than Officer

Brice.

Third, municipal defendants may be liable under § 1983

even in situations in which no individual officer is held liable

for violating a plaintiff’s constitutional rights. As we have

previously acknowledged, constitutional deprivations may

occur “not . . . as a result of actions of the individual officers,

but as a result of the collective inaction” of the municipal

defendant. Fairley v. Luman, 281 F.3d 913, 917 (9th Cir.

2002). “If a plaintiff establishes he suffered a constitutional

injury by the City, the fact that individual officers are

exonerated is immaterial to liability under § 1983,” regardless

of whether their exoneration is “on the basis of qualified

immunity, because they were merely negligent, or for other

failure of proof.” Id. at 917 & n.4.11 Here, a reasonable jury

11

Other circuits apply the same principle in Monell cases. See Barrett

v. Orange Cty. Human Rights Comm’n, 194 F.3d 341, 350 (2d Cir. 1999)

(“[M]unicipal liability for constitutional injuries may be found to exist

even in the absence of individual liability, at least so long as the injuries

complained of are not solely attributable to the actions of named

individual defendants.”); Fagan v. City of Vineland, 22 F.3d 1283, 1292

(3d Cir. 1994) (“[A]n underlying constitutional tort can still exist even if

no individual police officer violated the Constitution. . . . If it can be

shown that the plaintiff suffered [an] injury, which amounts to deprivation

of life or liberty, because the officer was following a city policy reflecting

the city policymakers’ deliberate indifference to constitutional rights, then

the City is directly liable under section 1983 for causing a violation of the

plaintiff’s Fourteenth Amendment rights.”); Anderson v. City of Atlanta,

778 F.2d 678, 686 (11th Cir. 1985) (“Monell . . . and its progeny do not

require that a jury must first find an individual defendant liable before

imposing liability on local government.”); Garcia v. Salt Lake County,

768 F.2d 303, 310 (10th Cir. 1985) (“Monell does not require that a jury

22 HORTON V. CITY OF SANTA MARIA

might be able to conclude that Horton suffered a

constitutional deprivation “as a result of the collective

inaction” of the Santa Maria Police Department, id. at 917, or

of officers’ adherence to departmental customs or practices,

see, e.g., Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1143

(9th Cir. 2012); Long v. County of Los Angeles, 442 F.3d

1178, 1185–86 (9th Cir. 2006).

For example, taking the facts in the light most favorable

to the plaintiff, a jury might find that the Santa Maria Police

Department failed to ensure compliance with its written

policy of removing belts from detainees. The department’s

policy manual indicated that arresting or booking officers

“should” remove jackets, belts, and shoes. But, according to

Officer Schneider, the “should” was understood to be

optional and, before December 29, 2012, when the incident

occurred, the usual practice was not to remove belts. An

independent audit of the Santa Maria Police Department,

conducted shortly before the incident for unrelated reasons,

confirmed that “many SMPD members had only a passing

knowledge of Department policies,” and that custody

practices were “loose.”

Second, a reasonable jury might find that the Police

Department failed to assure proper monitoring of its security

cameras. Officer Schneider twice told Horton that, if he

needed anything, he could simply wave at the security

cameras and an officer would come over. But no officer

apparently observed Horton looping his belt through the cell

door and hanging from it for over twenty minutes before

Officer Brice returned to his cell.

find an individual defendant liable before it can find a local governmental

body liable.”).

HORTON V. CITY OF SANTA MARIA 23

We do not decide whether any of these specific acts or

omissions, or any other, if proven, would give rise to a

municipal constitutional violation. Rather, our inquiry into

the Monell claims at this stage is purely jurisdictional. For

that purpose, we conclude that our holding that Officer Brice

is entitled to qualified immunity does not preclude the

possibility that a constitutional violation may nonetheless

have taken place, including as a result of the collective acts or

omissions of Santa Maria Police Department officers.

In sum, the pendent Monell claim is not inextricably

intertwined with a properly reviewable collateral appeal, as

our resolution of Officer Brice’s appeal from the denial of

summary judgment on qualified immunity does not

“necessarily” resolve Horton’s Monell claim. Huskey,

204 F.3d at 905. We therefore have no jurisdiction to review

the denial of summary judgment as to the municipal

defendants at this stage of the proceedings.

C. State Law Claim Against All Defendants

Finally, Officer Brice and the municipal defendants

contend they are entitled to immunity on Horton’s state law

claim. Under California law, prison officials generally cannot

be sued for failing to provide medical care to a prisoner,

unless the official knows, or reasonably should know, that the

prisoner requires immediate medical care. California

Government Code § 845.6 provides:

Neither a public entity nor a public employee

is liable for injury proximately caused by the

failure of the employee to furnish or obtain

medical care for a prisoner in his custody; but,

except as otherwise provided by Sections

24 HORTON V. CITY OF SANTA MARIA

855.8 and 856, a public employee, and the

public entity where the employee is acting

within the scope of his employment, is liable

if the employee knows or has reason to know

that the prisoner is in need of immediate

medical care and he fails to take reasonable

action to summon such medical care.

Cal. Gov’t Code § 845.6. Notably, under this statute, there is

no analogue to the second prong of federal qualified

immunity. Also, in contrast with Monell liability, California

law allows for vicarious liability of a municipality whose

employee violates the statute when acting within the scope of

employment. See Cal. Gov’t Code § 815.2.

The district court denied summary judgment to Officer

Brice and the municipal defendants on Horton’s § 845.6

claims, concluding that a reasonable jury could find that

Officer Brice had reason to know Horton faced a substantial

risk of attempting suicide and failed to take reasonable action

to summon immediate medical care.

One threshold matter: We have jurisdiction over the

denial of summary judgment as to the state law claims. For

state law immunity claims denied before trial, “the

availability of an appeal depends on whether, under state law,

the immunity functions as an immunity from suit or only as

a defense to liability.” Liberal v. Estrada, 632 F.3d 1064,

1074 (9th Cir. 2011). “A denial of summary judgment is

immediately appealable when the immunity is an immunity

from suit . . .” Id. Section 845.6 confers immunity from suit,

not only from liability, on public entities and public

employees for injuries caused by the failure to provide

HORTON V. CITY OF SANTA MARIA 25

medical care. Castaneda v. Dep’t of Corr. & Rehab.,

212 Cal. App. 4th 1051, 1070–71 (Ct. App. 2013).

Reviewing the denial of summary judgment on the state

law immunity issue de novo, see, e.g., Hansen v. Dep’t of

Treasury, 528 F.3d 597, 600 (9th Cir. 2007), and construing

the facts in the light most favorable to Horton, the nonmoving

party, see Holmes v. Cal. Army Nat’l Guard, 124 F.3d 1126,

1131–32 (9th Cir. 1997), we hold that there is a genuine issue

of material fact as to liability on the state law claims.

“In order to state a claim under § 845.6, a prisoner must

establish three elements: (1) the public employee knew or had

reason to know of the need (2) for immediate medical care,

and (3) failed to reasonably summon such care.” Jett v.

Penner, 439 F.3d 1091, 1099 (9th Cir. 2006).

Officer Brice and the municipal defendants offer several

arguments for their immunity under § 845.6. First, they

contend that Officer Brice’s alleged failure promptly to

summon medical care is tantamount to a failure to diagnose,

for which defendants are immune from liability under

California Government Code § 855.8(a). See Cal. Gov’t

Code § 845.6 (excepting from liability claims of injury

resulting from diagnosing or failing to diagnose mental

illness). We disagree. The scope of liability for the failure to

summon medical care under § 845.6 is broader than the scope

of immunity for the failure to diagnose, prescribe, or

administer treatment under § 855.8.12 See Johnson v. County

12

California Government Code § 855.8 provides:

(a) Neither a public entity nor a public employee acting

within the scope of his employment is liable for injury

26 HORTON V. CITY OF SANTA MARIA

of Los Angeles, 143 Cal. App. 3d 298, 316–17 (Ct. App.

1983); Nelson v. State, 139 Cal. App. 3d 72, 80–81 (Ct. App.

1982). The complaint alleges that the defendants subjected

Horton to “a delay in and/or denial of medical or mental

health care,” not (or at least, not only) that they failed to

diagnose or treat his mental illness — a responsibility

typically entrusted to a medical professional. See Johnson,

143 Cal. App. 3d at 316 (“We hold that as a matter of law a

sheriff does not have the authority to make the final

determination of diagnosing that a person is, or is not,

afflicted with mental illness . . . . [S]uch determinations are

properly made by physicians and other persons trained in the

healing arts.”).

Relatedly, the defendants argue that the exception to

§ 845.6’s broad immunity rule concerns the failure to

resulting from diagnosing or failing to diagnose that a

person is afflicted with mental illness or addiction or

from failing to prescribe for mental illness or addiction.

(b) A public employee acting within the scope of his

employment is not liable for administering with due

care the treatment prescribed for mental illness or

addiction.

(c) Nothing in this section exonerates a public

employee who has undertaken to prescribe for mental

illness or addiction from liability for injury proximately

caused by his negligence or by his wrongful act in so

prescribing.

(d) Nothing in this section exonerates a public

employee from liability for injury proximately caused

by his negligent or wrongful act or omission in

administering any treatment prescribed for mental

illness or addiction.

HORTON V. CITY OF SANTA MARIA 27

summon medical care, and Horton’s complaint centers on

Officer Brice’s own failure to return immediately to Horton’s

cell, rather than a failure to summon third-party medical care

upon finding Horton. But Horton’s complaint is not so

limited: It specifically alleges that defendants had reason to

know that “Horton was in need of immediate medical care”

and “failed to take reasonable action to summon such medical

care.” Officer Schneider’s statement that they should

“[p]robably do a psych,” indicates the kind of care that

Officer Brice could have been expected to summon once he

got off the phone with Yvonne.13 Had Officer Brice

requested a prompt psychiatric evaluation or otherwise

summoned psychiatric care, Horton could have been found

sooner and the period of anoxia he suffered shortened. We

cannot say, as a matter of law, that Officer Brice’s omissions

did not proximately cause injury to Horton. See Zeilman,

168 Cal. App. 3d at 1187.

Finally, defendants maintain that Officer Brice did not

know or have reason to know that Horton required immediate

medical care. As to this proposition, two California Court of

Appeal cases addressing § 845.6 claims premised on suicidal

ideation are instructive. In Lucas v. City of Long Beach,

60 Cal. App. 3d 341 (Ct. App. 1976), the decedent hung

himself in his cell after being arrested on charges of being

drunk and disorderly. Id. at 344–45. Reversing a jury verdict

in favor of the plaintiff, the Court of Appeal emphasized that

13

There is little doubt that ordering a psychiatric evaluation could

constitute “summoning medical care” under the California courts’ broad

view of “medical care.” See Zeilman v. County of Kern, 168 Cal. App. 3d

1174, 1187 (Ct. App. 1985) (indicating that having medical personnel

assist a pretrial detainee on crutches or providing a wheelchair would

constitute “summoning medical aid”).

28 HORTON V. CITY OF SANTA MARIA

there was “not a scintilla of evidence in the record indicating

that [the decedent’s] conduct was any different than one

might expect of a person intoxicated on either drugs or

alcohol.” Id. at 350.

By contrast, in Johnson v. County of Los Angeles, the

decedent had informed sheriffs “that he was attempting to

commit suicide and that ‘people’ were trying to torture and

kill him,” and the decedent’s wife had indicated that the

“Decedent was a paranoid schizophrenic, had been repeatedly

hospitalized, . . . required immediate medication . . . to

correct a chemical imbalance,” and “had suicidal tendencies.”

143 Cal. App. 3d at 304. The Court of Appeal reversed the

dismissal of the complaint alleging that the sheriffs breached

their statutory duty to summon medical care, and held that the

sheriffs’ “actual or constructive knowledge of Decedent’s

need for immediate care” and “reasonable action to summon

. . . such care” were “questions of fact to be determined at

trial.” Id. at 317.

This case falls between Lucas and Johnson as to the need

for mental health care. Officer Brice, unlike the sheriffs in

Johnson, was not specifically told by either Horton or his

mother that Horton “required immediate medication” or was

presently “attempting to commit suicide.” But there was

considerably more than “a scintilla of evidence” that Horton

required immediate medical attention: Officer Brice knew

from his conversation with Horton’s girlfriend that Horton

had chased his girlfriend with a knife, stabbed a friend in the

leg and sympathized with the suspects in mass homicides,

and, on the facts most favorable to Horton, had been told that

Horton was suicidal, had put cigarettes out on his face, had

recently been hospitalized after threatening to kill himself,

and would benefit from “access to mental health.” Moreover,

HORTON V. CITY OF SANTA MARIA 29

“[i]t is significant that in . . . Lucas . . . the court’s rejection

of claims pursuant to section 845.6 was based in large part

upon failure of proof at trial.” Zeilman, 168 Cal. App. 3d at

1186. A “trier of fact” should be permitted to determine

whether the information Officer Brice had “should have given

rise to knowledge of [the] need for immediate medical care.”

Id. at 1186–87.

As to immediacy, the defendants argue that Officer Brice

could not reasonably be expected to have known the urgency

of the situation. “Liability under section 845.6 is limited to

serious and obvious medical conditions requiring immediate

care.” Watson v. State, 21 Cal. App. 4th 836, 841 (Ct. App.

1993); see id. at 843. But that immediacy standard is, under

the applicable case law, relaxed.14 In Jett v. Penner, we held

that the need for “immediate medical care” under § 845.6

arises when a prisoner is instructed that he must see a doctor

“this week” to have a fractured thumb set and placed in a

cast. 439 F.3d at 1099. Jett thus makes clear that

“immediate” does not signify urgent; rather, the obligation to

summon immediate medical care requires that the public

employee act in a “timely” manner, so as to prevent further

injury. Id. at 1093.

In sum, on the facts construed in the light most favorable

to Horton, a reasonable jury could conclude that Officer Brice

had “reason to know” Horton had a “serious” medical

condition and required “immediate medical care” as that term

14

Castro v. County of Los Angeles involved the risk of serious harm

associated with placing a combative inmate in the same cell as another

detainee. 833 F.3d at 1064. Castro did not address the question of how

“immediate” the risk of serious harm — or specifically of suicide — must

be to sustain a deliberate indifference claim under that objective standard.

30 HORTON V. CITY OF SANTA MARIA

is interpreted under California law, and that he failed timely

to summon such care. The partial dissent disagrees with us

that the evidence revealed Horton’s risk of suicide was

immediate enough to require prompt medical attention.

Partial Dissent 42–44. But this disagreement is precisely the

type of question that should be left to a jury and not decided

on summary judgement. “[Q]uestions about jail personnel’s

actual or constructive knowledge of a prisoner’s need for

immediate medical care as well as the reasonableness of

actions taken to meet this need are factual questions . . .”

Zeilman, 168 Cal. App. 3d at 1184. In reviewing the denial of

summary judgment, “[t]his court does not weigh the evidence

or determine the truth of the matter, but only determines

whether there is a genuine issue for trial.” Balint v. Carson

City, 180 F.3d 1047, 1054 (9th Cir. 1999); see also Zeilman,

168 Cal. App. 3d at 1187 (“[D]ifficulty in proof does not

equate to resolution as a matter of law.”). Whether Officer

Brice had reason to know that Horton faced a need for

immediate mental health care and failed to summon it is a

“question[] of fact to be determined at trial” on which “we

need not . . . speculate.” Johnson, 143 Cal. App. 3d at 316.

Having so determined, we affirm the district court’s denial of

summary judgment in favor of Officer Brice and the

municipal defendants on the § 845.6 claim.

Conclusion

We conclude that Officer Brice is entitled to qualified

immunity as a matter of law and so reverse the district court’s

denial of summary judgment in favor of Officer Brice on the

§ 1983 claim. We next hold that we lack jurisdiction to

review the district court’s denial of summary judgment in

favor of the municipal defendants on the § 1983 claim. In

doing so, we caution that, “it is not enough for a § 1983

HORTON V. CITY OF SANTA MARIA 31

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.” Brown, 520 U.S.

at 404. In holding that municipal defendants may be liable in

a § 1983 action even absent a finding of liability on the part

of any individual officer — and that we therefore lack

jurisdiction to review the district court’s denial of summary

judgment in favor of the municipal defendants on Horton’s

§ 1983 claims — we express no views on whether the

municipal defendants here may properly be held liable.

Instead, we remand to permit the district court to consider the

remaining claims in light of this court’s recent guidance in

Castro and Gordon.

Finally, we affirm the district court’s denial of summary

judgment on the state law claim.

REVERSED in part, AFFIRMED in part, and

REMANDED.

BYBEE, Circuit Judge, dissenting in part:

This is a tragic case. Officer Brice’s phone call with

Horton’s mother likely left him with the impression that

Horton was a troubled young man experiencing a difficult

period in his life. The call could not have resulted in Officer

Brice preventing the suicide attempt, as it is undisputed that

Horton had already hanged himself and stopped moving by

the time the call ended. Maj. Op. 9 n.5. But had Officer

Brice checked on Horton immediately afterwards, his brain

damage could have been mitigated.

32 HORTON V. CITY OF SANTA MARIA

None of this means, however, that Officer Brice can be

held liable under the Fourteenth Amendment or California

law. I join the majority opinion in concluding that Officer

Brice is entitled to qualified immunity for Horton’s

deliberate-indifference claim under 42 U.S.C. § 1983.1 See

Maj. Op. § II.A. The evidence fails to establish that “a

reasonable officer would . . . have known that failing to attend

to Horton immediately would be unlawful.” See id. at 15.

The same reasoning dictates that we hold that Officer Brice

is entitled to state-law immunity under California

Government Code § 845.6. I would therefore also reverse the

district court as to this claim, and I respectfully dissent only

from this portion of the opinion. See Maj. Op. § II.C.

A deliberate-indifference claim under § 1983 is not

identical to a claim brought under § 845.6. The California

statute is unusual, as it “confers a broad general immunity”

on public entities and their employees, Watson v. State,

26 Cal. Rptr. 2d 262, 265 (Cal. Ct. App. 1993), yet

simultaneously imposes an affirmative duty on them that can

give rise to liability under narrow circumstances, Johnson v.

County of Los Angeles, 191 Cal. Rptr. 704, 717 (Cal. Ct. App.

1983); Nelson v. State, 188 Cal. Rptr. 479, 483 (Cal. Ct. App.

1982). Specifically, the statute’s first clause confers

immunity from suit “for injury proximately caused by the

failure of the employee to furnish or obtain medical care for

a prisoner in his custody . . . .” Cal. Gov’t Code § 845.6

(emphasis added); see also Castaneda v. Dep’t of Corr. &

Rehab., 151 Cal. Rptr. 3d 648, 663 (Cal. Ct. App. 2013). The

second clause is the exception to this rule, exposing a public

1

I also join the opinion’s subsequent section concluding that we lack

jurisdiction to review the denial of summary judgment as to Horton’s

Monell claim. See Maj. Op. § II.B.

HORTON V. CITY OF SANTA MARIA 33

employee to suit only when he “knows or has reason to know

that the prisoner is in need of immediate medical care and he

fails to take reasonable action to summon such medical care.”

Cal. Gov’t Code § 845.6 (emphasis added). “Thus, section

845.6 creates out of the general immunity a limited cause of

action against a public entity for its employees’ failure to

summon immediate medical care only. The statute does not

create liability of the public entity for malpractice in

furnishing or obtaining that medical care.” Castaneda,

151 Cal. Rptr. 3d at 663 (first emphasis added) (citations

omitted).

To state a claim under § 845.6, a plaintiff must satisfy

three elements. See id. First, he must establish that whatever

action he contends that the defendant should have taken—the

statute is after all explicitly premised only on a failure to

act—constitutes summoning medical care. See Cal. Gov’t

Code § 845.6. Next, there is the knowledge component: the

plaintiff must prove that the defendant knew or should have

known that the plaintiff was in need of this medical care and

that the need was immediate. Id. Finally, the plaintiff must

establish that the defendant failed to act reasonably to meet

the medical need. Id.

Horton cannot satisfy either of the first two elements. He

has thus failed, as a matter of law, to establish that Officer

Brice may be subjected to suit under state law. I address each

element in turn.

I

Section 845.6 creates liability only for the failure to

summon medical care rather than for all omissions by a

public employee that cause injury to a person in his custody.

34 HORTON V. CITY OF SANTA MARIA

Consider, for instance, a Sheriff’s deputy who is tasked with

assembling a new bunk bed in a cell at a county jail and does

so negligently by failing to read the instructions and not using

all provided parts. If the bed later collapses and consequently

breaks its occupant’s leg, § 845.6 would not expose the

deputy to liability for that injury. The deputy might be liable

under some other law, but not for violating § 845.6.

Conversely, if a different deputy on duty witnessed the

accident and took no action despite the prisoner’s complaints

of pain to his leg, this second deputy would likely be liable;

he would not be immune from suit for any additional injury

caused by the delay in summoning medical care to treat the

leg. See, e.g., Jett v. Penner, 439 F.3d 1091, 1099 (9th Cir.

2006).

A claim premised on suicidal ideation creates a

particularly difficult question as to what types of omissions

would constitute a failure to summon medical care. Even if

an officer had knowledge that there was an imminent risk that

the prisoner would make an attempt on his own life, it would

be difficult to say that a failure to remove that prisoner’s

bedsheets and shoelaces would fall within this statute’s ambit

because it is not natural to describe the removal of such items

as summoning medical care. The failure to remove them

might violate some other provision of California law, but the

omission is not an obvious violation of § 845.6.

Here, our analysis is complicated by the fact that Horton’s

complaint consists of a single conclusory allegation regarding

what omissions purportedly violated § 845.6: “Defendants

. . . knew, or had reason to know, that Shane Horton was in

need of immediate medical care, supervision and

safeguarding and that he was suicidal and at risk of injuring

himself, but failed to take reasonable action to summon such

HORTON V. CITY OF SANTA MARIA 35

medical care . . . .” Horton adds little clarity on appeal,

merely highlighting the fact that he was “already slumped on

the floor motionless when Officer Brice finished” the call as

evidence that he “was in immediate need of medical

attention.” But the fact that Horton needed to be resuscitated

once he had already hanged himself says nothing about what

actions Officer Brice should have taken before he returned to

Horton’s cell and discovered the suicide attempt.2 In other

words, Horton’s argument is circular; he implies that, because

he was in need of medical care once he had hanged himself,

any omission by Officer Brice constituted a failure to

summon medical care.

Ultimately, it is evident that Horton’s state-law claim, like

his § 1983 claim, is premised on his contention that “the

information communicated by . . . Horton’s mother should

have prompted [Officer Brice] to check on Horton promptly

and discover the need for immediate medical care.” As

addressed below, I do not believe Horton has provided any

evidence that Officer Brice knew or should have known that

Horton was in immediate danger of harming himself. But

even assuming that this knowledge component is satisfied,

the majority opinion does not address how Officer Brice’s

failure to check on Horton immediately after the phone call

constitutes a failure to summon medical care. The majority

has not explained why this statute even applies in this case.3

2

Horton has never alleged—nor does the record show—that Officer

Brice delayed in summoning emergency care after he discovered that

Horton had hanged himself. Rather, Officer Brice personally administered

CPR until paramedics arrived.

3

Section 845.6 grants immunity to an officer who fails to “furnish or

obtain medical care” but limits an officer’s liability to a failure “to

summon such medical care” when the officer has actual or constructive

36 HORTON V. CITY OF SANTA MARIA

The California Court of Appeal emphasized this precise

deficiency in Lucas v. City of Long Beach, where the

decedent hanged himself in his cell after being arrested on a

charge of being drunk and disorderly:

Plaintiff, [the decedent’s mother] . . . , offered

no evidence as to what kind of medical care

she claims should have been provided and

more importantly she offered no evidence as

to how such medical care could have

prevented the death. [The decedent] was not

in fact in need of immediate medical care and

clearly lack of medical care did not “cause”

the death.

True the continuous presence in the cell of a

doctor, a nurse, or, for that matter, a

policeman probably would have prevented the

suicide. The jury apparently reasoned along

these lines. Government Code section 845.6,

knowledge of its immediate need. Cal. Gov’t Code § 845.6 (emphasis

added). Therefore, this statute does not create an affirmative duty for an

officer to personally furnish medical care. Castaneda, 151 Cal. Rptr. 3d

at 666 (“Were we to conclude the duty under section 845.6 includes

furnishing, monitoring, followup, or subsequent care for the same

condition, . . . we would be expanding the liability of the public entity

beyond that contemplated by the Legislature.”). Accordingly, if an inmate

accidently severs his hand in the prison’s machine shop, a supervising

guard will undoubtedly be liable under § 845.6 for not radioing in for

immediate medical aid. The guard would, however, be immune from suit

if the inmate alleged only that the guard should have personally

administered a makeshift tourniquet. This distinction demonstrates why

California courts have concluded that the statute “is very narrowly

written,” id. at 663, and further highlights that Horton’s claim is not

premised on a failure to summon care.

HORTON V. CITY OF SANTA MARIA 37

however, in affixing liability for failure to

summon “immediate medical care” for a

person in need thereof envisions liability for

injury resulting from the failure to treat the

physical condition requiring treatment and not

for some other incidental injury that might

have been prevented by the mere presence of

medical personnel. The jury’s findings that it

was negligence not to provide medical

treatment and that that failure was the “cause”

of death are not supported by any evidence to

be found in the record.

131 Cal. Rptr. 470, 475 (Cal. Ct. App. 1976) (emphasis

added). Lucas thus demonstrates that, as discussed above, not

all forms of omission give rise to liability under § 845.6.

Although Officer Brice’s presence in Horton’s cell

immediately after the call may have prevented Horton from

suffering the degree of brain damage that he did, any failure

to check on Horton sooner falls outside the statute’s narrow

exception to immunity.

Rather than confronting this dispositive flaw in Horton’s

state-law claim,4 the majority summarily asserts that the

claim is “not . . . limited” to “Officer Brice’s own failure to

return immediately to Horton’s cell . . . .” Maj. Op. 27.

Tellingly, the majority supports this conclusion by citing only

to Horton’s complaint, which, as seen above, does not allege

4

The majority fails to address the above-quoted reasoning in Lucas

regarding the medical-care element under § 845.6. Instead, the majority

addresses Lucas only in the context of the statute’s knowledge

element—i.e., whether Officer Brice should have known that Horton

posed an immediate suicide risk. Maj. Op. 27–29.

38 HORTON V. CITY OF SANTA MARIA

a single specific action that Officer Brice failed to take. See

id. This is unsurprising. Nothing in Horton’s briefing or the

record indicates that his claim, as to Officer Brice, is

premised on anything other than the officer not immediately

checking on him.

Undeterred, the majority supplements Horton’s claim for

him, concluding that Officer Brice could have ordered a

psychiatric evaluation for Horton—as Officer Schneider

suggested earlier that day.5 Id. I have two objections. First,

Horton has never contended that such an evaluation is the

type of medical care that Officer Brice should have

summoned after the call with his mother. It is improper for

the majority to deny Officer Brice state-law immunity based

on an argument that it manufactured. See Greenwood v. FAA,

28 F.3d 971, 977 (9th Cir. 1994).

But second, even if properly before us, this new argument

does not cure this claim. The majority’s assertion that Officer

Brice should have ordered a psychiatric evaluation is a

circuitous attempt to argue that the officer or third-party

medical personnel failed to furnish medical care and, in the

process, could have more quickly discovered the suicide

attempt. California cases have repeatedly rejected such

claims. See, e.g., Lucas, 131 Cal. Rptr. at 475 (“[S]ection

845.6 . . . , in affixing liability for failure to summon

‘immediate medical care’ for a person in need thereof

envisions liability for injury resulting from the failure to treat

5

Officer Schneider referenced “[p]robably do[ing] a psych or

something” to Horton after the two had a half-an-hour conversation.

Officer Brice was not at the police station at the time, and the record does

not show that Schneider later conveyed this suggestion or the

conversation’s content to Brice.

HORTON V. CITY OF SANTA MARIA 39

the physical condition requiring treatment and not for some

other incidental injury that might have been prevented by the

mere presence of medical personnel.”); see also Castaneda,

151 Cal. Rptr. 3d at 663–64 (discussing “[t]he distinction

between failure to summon medical care—for which the State

can be held liable under section 845.6—on the one hand, and

negligence in providing care—for which the State is

immune—on the other hand”); id. at 664 n.10, 666 (repeating

the point); Nelson, 188 Cal. Rptr. at 485 (“Failure of a

practitioner to prescribe or provide necessary medication or

treatment . . . is . . . medical malpractice . . . [but] cannot be

characterized as a failure to summon medical care.”).

Moreover, the medical care that the majority insists upon

would not have addressed Horton’s medical needs—he had

already hanged himself by the time that the call ended. There

is also no evidence that ordering a psychiatric evaluation

would have resulted in Officer Brice more quickly checking

on Horton. Officer Brice could have ordered an

evaluation—a paperwork or telephone request—without

checking on Horton. It is likely that doing so would have

required the officer to spend additional time on administrative

tasks outside of Horton’s presence, only further delaying his

return to the cell. Accordingly, Horton has failed to show

that any purported omission by Officer Brice falls within the

scope of § 845.6 liability.

By disregarding the statute’s medical-care element, the

majority opinion undermines California’s intent to immunize

its employees and to allow suit only when an employee has

actual or constructive knowledge of an immediate medical

need. The opinion has converted § 845.6 into a general

negligence provision, ignoring “[t]he limited nature of the

40 HORTON V. CITY OF SANTA MARIA

duty to summon under section 845.6.” Castaneda, 151 Cal.

Rptr. 3d at 666.

II

Even if Horton could establish that any omission

constituted a failure to summon medical care, he has

separately failed to provide evidence that Officer Brice knew

or should have known that there was an immediate danger

that he would harm himself. In concluding that Horton has

raised a triable issue, the opinion cites to Zeilman v. County

of Kern for the proposition that “jail personnel’s actual or

constructive knowledge of a prisoner’s need for immediate

medical care as well as the reasonableness of actions taken to

meet this need are factual questions . . . .” 214 Cal. Rptr. 746,

753 (Cal. Ct. App. 1985); Maj. Op. 30. But even Zeilman

recognized that summary judgment on § 845.6 claims can be

appropriate in some circumstances, 214 Cal. Rptr. at 754, and

its facts are distinguishable from this case.

In Zeilman, the plaintiff was being booked at the county

jail following her arrest and was relying on crutches due to a

ski accident. Id. at 747–48. After the booking process was

complete, a deputy directed the plaintiff to sit down at a

nearby chair, but she fell when her crutches slipped out from

under her. Id. at 748–49, 754. In opposing summary

judgment on her § 845.6 claim, she presented a declaration

from her attorney “stating that he arrived at the jail during the

booking procedure and could observe his client being booked,

in an ‘aggitated [sic], emotional and weakened condition

which was easily apparent to him and any other person in his

vicinity.’” Id. at 748 (emphasis added). The Court of Appeal

reversed the trial court’s grant of summary judgment,

reasoning that a jury had to determine whether this evidence

HORTON V. CITY OF SANTA MARIA 41

and the plaintiff’s use of crutches “should have given rise to

knowledge of her need for immediate medical care.” Id. at

754.

In reaching this conclusion, Zeilman distinguished these

facts from Lucas, the detainee-suicide case discussed above.

Id. at 753–55. In Lucas, the plaintiff not only failed to

establish that the officer’s purported omission constituted

medical care, but she also failed to provide evidence that the

officer should have known that there was an immediate

suicide risk. Lucas, 131 Cal. Rptr. at 475. Indeed the

decedent was merely drunk and visibly upset about “the

effect that his arrest would have on his mother . . . .” Id.

(“[T]here is not a scintilla of evidence in the record indicating

that his conduct was any different than one might expect of

a person intoxicated on either drugs or alcohol.”).

The Zeilman court also addressed Kinney v. County of

Contra Costa, where the detainee merely asked the officer if

she could be given something for “a very bad headache” and

was denied. 87 Cal. Rptr. 638, 644 (Cal. Ct. App. 1970).

Although the plaintiff claimed she was “ready to collapse” by

the time she was released from the police station, the Court of

Appeal held that a request for aspirin “cannot reasonably be

deemed notice ‘that the prisoner is in need of immediate

medical care.’” Id.

In distinguishing Lucas and Kinney, Zeilman emphasized

that both earlier cases had proceeded to a jury but that the

plaintiffs had failed to produce sufficient evidence at trial.6

6

In Lucas, a jury rendered a verdict in the plaintiff’s favor, but the

Court of Appeal reversed on a sufficiency-of-the-evidence claim. 131 Cal.

Rptr. at 474. The trial court in Kinney issued a judgment of nonsuit at the

42 HORTON V. CITY OF SANTA MARIA

214 Cal. Rptr. at 754. The majority in our case highlights this

point without acknowledging that the Zeilman court

nonetheless concluded that summary judgment might have

been proper in both Lucas and Kinney. Id. Accordingly,

Zeilman does not stand for the proposition that a § 845.6

claim per se precludes summary judgment. Such relief would

have certainly been warranted in Lucas, where the plaintiff

failed to provide evidence supporting the medical-care and

knowledge elements. In contrast, the plaintiff in Zeilman

came forward with at least some evidence that the deputy

should have known she was in need of immediate assistance7

in the form of her lawyer’s attestation that her weakened

condition was visibly and readily apparent.

This brings me to the evidence in this case. Horton’s

mother testified during her deposition that she told Officer

Brice “‘everything’ about the December 13, 2012

incident—Horton’s use of drugs, the cigarette marks on his

face and hands, the knife he held to his throat, his

hospitalization with an initial ‘5150’ hold for risk of suicide,

the CARES official’s conclusion that he could be discharged

because his conduct was due to drugs not suicidal ideation,

and [Mrs. Horton’s] disagreement with that conclusion.”

Maj. Op. 8. She “testified that she also told Officer Brice that

her son was depressed and suicidal, that she was really

close of the plaintiff’s case in chief, which the Court of Appeal affirmed.

87 Cal. Rptr. at 644.

7

I question whether failing to help the plaintiff in Zeilman to her chair

constitutes a failure to summon medical care. Although the Zeilman court

quoted the relevant medical-care language from Lucas, it did not address

that element in distinguishing the two cases, which appears not to have

been in dispute.

HORTON V. CITY OF SANTA MARIA 43

worried about him, and that she believed he could be helped

in the judicial system.” Id.

This testimony admittedly distinguishes our case from

Lucas, where there was no evidence whatsoever that the

detainee suffered from suicidal ideation. But even when the

evidence here is taken in the light most favorable to Horton,

I would hold that no reasonable jury could find that Officer

Brice should have known that there was an immediate risk

that Horton would harm himself and that the officer therefore

needed to take immediate action. A person can suffer from

depression and suicidal thoughts for years without ever

harming himself. Indeed, the incident that Horton’s mother

described to Officer Brice occurred two weeks prior to the

arrest, and she provided no evidence that Horton had made

any attempts or threats on his life in the intervening period.

Seeking “help[] in the judicial system” is not close to a call

for immediate assistance for someone who recently exhibited

suicidal ideation.

This is not a case where Horton’s parents had imposed an

informal 24/7 suicide watch on him. His father had kicked

him out of the house after the glass-breaking incident, so it

appears Horton was living independently, without supervision

for the two weeks preceding his arrest. Moreover, his mother

did not rush down to the police station once she heard that her

son had been arrested; rather, she had just told Horton that

she would not bail him out. Horton’s mother was certainly

concerned about his well-being, but she never claims to have

expressed to Officer Brice that Horton would likely make an

attempt on his life if the officer did not take immediate action

to ensure Horton was unable to do so—e.g., by removing his

belt, moving him to a secured, padded cell, and monitoring

him constantly. It would certainly have been prudent of

44 HORTON V. CITY OF SANTA MARIA

Officer Brice to pass along the information Horton’s mother

claims to have given him to the officials at the county jail

once Horton was transferred, but that falls far short of failing

to recognize Horton’s immediate need for medical care.

Moreover, Horton’s mother testified that she spoke to

Officer Brice for ten to fifteen minutes—a substantial amount

of time. Had she thought her son was in immediate danger of

harming himself, she would have told Officer Brice to drop

the phone and rush to Horton’s cell. Indeed, if anything, the

officer’s patient call with Horton’s mother would have

reinforced that Horton needed a psychiatric

evaluation—which was likely obtainable at the county jail

rather than at the police station where Horton was being

temporarily held.

The majority does not address this absence of evidence.

Nor does it attempt to reconcile its conclusion that Officer

Brice, for the purpose of the state-law claim, should have

known that Horton posed an immediate suicide risk with our

holding regarding his § 1983 claim: “Based on these facts,

. . . a reasonable officer would not have known that failing to

attend to Horton immediately would be unlawful.” Maj. Op.

15.

The majority instead summarily cites Jett for the

proposition that the “immediacy standard” under § 845.6 is

more “relaxed” than under § 1983 deliberate-indifference

claims.8 Maj. Op. 29. But this conclusion misconstrues Jett.

8

Horton does not cite Jett. Nor does he contend that a claim

premised on suicidal ideation entails a lesser showing of immediacy of

harm under § 845.6 than under the deliberate-indifference standard.

HORTON V. CITY OF SANTA MARIA 45

There, the emergency-room doctor instructed the prisoner-

plaintiff to follow-up with an orthopedic doctor “early this

week” after he fractured his thumb. Jett, 439 F.3d at 1094.

The plaintiff saw a prison doctor three days later, but his hand

was too swollen to be placed in a permanent cast. Id.

Despite reports of pain and numerous requests to visit an

orthopedist, it took an additional two months for the plaintiff

to be seen even by another prison doctor. Id. After four

additional months, the plaintiff finally visited an orthopedic

specialist, “who determined [the plaintiff] should be referred

to a hand specialist because the fracture had healed

improperly.” Id. at 1095. The evidence demonstrated that

the delay in seeing an orthopedist prevented the fracture from

correctly aligning. Id. at 1098.

We reversed the district court’s grant of summary

judgment on the plaintiff’s deliberate-indifference claims,

concluding that there was evidence that several prison

officials knew of but ignored the plaintiff’s need to set his

fracture. Id. In regard to his § 845.6 claim, we held that there

was “a triable issue of fact . . . as to whether [the plaintiff]

received immediate medical care for his diagnosed fractured

thumb because the fracture was not set and placed in a cast.”

Id. at 1099. We reasoned that “the need for ‘immediate

medical care’ can arise more than once in relation to an

ongoing serious medical condition” and that this need “arose

as soon as [the plaintiff’s] swelling subsided and his fracture

could be reduced and a cast applied.” Id. (emphasis added).

Accordingly, Jett provides no insight into how immediate

a medical need must be under § 845.6. The plaintiff’s

Again, it is improper for the majority to raise arguments that Horton has

failed to advance.

46 HORTON V. CITY OF SANTA MARIA

medical condition was ongoing and his need for care

resurfaced as soon as his reduced swelling made the original

prescribed treatment possible.9 Thus, the key point in Jett

regarding both § 845.6 and deliberate indifference is that

there was evidence that prison officials had actual knowledge

that the plaintiff had a time-sensitive medical need and took

no action for many months. The case does not support the

majority’s conclusion.

In my view, Horton’s claim fails because he has not

provided evidence that Officer Brice should have known that

Horton posed such a degree of suicide risk that the officer

should have immediately rushed to his cell instead of

spending twelve to seventeen minutes arranging to transfer

Horton and another detainee to county jail.

III

I sympathize deeply with Horton and his mother, but there

is no basis under California law for subjecting Officer Brice

9

The California Court of Appeal has criticized our conclusion in Jett,

reasoning that the duty to summon medical care does not extend to

ensuring that proper follow-up treatment—i.e., setting the fracture—is

eventually provided. Castaneda, 151 Cal. Rptr. 3d at 666 (“[T]he Ninth

Circuit’s application of section 845.6 ignores California authority

interpreting that statute. California courts hold the failure to prescribe

necessary medication or, once summoned to provide treatment, to ensure

proper diagnosis, or to monitor the progress of an inmate that the public

employee has been summoned to assist, are issues relating to the manner

in which medical care is provided, and do not subject the State to liability

under section 845.6 for failure to summon.”). The majority opinion

creates additional tension between Jett and Castaneda because Jett is

inapposite and should not have been cited. See Scalia v. County of Kern,

308 F. Supp. 3d 1064, 1087 (E.D. Cal. 2018) (declining to follow Jett’s

interpretation of § 845.6 in light of Castenada).

HORTON V. CITY OF SANTA MARIA 47

to suit. Considered in the light most favorable to Horton, the

events earlier that day and the phone call with his mother did

not imbue Officer Brice with the actual or constructive

knowledge that Horton would attempt suicide at any moment.

And although it may have been prudent for Officer Brice to

immediately check on Horton, his decision not to do so is not

a failure to summon medical care. For these two independent

reasons, I would reverse the district court’s denial of

summary judgment to Officer Brice on Horton’s § 845.6

claim.

I respectfully dissent as to this claim.