Ana Sandoval v. County of San Diego

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANA SANDOVAL, individually and as No. 18-55289

successor in interest to Ronnie

Sandoval, Jr.; RONNIE SANDOVAL, D.C. No.

JR.; JOSIAH SANDOVAL, 3:16-cv-01004-

Plaintiffs-Appellants, BEN-AGS

v.

OPINION

COUNTY OF SAN DIEGO; ROMEO DE

GUZMAN; MARIA LLAMADO; DANA

HARRIS,

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of California

Roger T. Benitez, District Judge, Presiding

Argued and Submitted October 16, 2019

Submission Vacated March 16, 2020

Resubmitted January 6, 2021

Pasadena, California

Filed January 13, 2021

2 SANDOVAL V. COUNTY OF SAN DIEGO

Before: Kim McLane Wardlaw and Daniel P. Collins,

Circuit Judges, and Joseph F. Bataillon, * District Judge.

Opinion by Judge Wardlaw;

Partial Concurrence and Partial Dissent by Judge Collins

SUMMARY **

Civil Rights

The panel ordered the appeal resubmitted, reversed the

district court’s summary judgment and remanded in an

action brought pursuant to 42 U.S.C. § 1983 against the

County of San Diego and three nurses alleging that

defendants violated Ronnie Sandoval’s Fourteenth

Amendment right to adequate medical care while he was in

custody at the San Diego Central Jail.

Sandoval died of a methamphetamine overdose at the

San Diego Central Jail after medical staff left him

unmonitored for eight hours, despite signs that he was under

the influence of drugs, and then failed to promptly summon

paramedics when they discovered him unresponsive and

having a seizure.

Concluding that the district court abused its discretion by

summarily sustaining the defendants’ meritless—indeed

*

The Honorable Joseph F. Bataillon, United States District Judge

for the District of Nebraska, sitting by designation.

**

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

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

SANDOVAL V. COUNTY OF SAN DIEGO 3

frivolous—evidentiary objections, the panel considered the

objected-to evidence. Turning to the merits, the panel first

noted that after the district court issued its decision, this

court clarified in Gordon v. County of Orange, 888 F.3d

1118, 1124–25 (9th Cir. 2018), that an objective standard

applies to constitutional claims of inadequate medical care

brought by pretrial detainees. In light of Gordon, the district

court erred by applying the subjective deliberate indifference

standard to plaintiff’s Fourteenth Amendment claim.

Because the parties had briefed Gordon’s objective

framework on appeal, the panel applied it here.

Applying the Gordon framework and viewing the

evidence in plaintiff’s favor, the panel held that a jury could

conclude that Sandoval would not have died but for the

defendants’ unreasonable response to his obvious signs of

medical distress. Specifically, a jury could conclude that a

reasonable nurse who was told that Sandoval was shaking,

tired, and disoriented—and who was specifically directed by

a deputy to evaluate Sandoval more thoroughly—would

have understood that Sandoval faced a substantial risk of

suffering serious harm. Defendant Nurse Romeo de

Guzman therefore was not entitled to summary judgment on

liability. The panel reached the same conclusion for the

claims against Nurses Dana Harris and Maria Llamado,

concluding that their failure to promptly call paramedics was

objectively unreasonable.

The panel further held that plaintiff had demonstrated

that the available law was clearly established at the time as

to the unreasonableness of the nurses’ conduct. The panel

concluded that a reasonable nurse, knowing what Llamado,

Harris, and de Guzman knew, would have understood that

failing to call paramedics (Llamdo and Harris), or failing to

check on Sandoval for hours and failing to pass on

4 SANDOVAL V. COUNTY OF SAN DIEGO

information about his condition (de Guzman), presented

such a substantial risk of harm to Sandoval that the failure to

act was unconstitutional. Accordingly, the nurses were not

entitled to qualified immunity.

The panel held that viewing the evidence in the light

most favorable to plaintiff, there was a triable issue of fact

as to the County’s liability under Monell v. Department of

Social Services, 436 U.S. 658, 694 (1978).

Concurring in the judgment in part and dissenting in part,

Judge Collins agreed with the majority’s ultimate conclusion

that Nurses Harris and Llamado were not entitled to

summary judgment, but he would affirm the district court’s

grant of summary judgment to Nurse de Guzman and to the

County of San Diego. Judge Collins wrote that because in

2014, the then controlling deliberate-indifference liability

standards included a subjective element, plaintiff had to

make a showing of subjective deliberate indifference to

defeat qualified immunity, and she had to do so even though

that subjective element of the test for liability has since been

overruled. Because plaintiff failed to present sufficient

evidence to show that Nurse de Guzman was subjectively

aware of Sandoval’s serious medical needs, de Guzman was

entitled to qualified immunity. Judge Collins further stated

that there was no evidence that the County had an

unconstitutional policy, practice or custom. Finally, as to

Nurses Harris and Llamdo, the sharply conflicting evidence

indicated that they subjectively knew that the paramedics

needed to be called. Because Judge Collins’s reasoning

differed from the majority’s even with respect to Harris and

Llamado, he concurred only in the judgment in part, and

otherwise respectfully dissented.

SANDOVAL V. COUNTY OF SAN DIEGO 5

COUNSEL

Christopher S. Morris (argued), Morris Law Firm APC, San

Diego, California, for Plaintiffs-Appellants.

Fernando Kish (argued) and James M. Chapin, Senior

Deputies; Thomas E. Montgomery, County Counsel; Office

of County Counsel, San Diego, California; for Defendants-

Appellees.

OPINION

WARDLAW, Circuit Judge:

Ronnie Sandoval died of a methamphetamine overdose

at the San Diego Central Jail after medical staff left him

unmonitored for eight hours, despite signs that he was under

the influence of drugs, and then failed to promptly summon

paramedics when they discovered him unresponsive and

having a seizure. Sandoval’s wife and successor-in-interest,

Ana Sandoval (Plaintiff), brought suit under 42 U.S.C.

§ 1983 against the County of San Diego and Nurses Romeo

de Guzman, Dana Harris, and Maria Llamado, alleging that

they violated Sandoval’s Fourteenth Amendment right to

adequate medical care in custody.

The district court granted summary judgment to the

defendants, concluding that there were no triable issues of

fact as to their liability and that the individual nurses were

entitled to qualified immunity. After the district court issued

its decision, we clarified that an objective standard applies

to constitutional claims of inadequate medical care brought

by pretrial detainees. Gordon v. County of Orange, 888 F.3d

1118, 1124–25 (9th Cir. 2018). Applying that standard here,

we reverse because genuine disputes of material fact

6 SANDOVAL V. COUNTY OF SAN DIEGO

preclude the award of summary judgment, and we remand

for further proceedings.

I.

Many of the facts underlying this case are in dispute. We

recount them in the light most favorable to Plaintiff, as the

non-moving party in the district court. Tuuamalemalo v.

Greene, 946 F.3d 471, 474 (9th Cir. 2019) (per curiam).

A.

On February 22, 2014, deputies from the San Diego

Sheriff’s Department went to Ronnie Sandoval’s residence

to conduct a probation compliance check. After the deputies

found a gram of methamphetamine and drug paraphernalia,

they placed Sandoval under arrest and took him to the San

Diego Central Jail. Unbeknownst to the arresting deputies,

Sandoval had swallowed an additional amount of

methamphetamine—later estimated to be several hundred

times the typical recreational dose—in an effort to prevent

its discovery.

At the jail, Deputy Matthew Chavez noticed that

Sandoval was sweating and appeared disoriented and

lethargic. When asked about these symptoms, Sandoval told

Chavez that he might be diabetic. A nurse tested Sandoval’s

blood sugar level, which came back normal, and Sandoval

was placed in a holding cell.

Approximately one hour later, Sandoval was removed

from the cell to have his booking photograph taken. Deputy

Chavez observed that Sandoval “was still sweating a lot and

appeared to be very tired and disoriented.” Chavez asked

Sandoval if he was ok. Sandoval responded that he was very

cold, which Chavez found odd because Sandoval was

SANDOVAL V. COUNTY OF SAN DIEGO 7

sweating. Another deputy asked Sandoval if he had

swallowed anything, and Sandoval became agitated and

refused to answer further questions.

Deputy Chavez took Sandoval to the second-floor

medical station for an assessment. There he encountered

Nurse Romeo de Guzman. Chavez told de Guzman that

while Sandoval had been cleared by the medical staff

downstairs, he was sweating and appeared disoriented and

lethargic. According to Chavez, he specifically told de

Guzman, “there [is] still something going on [with

Sandoval], so you need to look at him more thoroughly.”1

De Guzman told Chavez to put Sandoval in Medical

Observation Cell No. 1 (MOC1).

Shortly thereafter, around 5:00 p.m., de Guzman entered

MOC1 to attend to Sandoval. Leonard Rodriguez, a deputy

who accompanied de Guzman into the cell, noticed that

Sandoval was “shaking mildly” and “appeared to be having

withdrawals from drugs.” De Guzman gave Sandoval a

second, and “very quick,” blood sugar test, which came back

normal and then left the cell without conducting any further

examination.

From there, accounts diverge. Nurse de Guzman claims

that he told deputies that Sandoval was “cleared for booking

process.” But according to Deputy Rodriguez’s written,

contemporaneous police report, de Guzman instead asked

whether Sandoval could be moved to a “sobering tank.” The

deputies conferred and determined that it would be better if

1

Nurse De Guzman contends that he was told only to check

Sandoval’s blood sugar level, but on summary judgment, we must accept

Deputy Chavez’s version of events.

8 SANDOVAL V. COUNTY OF SAN DIEGO

Sandoval remained in MOC1, presumably so that he would

be subject to closer observation by the medical staff.

All agree that Sandoval was not transferred and instead

remained in MOC1. And it is undisputed that even though

MOC1 was only 20 feet from the nursing station, Nurse de

Guzman did not check on Sandoval at any point during the

remaining six hours of his shift. When the next shift of

nurses arrived at 11:00 p.m., de Guzman did not tell them

anything about Sandoval either. When asked why he never

checked on Sandoval, de Guzman responded simply, “I

don’t have to.”

The failure to monitor Sandoval may have resulted in

part from the “mixed use” nature of MOC1. While MOC1

was sometimes used to hold inmates requiring medical care,

it was used at other times as an ordinary holding cell. Unlike

other cells used for inmates with medical issues, no nurses

were specifically assigned to monitor individuals being held

in MOC1. Instead, nurses would attend to MOC1 only if

told that an individual who was placed there needed care.

This sometimes caused confusion. For example, Nurse

de Guzman claims that he did not check on Sandoval

because he believed that MOC1 was used exclusively as an

ordinary holding cell and that Sandoval was being held there

for correctional, rather than medical, purposes. In contrast,

the deputies believed that by leaving Sandoval in MOC1,

they would ensure that he would be monitored by the

medical staff.

Whatever the cause, Sandoval remained almost entirely

unmonitored for nearly eight hours until Sergeant Robert

Shawcroft walked past MOC1 at 12:55 a.m. and noticed that

Sandoval’s eyes “weren’t tracking” and that his skin tone

SANDOVAL V. COUNTY OF SAN DIEGO 9

“wasn’t a fleshy color.” 2 As Shawcroft watched, Sandoval

slumped over and his eyes rolled back in his head.

Shawcroft turned away to call for help, and when he turned

back, he saw Sandoval hit his head on the wall and slide

down to the floor.

Sergeant Shawcroft entered Sandoval’s cell and was

soon joined by Deputies Nolan Edge and Matthew Andrade,

and Nurses Dana Harris and Maria Llamado. Sergeant

Shawcroft, Deputy Andrade, Deputy Edge, and Nurse

Llamado all agree that Sandoval was unresponsive and

having a seizure or “seizure-like activity.” In contrast, Nurse

Harris contends that Sandoval was responsive, followed

verbal commands, and was not seizing.

Whether Sandoval was unresponsive and seizing bears

on an important distinction in this case between emergency

medical technicians (EMTs) and paramedics. While the

terms are sometimes used interchangeably, paramedics

receive more advanced training than EMTs. EMTs can

provide only basic life support (BLS) procedures, such as

performing CPR and providing a patient with an oxygen

mask. In contrast, paramedics are trained to perform

advanced cardiovascular life support (ACLS) procedures,

including establishing IVs, administering medications,

reading heart rhythms, and inserting breathing tubes.

Critically, when a patient is unresponsive, paramedics are

required. In San Diego at least, EMTs will not transport

unresponsive patients.

2

Other than one deputy who briefly checked on Sandoval around

7:30 p.m., it appears that nobody entered MOC1 between around

5:00 p.m., when Nurse de Guzman performed the blood test, and 12:55

a.m., when Sergeant Shawcroft observed Sandoval in medical distress.

10 SANDOVAL V. COUNTY OF SAN DIEGO

Because Nurse Harris was the first nurse to arrive on the

scene, she became the “team leader” with primary

responsibility for directing Sandoval’s treatment. The

evidence shows that even though Harris was told several

times to call paramedics because Sandoval was

unresponsive, she refused to do so.

Deputy Andrade, who happened to be a trained EMT,

asked two or three times for paramedics to be called. Harris

did not do so. Nurse Llamado says that she directly told

Harris, “He has to go out 9-1-1,” meaning that paramedics

were needed. Harris responded, “No, EMT.” Llamado then

telephoned the charge nurse, Shirley Bautista, who also said

that paramedics should be summoned. Llamado put the

phone down and told Harris, “Shirley said he has to go now

9-1-1.” Despite all of this, Harris still refused to call

paramedics. 3

It is undisputed that EMTs were initially summoned

instead of paramedics. When the EMTs arrived around

1:20 a.m., they informed the nurses and deputies that “they

would not be able to transport Sandoval in the current

condition he was in.” Paramedics were then called and

arrived at 1:42 a.m.—47 minutes after Sandoval was first

observed to be unresponsive and seizing. According to

Deputy Andrade, Sandoval still had a pulse when the

paramedics arrived. But he lost his pulse when he was

transferred to a gurney. Resuscitation efforts failed, and

Sandoval was pronounced dead at 2:11 a.m.

3

Harris denies that Deputy Andrade and Nurse Llamado told her to

call paramedics, and contends that she did not believe paramedics were

necessary because, in her view, Sandoval was responsive,

communicative, and breathing on his own. On summary judgment, we

must accept Andrade and Llamado’s very different version of events.

SANDOVAL V. COUNTY OF SAN DIEGO 11

During discovery, it was revealed that Nurse Harris did

not know on the night of the incident that only paramedics,

and not EMTs, could provide the ACLS treatment that

Sandoval required—even though this was common

knowledge among nurses. Nurse Llamado later admitted

that she should have called paramedics herself when Harris

refused to do so, and that she had “learned [her] lesson.”

B.

Sandoval’s wife, Ana Sandoval, filed this suit in

California state court against Nurses de Guzman, Harris, and

Llamado, and the County of San Diego. The complaint

alleged that the individual nurses had violated the Fourteenth

Amendment by failing to provide Sandoval adequate

medical care, and that the County was likewise liable

because its policy of using MOC1 as a mixed used cell,

without proper communication protocols, created the

confusion among the medical staff that led to Sandoval’s

death. The complaint also asserted several state law claims. 4

The defendants removed the case to federal court and

later moved for summary judgment. For reasons discussed

in more depth below, the district court granted summary

judgment to the defendants on the constitutional claims

brought under 42 U.S.C. § 1983 and declined to exercise

supplemental jurisdiction over the state law claims. Plaintiff

timely appealed.

4

Sandoval’s children Ronnie Sandoval Jr. and Josiah Sandoval were

named as additional plaintiffs on some of the state law claims, but not on

the constitutional claims under § 1983.

12 SANDOVAL V. COUNTY OF SAN DIEGO

II.

We have jurisdiction under 28 U.S.C. § 1291. We

review the district court’s grant of summary judgment de

novo. “Summary judgment is appropriate when, with the

evidence viewed in the light most favorable to the non-

moving party, there are no genuine issues of material fact, so

that the moving party is entitled to judgment as a matter of

law.” Wilk v. Neven, 956 F.3d 1143, 1147 (9th Cir. 2020)

(citation omitted); Fed. R. Civ. P. 56(a). “Evidentiary

rulings made in the context of summary judgment motions

are reviewed for abuse of discretion . . . .” Bias v. Moynihan,

508 F.3d 1212, 1224 (9th Cir. 2007).

III.

Before discussing the merits, we address a significant

evidentiary ruling by the district court. During briefing on

the motion for summary judgment, the nurses and the

County submitted boilerplate one-word objections for

“relevance,” “hearsay,” and “foundation” to several pieces

of evidence important to Plaintiff’s case, including the report

of Plaintiff’s medical expert, the police reports of deputies at

the scene, and the San Diego County Sheriff’s Medical

Services’ standardized nursing procedures for treating

seizures. The district court sustained all of these objections

in a one-sentence ruling that read in full: “Defendants’

evidentiary objections, to which Plaintiffs did not respond,

are sustained.” This decision, which had the effect of

striking crucial evidence from the summary judgment

record, was an abuse of discretion.

The defendants’ failure to explain their one-word

objections, and the district court’s failure to explain its

ruling, makes it difficult to know precisely why the court

concluded that the evidence was inadmissible. But on the

SANDOVAL V. COUNTY OF SAN DIEGO 13

record before us, it appears the objections were meritless, if

not downright frivolous.

To begin, objections for relevance are generally

unnecessary on summary judgment because they are

“duplicative of the summary judgment standard itself.”

Burch v. Regents of Univ. of Cal., 433 F. Supp. 2d 1110,

1119 (E.D. Cal. 2006) (Shubb, J.). On summary judgment,

a court must determine whether the evidence viewed in the

light most favorable to the non-moving party creates a

“genuine dispute as to any material fact” that must be

resolved at trial. Fed. R. Civ. P. 56(a). And under Federal

Rule of Evidence 401, evidence is relevant if it “has any

tendency to make a fact more or less probable” and that fact

“is of consequence in determining the action.” Fed. R. Evid.

401. Putting these two standards together, if evidence

submitted on summary judgment could create a genuine

dispute of material fact, it is, by definition, “of consequence

in determining the action,” and therefore relevant. Id.

Conversely, if the submitted evidence does not create a

genuine dispute of material fact, there is no need for the court

to separately determine whether it is relevant because, even

assuming it is not, it will not affect the ultimate summary

judgment ruling. We therefore agree with Judge Shubb’s

cogent observation that parties briefing summary judgment

motions would be better served to “simply argue” the import

of the facts reflected in the evidence rather than expending

time and resources compiling laundry lists of relevance

objections. Burch, 433 F. Supp. 2d at 1119.

In any event, the relevance objections here plainly lacked

merit. For example, the objected-to police reports provide

the deputies’ first-hand observations of Sandoval’s

condition, and the objected-to report of Plaintiff’s medical

expert is essential to her ability to show that Sandoval would

14 SANDOVAL V. COUNTY OF SAN DIEGO

not have died if not for the defendants’ failure to provide

adequate care. This evidence goes to the central issues in the

case and is therefore more than sufficient to clear the low bar

of relevance. 5 See Fed. R. Evid. 401.

We reach the same conclusion with regard to the hearsay

objections. Because the defendants did not explain these

objections, we are largely reduced to guessing at the

arguments underlying them. One possibility is that the

defendants objected on the ground that the documents

themselves would not be admissible at trial because they are

out-of-court statements offered for their truth. See Fed. R.

Evid. 801(c), 802. But “[a]t the summary judgment stage,

we do not focus on the admissibility of the evidence’s form.

We instead focus on the admissibility of its contents.”

Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003); see

Fed. R. Civ. P. 56(c)(2). If the contents of a document can

be presented in a form that would be admissible at trial—for

example, through live testimony by the author of the

document—the mere fact that the document itself might be

excludable hearsay provides no basis for refusing to consider

it on summary judgment. Fraser, 342 F.3d at 1036–37

(holding that the plaintiff’s diary could be considered on

5

The defendants provided an explanation for only one of their

several objections, but in a twist of irony, that explanation makes clear

that the objection lacked merit. The defendants objected to the Sheriff’s

Department Medical Services Standardized Nursing Procedure on

Seizure Disorder on the ground that “Nurse Harris determined that

[Sandoval] was not having a seizure.” But whether Nurse Harris knew

Sandoval was having a seizure is a hotly disputed issue in this case. It

goes without saying that a district court evaluating an objection on

summary judgment cannot simply accept the moving party’s version of

disputed facts when determining which evidence is relevant.

SANDOVAL V. COUNTY OF SAN DIEGO 15

summary judgment because she could testify consistent with

its contents at trial).

Here, the objected-to documents either reflect the

personal knowledge of individuals who could be called to

testify at trial or will likely be admissible at trial under

exceptions to the hearsay rule. For example, Plaintiff’s

expert witnesses can testify about the opinions expressed in

their expert reports, and the deputies and medical examiner

can testify about the personal observations reflected in their

official reports. See id. To the extent the police reports

recount statements made by the defendants in this case, they

would be admissible as non-hearsay statements of a party

opponent. See Fed. R. Evid. 801(d)(2). Hearsay therefore

provided no basis for excluding the objected-to documents

in their entirety. And to the extent the defendants intended

to object to only parts of the documents, their unexplained

generalized objections were insufficient to raise such an

objection. See Fed. R. Evid. 103(a)(1)(B); United States v.

Holland, 880 F.2d 1091, 1095 (9th Cir. 1989) (“Holland’s

blanket objection to the admission of the tape does not

preserve an objection to failure to redact the tape.”).

As for the foundation objections, “an objection to

admission of evidence on foundational grounds must give

the basis for objection in a timely way to permit the

possibility of cure.” Jerden v. Amstutz, 430 F.3d 1231, 1237

(9th Cir. 2005); accord 21 Charles Alan Wright & Arthur R.

Miller, Federal Practice and Procedure § 5036.7 (2d ed. 2020

update). The defendants’ one-word objections for

“foundation” fell well short of providing Plaintiff with notice

of the specific ground of objection and, consequently, what

could be done to cure any defects. Accordingly, these

objections also provided no basis for excluding the evidence.

16 SANDOVAL V. COUNTY OF SAN DIEGO

In an attempt to justify the district court’s evidentiary

ruling, the defendants point to a local rule of the District

Court for the Southern District of California that provides

that the failure to file timely opposition papers “may

constitute a consent to the granting of a motion or other

request for ruling by the court.” See S.D. Cal. Local Rule

7.1.f.3.c. It is not clear that this rule applies to a failure to

file a written response to evidentiary objections. 6 But in any

event, the district court did not mention this rule or any other

in sustaining the defendants’ objections, and we will not

simply assume that it formed the basis for the evidentiary

ruling. 7

Because we conclude that the district court abused its

discretion by summarily sustaining the defendants’

meritless—indeed frivolous—evidentiary objections, we

will consider that evidence.

6

Southern District of California Local Rule 7.1.f.3.c provides that

when a party “fails to file [opposition] papers in a manner required by

Civil Local Rule 7.1.e.2,” the court may grant the opposing party’s

request. S.D. Cal. Local Rule 7.1.f.3.c. The referenced rule—Rule

7.1.e.2, which sets the time for filing an opposition—applies only to

“motion[s], application[s], or order[s] to show cause.” S.D. Cal. Local

Rule 7.1.e.2. It is not clear that evidentiary objections submitted in

conjunction with a reply brief in support of a motion for summary

judgment constitute a “motion” or “application” within the meaning of

the rule. Other provisions of Local Rule 7.1 are ambiguous on this point.

7

We therefore have no occasion to address whether applying this

local rule rigidly would amount to an abuse of discretion where, as here,

it would effectively prevent a plaintiff from satisfying her burden on

summary judgment. See Ghazali v. Moran, 46 F.3d 52, 53–54 (9th Cir.

1995) (per curiam) (explaining the factors a district court must consider

when applying a local rule would result in the dismissal of a case).

SANDOVAL V. COUNTY OF SAN DIEGO 17

IV.

Turning to the merits, we begin with a brief history of

constitutional claims based on inadequate medical care,

which, for reasons that will become apparent, provides

important context for understanding the issues presented by

this case.

A.

Individuals in state custody have a constitutional right to

adequate medical treatment. See Estelle v. Gamble, 429 U.S.

97, 104–05 (1976). For inmates serving custodial sentences

following a criminal conviction, that right is part of the

Eighth Amendment’s guarantee against cruel and unusual

punishment. Id. However, pretrial detainees have not yet

been convicted of a crime and therefore are not subject to

punishment by the state. Accordingly, their rights arise

under the Fourteenth Amendment’s Due Process Clause.

Bell v. Wolfish, 441 U.S. 520, 535–36, 335 n.16 (1979).

Claims brought by convicted prisoners under the Eighth

Amendment are governed by what we have called a

“subjective deliberate indifference” standard. Gordon,

888 F.3d at 1122; see Edmo v. Corizon, Inc., 935 F.3d 757,

786 (9th Cir. 2019) (per curiam), cert. denied sub nom. ID

DOC, ET AL. v. Edmo, No. 19-1280, 2020 WL 6037411

(U.S. Oct. 13, 2020). Under this standard, a prison official

will be liable for disregarding an inmate’s serious medical

needs only if he was both “aware of facts from which the

inference could be drawn that a substantial risk of serious

harm exists” and actually “dr[e]w the inference.” Peralta v.

Dillard, 744 F.3d 1076, 1086 (9th Cir. 2014) (en banc)

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

Thus, a prison official who “should have been aware” of a

medically related risk to an inmate, but in fact was not, “has

18 SANDOVAL V. COUNTY OF SAN DIEGO

not violated the Eighth Amendment, no matter how severe

the risk.” Id. (quoting Gibson v. Cnty. of Washoe, 290 F.3d

1175, 1188 (9th Cir. 2002)).

Because pretrial detainees “retain at least those

constitutional rights that we have held are enjoyed by

convicted prisoners,” Bell, 441 U.S. at 545, we have

sometimes looked to the Eighth Amendment as a starting

point for determining the rights of pretrial detainees under

the Fourteenth Amendment. Carnell v. Grimm, 74 F.3d 977,

979 (9th Cir. 1996) (“[T]he [E]ighth [A]mendment

guarantees provide a minimum standard of care for

determining a prisoner’s rights as a pretrial detainee,

including the prisoner’s rights to medical care.” (emphasis

removed and cleaned up)). And in the context of claims of

inadequate medical care, we had previously concluded that

the Eighth Amendment and Fourteenth Amendment

standards were precisely the same. See, e.g., Simmons v.

Navajo Cnty., 609 F.3d 1011, 1017 (9th Cir. 2010). That is,

to succeed on a claim of inadequate medical care, both

convicted prisoners and pretrial detainees were required to

establish subjective deliberate indifference on the part of the

defendant. Id.

The Supreme Court’s decision in Kingsley v.

Hendrickson, 576 U.S. 389 (2015), however, cast doubt on

our practice of evaluating Eighth Amendment and

Fourteenth Amendment claims under the same standard.

Kingsley involved claims that jail officials had used

excessive force against a pretrial detainee. Id. at 391. When

such claims are brought by convicted prisoners under the

Eighth Amendment, liability turns on “whether force was

applied in a good faith effort to maintain or restore

discipline.” Whitley v. Albers, 475 U.S. 312, 320 (1986)

(citation omitted); see also Hoard v. Hartman, 904 F.3d 780,

SANDOVAL V. COUNTY OF SAN DIEGO 19

787–88 (9th Cir. 2018). The question presented in Kingsley

was whether the Eighth Amendment subjective good faith

standard also applies to Fourteenth Amendment excessive

force claims brought by pretrial detainees. 576 U.S. at 391–

92.

The Court held that the Eighth Amendment and

Fourteenth Amendment standards were not the same. Id.

at 400 (“The language of the two Clauses differs, and the

nature of the claims often differs.”). It concluded that for

Fourteenth Amendment claims, the relevant question is not

whether the defendant acted in good faith, but instead

whether the force used was “objectively unreasonable.” Id.

at 396–97.

Recognizing that Kingsley called into question our

practice of applying Eighth Amendment standards to other

varieties of Fourteenth Amendment claims brought by

pretrial detainees, we addressed the issue en banc in Castro

v. County of Los Angeles, 833 F.3d 1060 (9th Cir. 2016). In

Castro, a pretrial detainee alleged that prison officials had

failed to protect him from violence at the hands of another

inmate placed in his cell. Id. at 1064. We were mindful that

when such failure-to-protect claims are brought by convicted

prisoners under the Eighth Amendment, they are governed

by a subjective deliberate indifference standard similar to the

one that applies to claims of inadequate medical care. Id.

at 1067–68.

However, in Castro, we concluded that while we had

previously also applied the Eighth Amendment failure-to-

protect standard to similar Fourteenth Amendment claims

brought by pretrial detainees, we could no longer do so after

Kingsley. Id. at 1069–70. We held instead that Fourteenth

Amendment failure-to-protect claims should be analyzed

under an objective framework, under which the critical

20 SANDOVAL V. COUNTY OF SAN DIEGO

question is whether the defendant failed to take reasonable

measures to abate a serious risk of harm to an inmate “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.” Id.

at 1071.

This was the state of the law at the time the district court

ruled on the summary judgment motion here. Citing Castro,

Plaintiff argued in the district court that an objective

standard should apply to her Fourteenth Amendment claim

that the defendants failed to provide Sandoval with adequate

medical care. But the district court concluded that Castro,

which had specifically addressed only failure-to-protect

claims, had not overruled Ninth Circuit precedent applying

the Eighth Amendment subjective deliberate indifference

standard to inadequate medical care claims brought by

pretrial detainees. Accordingly, the district court applied

that subjective standard to Plaintiff’s claims and granted

summary judgment in favor of the defendants.

After the district court’s ruling, however, we issued our

opinion in Gordon, which made clear that Castro and

Kingsley had in fact displaced our prior precedent for claims

brought by pretrial detainees alleging inadequate medical

care. Gordon, 888 F.3d at 1124–25. In Gordon, we adopted

an objective framework for such claims that mirrored the

framework Castro had adopted for failure-to-protect claims.

Id. Under that standard, pretrial detainees alleging that jail

officials failed to provide constitutionally adequate medical

care must show:

(1) The defendant made an intentional

decision with respect to the conditions

under which the plaintiff was confined

SANDOVAL V. COUNTY OF SAN DIEGO 21

[including a decision with respect to

medical treatment];

(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 official in the

circumstances would have appreciated

the high degree of risk involved—making

the consequences of the defendant’s

conduct obvious; and

(4) By not taking such measures, the

defendant caused the plaintiff’s injuries.

Id. at 1125. To satisfy the third element, the plaintiff must

show that the defendant’s actions were “objectively

unreasonable,” which requires a showing of “more than

negligence but less than subjective intent—something akin

to reckless disregard.” Id. (quoting Castro, 833 F.3d

at 1071).

In light of our holding in Gordon, it is clear that the

district court here erred by applying the subjective deliberate

indifference standard to Plaintiff’s Fourteenth Amendment

claim. Because the parties have briefed Gordon’s objective

framework on appeal, we apply it here.

B.

Beginning with Nurse de Guzman, the evidence viewed

in the light most favorable to Plaintiff shows that Deputy

Chavez told de Guzman that Sandoval was sweating, tired,

and disoriented. Deputy Chavez insisted that he told de

22 SANDOVAL V. COUNTY OF SAN DIEGO

Guzman, “There [is] still something going on [with

Sandoval] so you need to look at him more thoroughly.”

Despite receiving this information, de Guzman did nothing

more than administer a duplicative blood sugar test—a test

de Guzman admitted took only about ten seconds. Without

conducting any further evaluation, de Guzman then told

deputies that Sandoval was cleared for booking.

When the deputies left Sandoval in MOC1, de Guzman

asked them if Sandoval could “go into a sobering tank.” A

jury could conclude, based on this statement, that de

Guzman suspected Sandoval was under the influence of

drugs or alcohol. Yet although de Guzman knew that

Sandoval remained in MOC1, which was only 20 feet away

from the nursing station, he failed to check on Sandoval at

any point during the remaining six hours of his shift. Worse

still, when his shift was over, de Guzman did not relay any

information about Sandoval to the nurses who replaced him.

This left the night shift nurses with no way of knowing that

Sandoval was being held in MOC1 for medical reasons.

Applying the Gordon framework, a jury could conclude

that a reasonable nurse who was told that Sandoval was

shaking, tired, and disoriented—and who was specifically

directed by a deputy to evaluate Sandoval “more

thoroughly”—would have understood that Sandoval faced a

“substantial risk of suffering serious harm.” Gordon,

888 F.3d at 1125. Sweating and being so disoriented that

officers observe and comment about it are not everyday

conditions. A jury could further conclude that de Guzman’s

actions toward Sandoval—which were limited to

administering a quick blood test and then ignoring Sandoval

for the remaining six hours of his shift—were “akin to

reckless disregard.” Id. De Guzman is therefore not entitled

to summary judgment on liability.

SANDOVAL V. COUNTY OF SAN DIEGO 23

C.

We reach the same conclusion for the claims against

Nurses Harris and Llamado.

There can be no debate that a reasonable nurse would

understand that an individual who is unresponsive and

seizing faces a substantial risk of suffering serious harm.

Thus, the question with regard to Nurses Harris and Llamado

is whether a jury could find that their failure to promptly call

paramedics was objectively unreasonable.

On summary judgment, we must accept the extensive

evidence that all reasonable nurses would know that only

paramedics, not EMTs, had the training necessary to allow

them to transport patients in Sandoval’s condition. This is

reflected in the Sheriff’s Department Medical Services

Division Policy and Procedure Manual, which lists “status

epilepticus”—i.e. a severe seizure—as a condition that

“require[s] 911 Paramedic Emergency Response.” And it is

echoed by Deputy Andrade (a trained EMT) and Nurse

Llamado, who testified that they told Nurse Harris during the

incident that paramedics were needed because EMTs could

not transport unresponsive patients. Indeed, Llamado later

admitted that she should have called paramedics herself

when Harris refused to do so. This evidence is more than

sufficient to allow a jury to find that Llamado and Harris’s

failure to summon paramedics was objectively

unreasonable. See Gordon, 888 F.3d at 1125.

Arguing that they are entitled to summary judgment,

Nurses Harris and Llamado point to cases in which we have

held that “a difference of medical opinion regarding . . .

treatment” does not amount to a constitutional violation. See

Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); see also

Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004).

24 SANDOVAL V. COUNTY OF SAN DIEGO

These cases applied the Eighth Amendment subjective

deliberate indifference standard and therefore are of limited

relevance to the Fourteenth Amendment claims here. But

even under the Eighth Amendment standard, a defendant can

be held liable for actions that were “medically unacceptable

under the circumstances.” Toguchi, 391 F.3d at 1058

(internal quotation marks and citation omitted). Here, there

is ample evidence from which a jury could conclude that

promptly calling paramedics was the only medically

acceptable option. 8

Finally, to the extent Nurses Harris and Llamado argue

that Sandoval would not have survived even if they had

promptly summoned paramedics, Plaintiff’s expert, Dr.

Michael Falgiani, opined that it was more likely than not that

Sandoval’s life could have been saved if he “had been taken

to an emergency department at any time during the time he

was in Central Jail up to the time that he lost pulses and went

into cardiac arrest.” And according to Deputy Andrade,

Sandoval still had a pulse when the paramedics first arrived.

Crediting Dr. Falgiani’s opinion, and taking Deputy

Andrade’s account as true, a jury could find that Sandoval

would not have died but for the delay in calling paramedics.

In sum, viewing the evidence in the light most favorable

to Plaintiff, there are triable issues of fact on the claims

against each of the individual nurses. Accordingly, the

nurses are not entitled to summary judgment on liability.

8

Nurse Harris’s arguments to the contrary rest in large part on her

assertions that Sandoval “did not have any of the symptoms commonly

associated with seizures” and that she “could not have anticipated” that

EMTs would not transport Sandoval. Both of these propositions are

contradicted by evidence in the record. They therefore serve only to

support our view that summary judgment was inappropriate.

SANDOVAL V. COUNTY OF SAN DIEGO 25

V.

We now turn to whether the nurses are entitled to

qualified immunity.

“Qualified immunity balances two important interests—

the need to hold public officials accountable when they

exercise power irresponsibly and the need to shield officials

from harassment, distraction, and liability when they

perform their duties reasonably.” Pearson v. Callahan,

555 U.S. 223, 231 (2009). In determining whether a state

official is entitled to qualified immunity in the context of

summary judgment, we consider (1) whether the evidence

viewed in the light most favorable to the plaintiff is sufficient

to show a violation of a constitutional right and (2) whether

that right was “clearly established at the time of the

violation.” Horton by Horton v. City of Santa Maria,

915 F.3d 592, 599 (9th Cir. 2019) (citing Pearson, 555 U.S.

at 232).

A.

We begin with whether the shift in the legal framework

governing Plaintiff’s claims—from subjective deliberate

indifference to objective unreasonableness—has any bearing

on the qualified immunity analysis. The nurses argue, and

the dissent agrees, that in determining whether the nurses are

entitled to qualified immunity, we must apply all elements

of an inadequate medical care claim exactly as they stood at

the time of the incident at issue here, including the subjective

deliberate indifference requirement. But we have already

rejected this approach in Horton by Horton v. City of Santa

Maria. 915 F.3d at 599–603. Under Horton, when we

assess qualified immunity for a claim of inadequate medical

care of a pre-trial detainee arising out of an incident that took

place prior to Gordon, we apply the current objective

26 SANDOVAL V. COUNTY OF SAN DIEGO

deliberate indifference standard to analyze whether there

was a constitutional violation, id. at 602, and “concentrate

on the objective aspects of the [pre-Gordon] constitutional

standard” to evaluate whether the law was clearly

established, id. at 600.

To fully understand Horton, we must first address Estate

of Ford v. Ramirez-Palmer, 301 F.3d 1043 (9th Cir. 2002).

Jeffrey Ford was killed by his cellmate, James Diesso, who

had a history of violent behavior against other prisoners. Id.

at 1045–47. Ford’s family and estate brought an Eighth

Amendment deliberate indifference claim against the

correctional officers who allowed Diesso to be housed with

Ford. Id. at 1047–48. The district court concluded that

genuine issues of material fact existed as to whether the

officers were aware of Diesso’s history of violence. Id. at

1048. Because our circuit had “held in Hamilton v. Endell,

981 F.2d 1062 (9th Cir.1992), that a finding of deliberate

indifference (or of a triable issue as to it) necessarily

precludes a finding of qualified immunity,” id. at 1045, the

district court denied qualified immunity, id. at 1048. On

appeal, the Ford panel reversed, concluding “that Hamilton,

which collapse[d] the deliberate indifference part of the

constitutional inquiry into the qualified immunity inquiry,

ha[d] been undermined by Saucier [v. Katz, 533 U.S. 194

(2001), overruled on other grounds by Pearson, 555 U.S.

223],” id. at 1050, because the “key point” in Saucier “is that

the qualified immunity inquiry is separate from the

constitutional inquiry,” id. at 1049.

We further explained that “the qualified immunity

inquiry ‘has a further dimension.’” Id. (quoting Saucier,

533 U.S. at 205). That dimension is the clearly established

law inquiry, which allows “‘all but the plainly incompetent

or those who knowingly violate the law’ [to] have immunity

SANDOVAL V. COUNTY OF SAN DIEGO 27

from suit.” Id. (quoting Saucier, 533 U.S. at 202). However,

we noted that “[w]hile Eighth Amendment claims depend in

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

qualified immunity inquiry, there is an objective component

as well. To violate the Eighth Amendment, the deprivation

alleged must objectively be sufficiently serious.” Id. If the

law at the time of an alleged violation did not clearly

establish that the specific situation faced by an officer was

sufficiently serious, “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. Thus,

the “dispositive inquiry” in the clearly-established analysis

is “whether it would be clear to a reasonable officer that his

conduct was unlawful in the situation he confronted,” based

on the law at the time. Id. (quoting Saucier, 533 U.S. at 202)

(emphasis added).

Turning to the Estate of Ford facts, we concluded that “if

any of the officers knew that Diesso was acting out

dangerously with cellmates or that he was a threat to Ford

but housed Ford with him anyway, this would violate the

Eighth Amendment.” Id. Nonetheless, the officers were

entitled to qualified immunity, because no law at the time of

the incident “fleshed out ‘at what point a risk of inmate

assault becomes sufficiently substantial for Eighth

Amendment purposes.’” Id. at 1051 (quoting Farmer,

511 U.S. at 834 n.3). Therefore, “we c[ould not] say that a

reasonable correctional officer would have clearly

understood that the risk of serious harm was so high that he

should not have authorized the double-celling.” Id.

Horton built upon Estate of Ford’s rationale. There, an

officer left Horton, a pre-trial detainee, alone in his jail cell

28 SANDOVAL V. COUNTY OF SAN DIEGO

for a prolonged period of time, despite having been warned

by Horton’s mother in a phone call that he was a suicide risk.

Horton, 915 F.3d at 597–98. After turning to some

paperwork, the officer went to check on Horton and found

him hanging from the cell door, unmoving. Although

Horton survived, the delay in treatment led to severe and

permanent brain damage. The law at the time of the incident

was the pre-Gordon deliberate indifference standard. Id.

at 599. Relying on Estate of Ford, we observed that

“deliberate indifference claims [under the pre-Gordon

standard] ‘depend in part on a subjective test that does not

fit easily with the qualified immunity inquiry,’ which is an

objective inquiry.” Id. (quoting Estate of Ford, 301 F.3d

at 1050); see also Harlow v. Fitzgerald, 457 U.S. 800, 817–

18 (1982) (explaining that qualified immunity examines “the

objective reasonableness of an official’s conduct, as

measured by reference to clearly established law”).

Therefore, “even where the clearly established legal standard

requires [subjective] deliberate indifference, the qualified

immunity inquiry should concentrate on the objective

aspects of the constitutional standard.” Horton, 915 F.3d at

600.

Thus, the officer would enjoy qualified immunity unless

Horton demonstrated that, “given the available case law at

the time of his attempted suicide, a reasonable officer,

knowing what [the officer] knew, would have understood

that failing to check on Horton immediately after the phone

call with [Horton’s mother] presented such a substantial risk

of harm to Horton that the failure to act was

unconstitutional.” Id. As in Estate of Ford, we concluded

that the officer was entitled to qualified immunity, because

“the case law at the time of Horton’s attempted suicide was

simply too sparse, and involved circumstances too distinct

from those [of Horton], to establish that a reasonable officer

SANDOVAL V. COUNTY OF SAN DIEGO 29

would perceive a substantial risk that Horton would

imminently attempt suicide.” Id. at 601–02.

After determining that the officer was entitled to

qualified immunity because the law was not clearly

established that the officer’s failure to immediately act upon

the suicide warning violated the constitutional right to

adequate medical care, it was unnecessary for us to reach the

question whether a constitutional violation had actually

occurred, and we declined to do so. Id. at 602. However,

we explicitly recognized that were we required to address

whether the officer’s conduct violated the constitution, the

Gordon objective standard would “guide our analysis of

whether a constitutional violation occurred.” Id. This was

because in Gordon we had “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.” Id.

The rule of Horton, aside from the fact that it is

controlling precedent, makes sense. The purpose of

determining whether there has been a constitutional

violation has always been to “further the development of

constitutional precedent.” Pearson, 555 U.S. 237; see also

Saucier, 533 U.S. at 201. It would run counter to that goal

to apply the pre-Gordon standard now, because “no purpose

would be served for future cases from delineating the

application of that standard to the constitutional merits of

this case.” Horton, 915 F.3d at 602. 9

9

The dissent misreads Horton to conclude that the subjective

element of the pre-Gordon standard governs the analysis of whether the

nurses violated Sandoval’s clearly established constitutional right to

adequate medical care. Dissent at 58–59. In Horton, we simply

30 SANDOVAL V. COUNTY OF SAN DIEGO

Horton’s recognition that the objective deliberate

indifference standard applies even when the incident

occurred pre-Gordon comports with the purpose underlying

the clearly established law requirement. As the Supreme

Court has explained, this requirement is designed to “give[]

government officials breathing room to make reasonable but

mistaken judgments about open legal questions.” Ashcroft

v. al-Kidd, 563 U.S. 731, 743 (2011). “[T]he focus is on

whether the [defendant] had fair notice that her conduct was

unlawful . . . .” Kisela v. Hughes, 138 S. Ct. 1148, 1152

(2018) (per curiam) (quoting Brosseau v. Haugen, 543 U.S.

194, 198 (2004) (per curiam)). Thus, as the Supreme Court

has often repeated, the defense of qualified immunity

protects “all but the plainly incompetent or those who

knowingly violate the law.” Ziglar v. Abbasi, 137 S. Ct.

1843, 1867 (2017) (quoting Malley v. Briggs, 475 U.S. 335,

341 (1986)).

Because the premise of qualified immunity is that state

officials should not be held liable for money damages absent

fair warning that their actions were unconstitutional, the

clearly established law standard “requires that the legal

principle clearly prohibit the [defendant’s] conduct in the

particular circumstances before him.” District of Columbia

v. Wesby, 138 S. Ct. 577, 590 (2018). This inquiry is an

objective one that compares the factual circumstances faced

by the defendant to the factual circumstances of prior cases

to determine whether the decisions in the earlier cases would

observed that there was no purpose in analyzing the issue of whether,

applying the Gordon objective deliberate indifference standard, there

was a constitutional violation, as the Horton court had already

determined that the law as to the need for immediate care of a potential

suicide victim was not clearly established, and thus the officers were

entitled to qualified immunity in any event. 915 F.3d at 602.

SANDOVAL V. COUNTY OF SAN DIEGO 31

have made clear to the defendant that his conduct violated

the law. See e.g., Abbasi, 137 S. Ct. at 1866 (“Whether

qualified immunity can be invoked turns on the ‘objective

legal reasonableness’ of the official’s acts.” (citation

omitted)); Harlow, 457 U.S. at 819 (qualified immunity

“turn[s] primarily on objective factors”). The focus is on the

standards governing the defendant’s conduct, not legal

arcana. See Saucier, 533 U.S. at 202–03 (if “various courts

have agreed that certain conduct is a constitutional violation

under facts not distinguishable in a fair way from the facts

presented in the case at hand, the officer would not be

entitled to qualified immunity based simply on the argument

that courts had not agreed on one verbal formulation of the

controlling standard”).

Consistent with this purpose, the qualified immunity

analysis remains objective even when the constitutional

claim at issue involves subjective elements. Crawford-El v.

Britton, 523 U.S. 574, 588–89 (1998) (“[A]lthough evidence

of improper motive is irrelevant on the issue of qualified

immunity, it may be an essential component of the plaintiff’s

affirmative case.”). Thus, in the Eighth Amendment

deliberate indifference context, we have recognized that “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. In

these circumstances, he would be entitled to qualified

immunity.” Estate of Ford, 301 F.3d at 1050. We are not

aware of a single case in which we have examined the

defendant’s mental state in assessing the clearly established

law prong of qualified immunity.

Several other circuits have concluded, as we did in

Horton, that because the clearly established law prong

32 SANDOVAL V. COUNTY OF SAN DIEGO

focuses objectively on whether it would be clear that the

defendant’s conduct violated the Constitution, lack of notice

regarding the mental state required to establish liability has

no bearing on the analysis.

Take, for example, the Seventh Circuit’s decision on

remand from the Supreme Court in Kingsley itself. See

Kingsley v. Hendrickson, 801 F.3d 828 (7th Cir. 2015) (per

curiam) (“Kingsley II”). At the trial that took place before

the case reached the Supreme Court, the district court’s

instructions on the excessive force claims “suggested the

jury should weigh [the defendants’] subjective reasons for

using force and subjective views about the excessiveness of

the force.” Kingsley, 576 U.S. at 403–04. Under that

standard, the jury found in the defendants’ favor. Id. at 394.

The Supreme Court later concluded, however, that the

standard should have been objective unreasonableness. Id.

at 392. On remand, the Kingsley defendants advanced a

view of qualified immunity similar to the one the nurses

offer here. They argued that because the Supreme Court’s

decision had “altered the substantive law of liability,” their

liability should not be assessed under the new objective

unreasonableness standard, which had not been clearly

established at the time of the incident in the case. Kingsley

II, 801 F.3d at 831.

In addressing this argument, the Seventh Circuit first

concluded that prior cases had clearly established that the

force used by the officers was excessive—i.e., that their

conduct was unlawful. Id. at 832. It then turned to the

defendants’ argument that they were nevertheless entitled to

qualified immunity because the standard had changed from

subjective awareness to objective unreasonableness during

the course of the litigation. Id. 832–33. Rejecting this

position, the Seventh Circuit explained that it “would

SANDOVAL V. COUNTY OF SAN DIEGO 33

untether the qualified immunity defense from its moorings

of protecting those acting in reliance on a standard that is

later determined to be infirm.” Id. at 832. Reliance interests

were not implicated there, it said, because before and after

the Supreme Court’s decision, “the standards for the amount

of force that c[ould] be permissibly employed remain[ed] the

same.” Id. The Seventh Circuit concluded that to decide

otherwise would require it “to accept the dubious proposition

that, at the time the officers acted, they were on notice only

that they could not have a reckless or malicious intent and

that, as long as they acted without such an intent, they could

apply any degree of force they chose.” Id. at 833. It declined

to do so. Id.

Like the Seventh Circuit, the Sixth Circuit has rejected

the argument that defendants facing claims of excessive

force based on pre-Kingsley conduct are entitled to qualified

immunity simply because it would not have been clear at the

time of their unconstitutional conduct that any claims against

them would be governed by an objective standard. Hopper

v. Plummer, 887 F.3d 744, 755–56 (6th Cir. 2018). As the

court there explained, “a defendant is not entitled to qualified

immunity simply because the courts have not agreed upon

the precise formulation of the applicable standard. Rather,

the relevant question under the clearly established prong is

whether defendants had notice that their conduct was

unlawful in the situation they confronted.” Id. (emphasis

added, internal citations omitted, and cleaned up). The First

and Fifth Circuits have reached similar conclusions.

Miranda-Rivera v. Toledo-Davila, 813 F.3d 64, 72–73 (1st

Cir. 2016) (Ninth Circuit Judge Hawkins, sitting by

designation) (holding that despite uncertainty about the

governing legal standard, the defendants were not entitled to

qualified immunity because “a reasonable officer would

have known that using force in the way that the officers here

34 SANDOVAL V. COUNTY OF SAN DIEGO

appear to have done in the particular factual circumstances

that they encountered violated [the plaintiff’s] constitutional

rights”); Dyer v. Houston, 964 F.3d 374, 384 (5th Cir. 2020)

(concluding that confusion in the case law about whether

subjective intent was required to prove an inadequate

medical care claim did not mean the defendants were per se

entitled to qualified immunity, and that “the district court

was still required to analyze whether the [defendants’]

alleged conduct contravened clearly established law”).

Rather than sticking to our settled approach, the dissent

would, for the first time, drag a subjective element into the

question of whether a defendant violated clearly established

law. For example, the dissent concludes Nurse de Guzman

is entitled to qualified immunity—regardless of whether it

would have been clear to every reasonable nurse that his

conduct was unlawful—because there is, supposedly,

insufficient evidence that de Guzman subjectively

understood that Sandoval faced a serious medical need. 10

Dissent at 65–68.

This radical reimagination of qualified immunity would

produce results directly contrary to the purposes served by

the doctrine—giving “government officials breathing room

to make reasonable but mistaken judgments about open legal

questions,” al-Kidd, 563 U.S. at 743, while at the same time

ensuring that a plaintiff can recover damages from a

defendant who acts so unreasonably in light of established

case law that he is appropriately described as “plainly

incompetent,” Abbasi, 137 S. Ct. at 1867. Consider how the

dissent’s approach would play out in practice. Here, there is

10

As discussed below, infra note 16, this conclusion is incorrect

even on its own terms, viewing the facts in the light most favorable to

plaintiff, as we must on summary judgment.

SANDOVAL V. COUNTY OF SAN DIEGO 35

no dispute that the objective unreasonableness standard from

Gordon governs the merits of Plaintiff’s claims. Thus, had

the nurses not raised a qualified immunity defense,

presumably even the dissent would agree that objective

unreasonableness alone would be sufficient to establish their

liability.11 Yet the dissent would use qualified immunity, a

defense designed “to shield officials . . . when they perform

their duties reasonably,” Pearson, 555 U.S. at 231 (emphasis

added), to require Plaintiff to satisfy a standard under which

the nurses would be protected from liability—no matter how

unreasonable their conduct—as long as they did not

subjectively appreciate that their actions put Sandoval at a

substantial risk of suffering serious harm. We cannot accept

this extraordinary proposition, which would transform a

defense that protects “all but the plainly incompetent,” into

one that provides immunity to defendants precisely because

they were so incompetent that they did not understand the

patent unreasonableness of their conduct as already

established by law. 12 See Abbasi, 137 S. Ct. at 1867

11

Or, perhaps not. It is not clear the dissent appreciates that the

affirmative defense of qualified immunity is distinct from the merits of

the plaintiff’s constitutional claim. See Estate of Ford, 301 F.3d at 1049.

While the plaintiff’s claim may have subjective elements, as inadequate

medical care claims did before Gordon, the clearly established law

inquiry is always an objective one that looks to whether it would have

been clear to a reasonable person in the defendant’s position that his

conduct was unlawful. Horton, 915 F.3d at 600. Here, the subjective

aspect of Plaintiff’s claim for relief changed during the course of this

litigation. The objective nature of the qualified immunity defense did

not.

12

As support for its position, the dissent cites only our unpublished

memorandum disposition in Acosta v. Hill, 244 F. App’x 792 (9th Cir.

2007). Dissent at 54. Putting aside that Acosta is not binding precedent,

it also has nothing to do with the issues in this case. Acosta involved a

change in the law governing what constituted “deadly force.” Id. at 794;

36 SANDOVAL V. COUNTY OF SAN DIEGO

(explaining that a defendant can be either plainly

incompetent or entitled to qualified immunity, but not, as the

dissent would have it, both at the same time).

The dissent’s position might be justified if we could

somehow conclude that the nurses relied on the subjective

deliberate indifference standard in determining how to treat

Sandoval. But to speak the thought is to recognize that it

makes little sense. As the clearly established law prong of

qualified immunity is typically applied, we impute to the

defendant knowledge of the relevant case law governing his

conduct. Thus, if there is binding precedent holding that a

police officer may not use deadly force against an unarmed

fleeing suspect, 13 future officers are expected to tailor their

conduct accordingly. Those who fail to do so are not entitled

see Smith v. City of Hemet, 394 F.3d 689, 705–07 (9th Cir. 2005) (en

banc). Given constitutional restrictions on when a police officer may use

deadly force, the change in the definition of deadly force necessarily

affected when officers could justifiably use certain types of force. In

other words, as the decision itself makes clear, Acosta involved a change

in the law governing the defendants’ conduct. 244 F. App’x at 794

(“Under qualified immunity, the officers didn’t have ‘fair warning’ that

their actions may have been unconstitutional.”). Acosta therefore stands

for nothing more than the well-settled rule that clearly established law

must provide the defendant with notice that his conduct was unlawful in

the situation he confronted—exactly the standard we apply in this case.

It provides no support for the dissent’s far more reaching assertion: even

if prior case law made clear that the nurses’ response to Sandoval’s

condition was constitutionally inadequate—even if there were a

precedential case finding a constitutional violation on exactly the same

facts—the nurses would still be entitled to qualified immunity as long as

they did not subjectively understand that their actions were unlawful.

13

See Tennessee v. Garner, 471 U.S. 1 (1985).

SANDOVAL V. COUNTY OF SAN DIEGO 37

to qualified immunity.14 They have received their “fair

notice” and squandered it. Hughes, 138 S. Ct. at 1152.

But how would an official who believes any claims

against him would be tried under a subjective deliberate

indifference standard act any differently than one who

knows that an objective unreasonableness standard applies?

It is not as if an individual can consciously control the extent

to which he is subjectively aware of the wrongfulness of his

conduct. It therefore seems likely that officials responsible

for providing medical care to inmates will act in exactly the

same manner after Gordon as they did before. They will

provide the treatment they think necessary under the

circumstances, mindful of what our cases dictate is

appropriate conduct in different factual scenarios, and, in the

event they subjectively believe the treatment they are

providing is inadequate, they will, we would hope, adjust

their conduct accordingly.

It is true that after Gordon, state officials may now be

held liable for providing inadequate medical care even when

they were not subjectively aware of the unreasonableness of

their conduct. But as the Seventh Circuit has explained, this

change could affect an official’s on-the-ground actions only

if we were to assume that before Gordon, officials acted in

reliance on the belief that as long as they were not

subjectively aware that their conduct created a substantial

risk of serious harm to an inmate, they could provide any

level of medical care they so chose, no matter how obviously

deficient. Kingsley II, 801 F.3d at 832–33. Like the Sixth

14

E.g., A.K.H. ex rel. Landeros v. City of Tustin, 837 F.3d 1005,

1013 (9th Cir. 2016).

38 SANDOVAL V. COUNTY OF SAN DIEGO

and Seventh Circuits, we refuse to accept this “dubious

proposition.” Id.; Hopper, 887 F.3d at 755. 15

In sum, as we previously concluded in Horton, when the

governing law has changed since the time of the incident, we

apply the current law to determine if a constitutional

violation took place under the first prong of qualified

immunity analysis, and the second prong remains what it has

always been: an objective examination of whether

established case law would make clear to every reasonable

official that the defendant’s conduct was unlawful in the

situation he confronted. Horton, 915 F.3d at 600–602. We

will approach our analysis accordingly.

We have already determined that there is a triable issue

of fact whether the nurses committed constitutional

violations under the Gordon standard, which governs the

violation prong of our qualified immunity analysis. See id.

at 602. We turn now to whether the right was clearly

established at the time.

15

We recognize that three circuits appear to have concluded after

Kingsley that they were required to apply a subjective framework for

purposes of qualified immunity, even though it had since been replaced

by an objective standard. Quintana v. Santa Fe Cnty. Bd. of

Commissioners, 973 F.3d 1022 (10th Cir. 2020); Kedra v. Schroeter,

876 F.3d 424, 440 (3d Cir. 2017); Hall v. Ramsey County, 801 F.3d 912,

917 n.3 (8th Cir. 2015). But in their cursory discussions of the issue,

none of these courts appear to have contemplated that the clearly

established law analysis may apply differently when a post-incident

change in law concerns the mental state required to prove a claim rather

than the lawfulness of the defendants’ conduct. Nor do they explain why

applying a since-abrogated subjective standard would be consistent with

the purpose of qualified immunity: providing defendants with “fair

notice that [their] conduct was unlawful.” Hughes, 138 S. Ct. at 1152.

We are therefore not persuaded by their analyses.

SANDOVAL V. COUNTY OF SAN DIEGO 39

B.

Applying Horton’s approach here, to defeat qualified

immunity for the Officers, Plaintiff must show that, given

the available case law at the time, a reasonable nurse,

knowing what Llamado, Harris, and de Guzman knew,

would have understood that failing to call paramedics

(Llamdo and Harris), or failing to check on Sandoval for

hours and failing to pass on information about his condition

(de Guzman), “presented such a substantial risk of harm to

[Sandoval] that the failure to act was unconstitutional.”

Horton, 915 F.3d at 600. The nurses’ actual subjective

appreciation of the risk is not an element of the established-

law inquiry. We conclude that Sandoval has demonstrated

that the available law was clearly established as to the

unreasonableness of the nurses’ conduct.

Beginning with Nurses Harris and Llamado, it has long

been established that “failing to provide . . . life-saving

measures to an inmate in obvious need can provide the basis

for liability under § 1983 for deliberate indifference.”

Lemire v. Cal. Dep’t of Corr. & Rehab., 726 F.3d 1062, 1082

(9th Cir. 2013). In Lemire, we held that officers who

discovered an inmate unconscious after a suicide attempt

could be liable when they failed to immediately begin

performing CPR or any other “life saving action[s]” on the

inmate and instead waited several minutes for medical

professionals to arrive. Id. at 1083.

The case for deliberate indifference is at least as strong

here. Viewing the evidence in the light most favorable to

Plaintiff, Nurses Llamado and Harris, trained medical

professionals, knew that Sandoval was unresponsive and

seizing but failed to promptly summon paramedics. Calling

paramedics was “[s]tandard nursing protocol” for prolonged

seizures, and every reasonable nurse would have understood

40 SANDOVAL V. COUNTY OF SAN DIEGO

that paramedics were the only individuals capable of

transporting Sandoval to the hospital. Because every

reasonable nurse, knowing what Llamado and Harris knew,

would have understood that not calling paramedics

amounted to an unconstitutional failure to provide “life-

saving measures to an inmate in obvious need,” id. at 1082,

Harris and Llamado are not entitled to qualified immunity,

see Horton, 915 F.3d at 600.

We reach the same conclusion with regard to Nurse de

Guzman. As we have previously explained, a reasonable

nurse in de Guzman’s position—i.e., a nurse who was told

that Sandoval was sweating, tired, and disoriented, and that

“there was still something going on” that needed to be

“look[ed] at . . . more thoroughly”—would understand that

Sandoval faced a substantial risk of serious harm. The

question thus becomes whether every reasonable nurse

would understand, in light of established case law, that de

Guzman violated Sandoval’s constitutional right to adequate

medical care when he responded by merely performing a 10-

second blood sugar test—a test performed earlier to no

avail—and then walking away, leaving Sandoval unattended

for six hours despite the fact that he was only 20 feet from

de Guzman’s nursing station. In light of our precedent, all

reasonable nurses would understand that de Guzman’s

minimal—almost non-existent—course of treatment

violated the Constitution.

Our cases make clear that prison officials violate the

Constitution when they “deny, delay or intentionally

interfere” with needed medical treatment. Jett v. Penner,

439 F.3d 1091, 1096 (9th Cir. 2006) (citation omitted). The

same is true when prison officials choose a course of

treatment that is “medically unacceptable under the

circumstances.” Snow v. McDaniel, 681 F.3d 978, 988 (9th

SANDOVAL V. COUNTY OF SAN DIEGO 41

Cir. 2012) (quoting Jackson v. McIntosh, 90 F.3d 330, 332

(9th Cir. 1996)), overruled on other grounds by Peralta,

744 F.3d 1076.

We have applied this standard on several occasions. In

Clement v. Gomez, we held that correctional officers could

be liable for failing to provide constitutionally adequate

medical care when they knew that inmates had been exposed

to pepper spray but waited four hours before allowing them

to leave their cells to shower. 298 F.3d 898, 902, 904–05

(9th Cir. 2002). Similarly, in Jett v. Penner, we held that a

doctor could be held liable for a constitutional violation

when he knew that an inmate’s thumb was fractured but

failed to ensure that the fracture was set and cast. 439 F.3d

at 1097–98; see also Hunt v. Dental Dep’t, 865 F.2d 198,

200 (9th Cir. 1989) (plaintiff could establish a constitutional

violation when prison officials were aware that he was

suffering from bleeding gums and broken teeth as a result of

broken dentures but “failed to take any action to relieve his

pain or to prescribe a soft food diet until new dentures could

be fitted”). The rule reflected in these decisions is clear: a

prison official who is aware that an inmate is suffering from

a serious acute medical condition violates the Constitution

when he stands idly by rather than responding with

reasonable diligence to treat the condition.

To be sure, we have never before addressed the specific

factual circumstances here, where a nurse is told that a

patient is sweating, disoriented, and in need of a more

thorough look but does nothing more than perform a quick

10-second blood test. But de Guzman is not entitled to

qualified immunity simply because “the very action in

question has [not] previously been held unlawful.” Hope v.

Pelzer, 536 U.S. 730, 739 (2002) (quoting Anderson v.

Creighton, 483 U.S. 635, 640 (1987)). State “‘[o]fficials can

42 SANDOVAL V. COUNTY OF SAN DIEGO

still be on notice that their conduct violates established law

even in novel factual circumstances’—i.e., even without a

prior case that had ‘fundamentally similar’ or ‘materially

similar’ facts.” Wilk, 956 F.3d at 1148 (quoting Hope,

536 U.S. at 741); cf. Castro, 833 F.3d at 1067 (“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.”).

If it is a constitutional violation to delay treatment for

four hours for inmates exposed to pepper spray, Clement,

298 F.3d at 905, or to fail to promptly set a fractured thumb,

Jett, 439 F.3d at 1097–98—neither of which are potentially

life-threatening conditions—the same must be true for

failing to provide any meaningful treatment to an inmate

who was sweating and appeared so tired and disoriented that

a deputy urged that he be re-evaluated. Accordingly, every

reasonable nurse in Nurse de Guzman’s position would have

understood that his treatment of Sandoval, or lack thereof,

was constitutionally inadequate. 16

16

Even under the dissent’s subjective standard, Nurse de Guzman

would not be entitled to qualified immunity because a jury could

conclude from his suggestion that Sandoval be moved to a sobering tank,

where individuals under the influence of drugs or alcohol are placed for

observation by medical staff, that de Guzman himself subjectively

understood that Sandoval had a serious condition requiring medical

treatment. The dissent reaches a contrary conclusion only by adopting a

view of the evidence that not even Nurse de Guzman has advanced. It

interprets de Guzman’s recommendation that Sandoval be moved to a

sobering tank to negate any inference that de Guzman understood the

seriousness of Sandoval’s condition, ostensibly because de Guzman

knew that inmates in a sobering cell would be checked only every four

hours. Dissent at 67–68. Perhaps a jury could come to this conclusion,

if de Guzman were to actually argue it. But it is not the only reasonable

SANDOVAL V. COUNTY OF SAN DIEGO 43

We emphasize that this is not a case where a nurse

mistakenly misdiagnosed a patient after reasonably

attempting to ascertain the cause of unexplained symptoms.

Instead, viewing the evidence in the light most favorable to

Plaintiff, Nurse de Guzman made essentially no effort to

determine why Sandoval was suffering the symptoms

reported by Deputy Chavez, nor did he attempt to treat those

symptoms. He then abandoned Sandoval for the remaining

six hours of his shift and failed to pass along any information

to the nurses who relieved him. On these facts, de Guzman

is not entitled to qualified immunity. Of course, it remains

to be determined at trial whether the nurses violated

Sandoval’s clearly established rights. Thus, summary

judgment on qualified immunity should not have been

awarded to defendant nurses.

VI.

Having determined that the individual nurse defendants

are not entitled to summary judgment, we now turn to the

claims against the County. Under Monell v. Department of

Social Services, the County can be liable under § 1983 if its

“policy or custom” caused Sandoval’s injuries through

deliberate indifference to his constitutional right to adequate

inference that could be drawn from de Guzman’s sobering tank

comment. For example, a jury could find that de Guzman attempted to

send Sandoval to a sobering cell, where another nurse would be

responsible for his care, precisely because he understood that Sandoval

required treatment and did not want to deal with the hassle of providing

it. Because de Guzman’s statement is susceptible of interpretations

under which he would not be entitled to qualified immunity, it cannot be

used to justify a grant of summary judgment. Tuumalemalo, 946 F.3d

at 478.

44 SANDOVAL V. COUNTY OF SAN DIEGO

medical care. 436 U.S. 658, 694 (1978); see also Castro,

833 F.3d at 1073.

The practice or custom at issue here is the County’s use

of MOC1 as a “mixed use” cell—sometimes used to hold

inmates requiring medical care and other times used as a

general holding cell—without adequate safeguards in place

to ensure that jail staff were made aware when an individual

was placed in MOC1 for medical, rather than correctional,

reasons. According to Nurse Llamado, unlike with other

medical cells at the jail (so-called sobering or safety cells),

there was “no standing obligation . . . for a nurse to routinely

monitor somebody in [MOC1].” Instead, a nurse would

attend to MOC1 only when told by a deputy or another nurse

that an inmate there required treatment.

Crucially, this system depended entirely on verbal

communication. Unless directly told otherwise, nurses

assumed that individuals in MOC1 were being held there for

non-medical purposes. And even when deputies verbally

passed off responsibility for the cell to one shift of nurses,

the relief shift had no way of knowing whether to monitor

MOC1 unless specifically told to do so by the nurses they

were replacing. Unlike with the jail’s sobering and safety

cells, there were no written nursing logs for MOC1. And

though the nursing unit had a whiteboard listing the names

of inmates in the sobering and safety cells, the board had no

space to list inmates being held in MOC1. These practices

created a substantial risk of turning MOC1 into a veritable

no man’s land, where deputies believed the cell was being

monitored by nurses, and nurses believed it was being

monitored by deputies.

Nurses at the jail explained that the informal verbal pass-

off system for MOC1 created confusion. The facts of this

case bear that out. The deputies believed that Nurse de

SANDOVAL V. COUNTY OF SAN DIEGO 45

Guzman knew that Sandoval was in MOC1 because he

required monitoring by the medical staff. In contrast, Nurse

de Guzman was adamant that because he had ostensibly

cleared Sandoval for booking, Sandoval must have been left

in MOC1 for correctional purposes. As a result, de Guzman

did not inform the night shift nurses that Sandoval required

care. This evidence is sufficient to allow a jury to find that

the County had an established practice of using MOC1 as a

mixed-use cell without the safeguards necessary to ensure

that the jail’s medical staff knew when an inmate held there

required medical treatment or observation.

The next question is whether there is a “direct causal

link” between the County’s practice with regard to MOC1

and Sandoval’s injuries. Castro, 833 F.3d at 1075 (quoting

City of Canton v. Harris, 489 U.S. 378, 385 (1989)). As

Nurses de Guzman and Llamado acknowledged, inmates in

other medical cells were checked at least once every four

hours. A jury could infer that Sandoval would have received

similar monitoring had the County put in place measures to

ensure the nursing staff knew when an inmate was placed in

MOC1 for medical reasons. Moreover, had the nursing staff

maintained written logs for patients held in MOC1, as they

did for other medical cells, the incoming night shift nurses

might have learned of Sandoval’s condition from those logs

and monitored him more closely. A jury could find that had

Sandoval been monitored by the nursing staff—instead of

being abandoned for nearly eight hours—his deteriorating

medical condition would have been discovered earlier. And

Plaintiff’s expert, Dr. Falgiani, opined that Sandoval likely

would have survived the overdose if he had been taken to the

hospital at any time before he went into cardiac arrest. This

is sufficient to create a genuine dispute of material fact as to

whether the County’s practices caused Sandoval’s death.

46 SANDOVAL V. COUNTY OF SAN DIEGO

Finally, we address whether the evidence would support

a finding of objective deliberate indifference on the part of

the County. Id. at 1076. This requires a showing that the

facts available to the County put it on “actual or constructive

notice” that its practices with regard to MOC1 were

“substantially certain to result in the violation of the

constitutional rights of [its] citizens.” 17 Id. (emphasis

removed) (quoting Harris, 489 U.S. at 396 (O’Connor, J.,

concurring)).

In granting summary judgment to the County, the district

court concluded that Plaintiff could not establish deliberate

indifference because there was no evidence that the failure

to implement adequate communication safeguards had

caused “prior injury or death to MOC1 inhabitants.” The

County does not defend this rationale on appeal, and for

good reason. To establish her claim, Plaintiff must show that

the County had actual or constructive knowledge that its

practices were substantially certain to cause a constitutional

17

This deliberate indifference standard does not apply when a

Monell defendant’s policies, customs, or practices directly require

unconstitutional conduct—for example, “a city’s policy of

discriminating against pregnant women in violation of the Fourteenth

Amendment.” Gibson, 290 F.3d at 1185–86, overruled on other grounds

by Castro, 833 F.3d 1060. Plaintiff suggests that the County had a direct

policy requiring the medical staff to “ignore the inmates in [MOC1]

unless told otherwise.” But there is no evidence that the County wanted

nurses to ignore all inmates in MOC1, even those suffering from medical

problems. To the contrary, the evidence shows that nurses understood

they were supposed to monitor MOC1 when it was being used to hold

inmates requiring medical care. That Sandoval was ignored for almost

eight hours was not the purpose of the County’s policies but rather a

tragic consequence of its failure to implement measures necessary to

ensure the nursing staff knew when an individual was being held in

MOC1 for medical reasons. Deliberate indifference is therefore the

appropriate standard.

SANDOVAL V. COUNTY OF SAN DIEGO 47

violation. Id. This standard does not require proof of a prior

injury. A constitutional injury can be substantially certain to

follow from a practice even if an injury has yet to occur.

Otherwise, every Monell defendant would get “one free . . .

pass” for policies or practices that are substantially certain to

violate an individual’s constitutional rights. Woodward v.

Corr. Med. Servs. of Ill., Inc., 368 F.3d 917, 929 (7th Cir.

2004) (cleaned up).

Under the proper standard, it is a close question whether

Plaintiff has mustered sufficient evidence to create a triable

issue of fact on whether the County was deliberately

indifferent. There is certainly enough evidence to support a

finding of negligence. But to establish deliberate

indifference, Plaintiff must prove that the County had actual

or constructive knowledge that the failure to implement

protocols necessary to ensure that nurses knew when inmates

in MOC1 required medical care was “substantially certain”

to result in inmates failing to receive the proper treatment,

creating a likelihood of serious injury or death. Castro,

833 F.3d at 1076.

Ultimately, we conclude that summary judgment should

not have been granted on the County’s liability under

Monell. Plaintiff has put forward sufficient circumstantial

evidence of the County’s knowledge such that a reasonable

jury could find deliberate indifference.

To begin, a jury could infer from the more rigorous

policies the County put in place for the sobering and safety

cells that it was aware of the importance of ensuring that the

nursing staff knew which inmates required medical

treatment or observation. For the sobering and safety cells,

the medical staff listed the name and location of each patient

on a whiteboard. Specific nurses were assigned to monitor

each cell. And nurses filled out written logs with their

48 SANDOVAL V. COUNTY OF SAN DIEGO

observations of the inmates held in those cells. A reasonable

jury could conclude that the County implemented these

practices because it understood they were necessary to

ensure that inmates requiring medical care would not fall

through the cracks. Cf. id. at 1077 (explaining that a

county’s knowledge can be inferred from its ordinances).

This conclusion is only reinforced by the fact that, after

Sandoval’s death, the County put in place a new practice for

MOC1. Now, when a deputy places an inmate requiring

medical care in MOC1, he must place a magnetic placard on

the door indicating that the inmate is there for medical

reasons. A jury could view this as an acknowledgement by

the County that its prior practices—which relied exclusively

on verbal communication—were insufficient. 18 And, as

explained, it could be reasonably inferred from the fact that

the County had implemented more extensive tracking

measures for the sobering and safety cells that it knew at the

time that relying on verbal communications alone would

create a substantial risk that an inmate’s serious medical

needs could go unaddressed.

That is not to say that a jury is required to find deliberate

indifference on the record before us. Perhaps the County

could show at trial that there were good reasons for treating

MOC1 differently from the other medical cells, and that

despite the policies put in place for the sobering and safety

cells, it was not aware that similar practices were required to

18

To the extent the dissent suggests that evidence of the County’s

change in policy would be inadmissible as a subsequent remedial

measure under Federal Rule of Evidence 407, Dissent at 73, the County

forfeited this objection by failing to raise it in the district court. Skillsky

v. Lucky Stores, Inc., 893 F.2d 1088, 1094 (9th Cir. 1990) (“[F]ailure to

object to allegedly defective evidence waives the objection for purposes

of summary judgment[.]”).

SANDOVAL V. COUNTY OF SAN DIEGO 49

provide adequate medical care in MOC1. But viewing the

evidence in the light most favorable to Plaintiff, we conclude

that there is a triable issue of fact as to the County’s liability

under Monell.

* * *

Viewing the evidence in Plaintiff’s favor, a jury could

conclude that Ronnie Sandoval would not have died but for

the defendants’ unreasonable response to his obvious signs

of medical distress. The district court therefore erred in

granting summary judgment. We reverse and remand for

further proceedings consistent with this opinion.

REVERSED.

COLLINS, Circuit Judge, concurring in the judgment in part

and dissenting in part:

Plaintiff Ana Sandoval (“Plaintiff”) brought this action

under 42 U.S.C. § 1983 as the successor in interest to Ronnie

Sandoval (“Sandoval”), who tragically died in custody at the

San Diego Central Jail. 1 During a probation search of his

residence, Sandoval surreptitiously swallowed some

methamphetamine in an apparent effort to avoid its

detection. After he was taken into custody for possession of

drugs and drug paraphernalia that were nonetheless found

during the search, the medical staff at the jail subsequently

1

Ana Sandoval and her children also assert additional state-law

claims on their own behalf, but the district court remanded those claims

to state court after dismissing the § 1983 claims. Ana Sandoval, as

successor in interest to Ronnie Sandoval, is the sole plaintiff in the

§ 1983 claims asserted in the operative complaint.

50 SANDOVAL V. COUNTY OF SAN DIEGO

failed to detect that Sandoval had overdosed and that he was

lying when he said that he was not under the influence.

Compounding these problems, when Sandoval ultimately

collapsed in his cell, there was a delay in summoning the

paramedics needed to address his dire condition. Alleging

that the jail employees violated Sandoval’s constitutional

rights through deliberate indifference to his medical needs,

Plaintiff asserted claims under § 1983 against three of the

jail’s nurses and against the county as operator of the jail.

The district court subsequently granted summary judgment

to all Defendants, and Plaintiff appeals the dismissal of the

§ 1983 claims.

I agree with the majority’s ultimate conclusion that

Nurses Dana Harris and Maria Llamado were not entitled to

summary judgment, but I would affirm the district court’s

grant of summary judgment to Nurse Romeo de Guzman and

to the County of San Diego. Because my reasoning differs

from the majority’s even with respect to Harris and Llamado,

I concur only in the judgment in part, and I otherwise

respectfully dissent.

I

Before turning to the merits, I must first briefly respond

to the majority’s unsolicited essay on the district court’s

evidentiary rulings. The district court held that, by failing to

respond to Defendants’ evidentiary objections to the

evidence Plaintiff had submitted in opposition to

Defendants’ summary judgment motion, Plaintiff forfeited

any challenge to those evidentiary objections, which the

court therefore sustained. In her opening brief in this court,

Plaintiff challenged the district court’s evidentiary ruling

with respect to only one item of evidence that she had

submitted—viz., the report prepared by one of the police

officers in this matter. As I explain below, I agree with

SANDOVAL V. COUNTY OF SAN DIEGO 51

Plaintiff that this document was admissible and that the

district court erred in concluding otherwise. See infra at 65

n.4. That observation suffices to dispose of the evidentiary

issues raised in the parties’ briefs in this court, and we should

have stopped there.

Nonetheless, the majority gratuitously proceeds to

engage in a lengthy lecture about the perceived inadequacy

of the Defendants’ evidentiary objections below and of the

district court’s ruling on them. See Maj. Opin. at 12–16. But

given that no party asked us in the merits briefs to review

any other evidentiary issue, the majority should not have

raised this panoply of additional issues sua sponte. See

United States v. Sineneng-Smith, 140 S. Ct. 1575, 1579

(2020) (“In our adversarial system of adjudication, we

follow the principle of party presentation,” under which

“‘we rely on the parties to frame the issues for decision and

assign to courts the role of neutral arbiter of matters the

parties present.’” (citation omitted)); Independent Towers of

Washington v. Washington, 350 F.3d 925, 929 (9th Cir.

2003) (“Our circuit has repeatedly admonished that we

cannot ‘manufacture arguments for an appellant’ and

therefore we will not consider any claims that were not

actually argued in appellant’s opening brief.” (citation

omitted)).

II

The district court granted summary judgment to the three

individual Defendants (the “Nurses”), concluding that

Plaintiff had failed to establish the requisite deliberate

indifference and that, in any event, the Nurses were entitled

to qualified immunity. In reversing the judgment as to the

Nurses, the majority applies the wrong legal standards to the

qualified immunity inquiry and, as to Nurse de Guzman,

reaches the wrong result.

52 SANDOVAL V. COUNTY OF SAN DIEGO

A

In opposing the Nurses’ claim of qualified immunity,

Plaintiff had to show that the Nurses violated clearly

established law as it stood in 2014, when they acted.

Because the then-controlling deliberate-indifference liability

standards included a subjective element, Plaintiff therefore

had to make a showing of subjective deliberate indifference

to defeat qualified immunity, and she had to do so even

though that subjective element of the test for liability has

since been overruled. The majority errs—and expressly

creates a circuit split—in reaching the oxymoronic

conclusion that a county employee who did not even violate

the law at the time he or she acted can nonetheless be said to

have violated clearly established law at that time.

1

Jail employees are entitled to qualified immunity “unless

(1) they violated a federal statutory or constitutional right,

and (2) the unlawfulness of their conduct was ‘clearly

established at the time.’” District of Columbia v. Wesby,

138 S. Ct. 577, 589 (2018) (quoting Reichle v. Howards,

566 U.S. 658, 664 (2012)). Whether an employee’s conduct

violated clearly established law must be “‘judged against the

backdrop of the law at the time of the conduct.’” Kisela v.

Hughes, 138 S. Ct. 1148, 1152 (2018) (quoting Brosseau v.

Haugen, 543 U.S. 194, 198 (2004)). Changes in the

applicable law that occur subsequent to the employee’s

actions are “therefore ‘of no use in the clearly established

inquiry.’” Id. at 1154 (quoting Brosseau, 543 U.S. at 200

n.4). Because the conduct here occurred in 2014, “the law

at that time must be our guide.” Robinson v. Solano Cnty.,

278 F.3d 1007, 1015 (9th Cir. 2002) (en banc).

SANDOVAL V. COUNTY OF SAN DIEGO 53

Current Ninth Circuit law holds that, in light of the

Supreme Court’s decision in Kingsley v. Hendrickson,

576 U.S. 389 (2015), a pretrial detainee’s claim of deliberate

indifference to serious medical needs “must be evaluated

under an objective deliberate indifference standard,” Gordon

v. County of Orange, 888 F.3d 1118, 1124–25 (9th Cir.

2018) (emphasis added). But at the time the Nurses acted in

this case—i.e., 2014, before the decision in Kingsley—the

then-established Ninth Circuit law provided that the same

“deliberate indifference” standard that applies to Eighth

Amendment medical care claims asserted by convicted

prisoners also “applie[d] to claims that correction facility

officials failed to address the medical needs of pretrial

detainees” in violation of the Fourteenth Amendment.

Clouthier v. County of Contra Costa, 591 F.3d 1232, 1242

(9th Cir. 2010), overruled by Castro v. County of Los

Angeles, 833 F.3d 1060 (9th Cir. 2016) (en banc). 2 Under

this standard, a detainee had to show both a “serious medical

need” and the defendant’s “deliberate indifference” to that

need. Conn v. City of Reno, 591 F.3d 1081, 1095–96 (9th

Cir. 2010), vacated, 563 U.S. 915 (2011), reinstated in

relevant part, 658 F.3d 897 (9th Cir. 2011). To establish the

requisite deliberate indifference, a detainee had to “show

2

In Castro, we expressly “overrule[d] 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.” 833 F.3d at 1070 (emphasis added).

We instead held that a pretrial detainee’s “due process claim for failure

to protect” is governed by a purely objective test. Id. at 1071. In Gordon,

we extended Castro’s reasoning to “claims for violations of the right to

adequate medical care ‘brought by pretrial detainees against individual

defendants under the Fourteenth Amendment,’” and held that such

claims “must be evaluated under an objective deliberate indifference

standard.” 888 F.3d at 1124–25 (quoting Castro, 833 F.3d at 1070).

54 SANDOVAL V. COUNTY OF SAN DIEGO

that the [jail employees] were (a) subjectively aware of the

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

591 F.3d at 1096. In turn, in order for a jail employee to be

found to have such subjective awareness, the employee

“‘must both be aware of facts from which the inference could

be drawn that a substantial risk of serious harm exists, and

he [or she] must also draw the inference.’” Id. (quoting

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

Because the qualified immunity issue turns on whether

“‘any reasonable official in the defendant’s shoes would

have understood that he [or she] was violating’” then-

existing law, Kisela, 138 S. Ct. at 1153 (quoting Plumhoff v.

Rickard, 572 U.S. 765, 779 (2014)), and because then-

existing law required subjective awareness of a serious

medical need, Conn, 591 F.3d at 1096, it follows that a nurse

who, at the time, did not subjectively apprehend Sandoval’s

serious medical needs is entitled to qualified immunity. Put

simply, a nurse who did not violate then-existing law cannot

possibly be said to have violated clearly established law, and

such a nurse is therefore entitled to qualified immunity.

Consequently, unless Plaintiff presented sufficient evidence

to raise a triable issue with respect to (inter alia) a given

nurse’s subjective awareness of Sandoval’s serious medical

needs, that nurse would be entitled to qualified immunity.

See, e.g., Acosta v. Hill, 244 F. App’x 792, 794 (9th Cir.

2007) (where “standard for deadly force” changed by virtue

of intervening en banc decision, qualified immunity was still

analyzed under the previously applicable standard)

(applying Vera Cruz v. City of Escondido, 139 F.3d 659, 660

(9th Cir. 1997), overruled by Smith v. City of Hemet,

394 F.3d 689, 706 (9th Cir. 2005) (en banc)).

SANDOVAL V. COUNTY OF SAN DIEGO 55

2

The majority nonetheless contends that the qualified

immunity inquiry in this case is governed by a purely

objective standard, viz., whether “a reasonable nurse,

knowing what Llamado, Harris, and de Guzman knew,

would have understood that [his or her actions] ‘presented

such a substantial risk of harm to [Sandoval] that the failure

to act was unconstitutional.’” Maj. Opin. at 39 (citation

omitted). According to the majority, the qualified immunity

inquiry requires an exclusively objective focus that

effectively shears off any subjective element of the

previously existing liability standard. As explained above,

this position cannot be correct, because it rests on the self-

contradictory premise that one can violate the clearly

established law at the time without even violating the law at

the time. See supra at 54. Although the majority argues that

its position is required by Ninth Circuit precedent, its ruling

here is both contrary to our caselaw and creates a split with

at least three other circuits.

a

The majority wrongly asserts that its approach was

endorsed in Horton ex rel. Horton v. City of Santa Maria,

915 F.3d 592 (9th Cir. 2019), where we observed that, under

Estate of Ford v. Ramirez-Palmer, 301 F.3d 1043 (9th Cir.

2002), the qualified immunity inquiry in a deliberate

indifference case “should concentrate on the objective

aspects of the constitutional standard.” Horton, 915 F.3d

at 600 (emphasis added). But as a review of our decisions in

Estate of Ford and Horton confirms, this observation merely

reflects the fact that, in most deliberate indifference cases,

the subjective elements of the liability standard have little

work to do at the qualified immunity stage, so that the

resulting focus should ordinarily be on the objective aspects.

56 SANDOVAL V. COUNTY OF SAN DIEGO

The fact that, as a practical matter, the inquiry should

ordinarily “concentrate” on the objective aspects does not

imply (as the majority would have it) that any consideration

of the subjective aspects of the test is forbidden, and in fact

Horton clearly rejects the majority’s view.

In Estate of Ford, we addressed the continued validity of

our prior decision in Hamilton v. Endell, 981 F.2d 1062 (9th

Cir. 1992), which had held that a “finding of deliberate

indifference necessarily precludes a finding of qualified

immunity” inasmuch as “prison officials who deliberately

ignore the serious medical needs of inmates cannot claim

that it was not apparent to a reasonable person that such

actions violated the law.” Id. at 1066 (first emphasis added).

Estate of Ford did not dispute Hamilton’s underlying

premise that, with respect to the subjective aspect of the

deliberate indifference test, the constitutional merits inquiry

and the qualified immunity inquiry collapsed into one

another. But given the Supreme Court’s subsequent

emphasis on maintaining the distinction between the

underlying merits of a claim and the qualified immunity

inquiry, Estate of Ford concluded that Hamilton had erred in

completely “collaps[ing] the deliberate indifference part of

the constitutional inquiry into the qualified immunity

inquiry.” 301 F.3d at 1050 (citing Saucier v. Katz, 533 U.S.

194 (2001)). As Estate of Ford explained, in addition to the

subjective element, the deliberate indifference test has “an

objective component as well,” and with respect to that

component, the merits inquiry and the qualified immunity

inquiry do not collapse together. Id. at 1049–50. Because

the objective component of the deliberate indifference test

requires a “substantial risk of serious harm,” a “reasonable

prison official” could know all the relevant facts and “yet

mistakenly, but reasonably, perceive that the exposure in any

given situation was not that high.” Id. at 1050. In such

SANDOVAL V. COUNTY OF SAN DIEGO 57

circumstances, an officer “would be entitled to qualified

immunity” despite the subjectively malign disregard of what

was wrongly (but reasonably) perceived to be a minor risk.

Id.

Estate of Ford thus did not hold that the qualified

immunity inquiry is exclusively objective and that it

affirmatively disregards any subjective elements of the

underlying liability standard. Rather, Estate of Ford

recognized that, when the underlying liability standard

remains unchanged and has both subjective and objective

components, the merits inquiry and the qualified immunity

inquiry will overlap completely with respect to the subjective

element, but that the same cannot be said of the objective

element. 301 F.3d at 1049–50. In such circumstances, the

qualified immunity inquiry will necessarily focus on the

objective aspects of the test, because the subjective

component of the test “does not fit easily with the qualified

immunity inquiry.” Id. at 1049.

But the situation is different if, after the defendant acted,

the subjective element of the liability standard is modified or

eliminated. In that circumstance, the merits inquiry (which

no longer has that subjective element) will not overlap

completely with the qualified immunity inquiry (which,

because it examines the law at the time the defendant acted,

still does have a subjective element). Thus, in contrast to the

situation in Hamilton and Estate of Ford, the merits and

qualified immunity inquiries in the change-of-law scenario

do not collapse into each other with respect to the previously

applicable subjective element of the liability test. In such a

case, the court therefore must separately consider at the

qualified immunity stage whether the Defendants violated

the law at the time of the conduct, which includes a

58 SANDOVAL V. COUNTY OF SAN DIEGO

consideration of the since-rejected subjective deliberate

indifference standard.

Our decision in Horton, which involved the “attempted

suicide of a jailed pretrial detainee,” confirms this analysis.

915 F.3d at 596. The district court in Horton, applying the

then-applicable subjective test, denied qualified immunity to

defendant police officer Brice, holding that “there is a

genuine issue of fact regarding whether Officer Brice acted

with deliberate indifference to Horton’s safety.” Id. at 598.

Consistent with Estate of Ford, we recognized that, “even

where the clearly established legal standard requires

deliberate indifference”—as it did at the time Brice acted—

“the qualified immunity inquiry should concentrate on the

objective aspects of the constitutional standard.” Id. at 600

(emphasis added). Under Estate of Ford, the fact that there

was a triable issue as to Brice’s subjective knowledge under

the “clearly established legal standard” was not enough to

defeat qualified immunity, because Horton also had to show

that any reasonable officer would have known that Brice’s

actions objectively “presented such a substantial risk of harm

to Horton that the failure to act was unconstitutional.” Id.

Reviewing the caselaw on that objective aspect of the

qualified immunity inquiry at the time that Brice acted, we

held that it was “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.” Id. at 601–02.

Because we reversed the district court’s denial of

qualified immunity based on the objective elements of

clearly established law, we expressly declined to consider,

for qualified immunity purposes, how the subjective

elements of the pre-Castro deliberate indifference test—

which governed at the time of the conduct—applied to

SANDOVAL V. COUNTY OF SAN DIEGO 59

Horton’s case. 915 F.3d at 602. But in discussing this issue,

we expressly noted that the new Gordon objective standard

would not govern this aspect of the inquiry. The objective

standard, we explained, would “guide our analysis” of the

merits 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.” Id.

(emphasis in original). Because the subjective standard was

no longer applicable to future cases and Brice’s entitlement

to qualified immunity had already been established on other

grounds, “no purpose would be served for future cases from

delineating the application of that [pre-Castro] standard to

the constitutional merits of this case.” Id. Thus, although

our finding of qualified immunity based on the objective

element of the pre-Castro test made it unnecessary to

address the subjective element of the test under the

previously applicable law, Horton clearly recognized—

contrary to the majority’s ruling—that the subjective

element remained an aspect of “the two-step qualified

immunity procedure” in the change-of-law scenario. Id.

The “rule of Horton,” see Maj. Opin. at 30, is thus exactly

the opposite of what the majority claims it is.

b

In addition to being inconsistent with our precedent, the

majority’s ruling creates a clear split with the decisions of at

least three other circuits. Indeed, the majority opinion

candidly acknowledges that the Third, Eighth, and Tenth

Circuits have held that courts addressing comparable claims

must “apply a subjective framework for purposes of

qualified immunity, even though it ha[s] since been replaced

60 SANDOVAL V. COUNTY OF SAN DIEGO

by an objective standard.” See Maj. Opin. at 38 n.15

(emphasis added).

For example, in Kedra v. Schroeter, 876 F.3d 424 (3d

Cir. 2017), the Third Circuit addressed a substantive due

process claim arising from an alleged “state-created danger”

involving an accidental shooting during a firearms training

exercise. Id. at 432. Although current Third Circuit law

would apply an “objective” standard in addressing such a

claim, the court held that this standard could not be applied

to the qualified immunity inquiry because “the objective

theory of deliberate indifference was not clearly established

at the time of the shooting.” Id. at 432. As the court

explained, “we assess qualified immunity based on the law

that was ‘clearly established at the time an action occurred,’”

and at the time of the shooting in Kedra, “it was not yet

clearly established whether deliberate indifference in the

substantive due process context was governed by an

objective or subjective standard.” Id. at 440 (citation

omitted). The qualified immunity inquiry thus turned on

whether the plaintiff had “pleaded deliberate indifference

under the subjective test, which was then-clearly

established,” and after reviewing the complaint, the court

concluded that the plaintiff had sufficiently alleged a “state-

created danger based on actual knowledge of a substantial

risk of serious harm—the subjective theory of deliberate

indifference that was then-clearly established.” Id. at 440,

444 (emphasis added).

Likewise, in Hall v. Ramsey County, 801 F.3d 912 (8th

Cir. 2015), the Eighth Circuit held that any change in

liability standards effected by the Supreme Court’s decision

in Kingsley could not have any impact on the qualified

immunity analysis. The court there addressed a Fourteenth

Amendment excessive force claim asserted by an

SANDOVAL V. COUNTY OF SAN DIEGO 61

involuntarily committed person, and the court noted that the

ruling in Kingsley suggested that such a claim would now be

governed by an objective test. Id. at 917 n.3. But the court

held that, because the question of qualified immunity turns

on whether the law was “‘clearly established at the time of

the’ alleged violation,” the decision in “Kingsley does not

[a]ffect the standard against which we evaluate the

[defendants’] conduct in the qualified immunity analysis.”

Id. (citation omitted).

More recently, the Tenth Circuit similarly applied the

subjective deliberate indifference test in addressing whether

jail officials were entitled to qualified immunity with respect

to claims that they had failed to provide necessary medical

care to a pretrial detainee who was experiencing drug

withdrawal symptoms. Quintana v. Santa Fe Cnty. Bd. of

Comm’rs, 973 F.3d 1022, 1027–28 (10th Cir. 2020).

Applying the law that was established at the time the

defendants acted, the court held that the qualified immunity

analysis “requires both an objective and a subjective

inquiry.” Id. at 1028. In a footnote, the majority addressed

Judge Bacharach’s separate opinion concurring in part and

dissenting in part and explicitly “endorse[d] Judge

Bacharach’s rejection of the argument that Kingsley . . .

requires us to conduct only an objective inquiry.” Id. at 1028

n.1. In the referenced discussion, Judge Bacharach

explained that, although the “subjective prong” of the

deliberate indifference test “has been altered for at least

some claims involving pretrial detainees,” the court had to

“apply the subjective prong as it was clearly established at

the time of [the plaintiff’s] detention.” Id. at 1038 n.2 (opin.

of Bacharach, J.); see also id. at 1049 (“Kingsley did not

clearly apply to pretrial detainees’ claims of inadequate

medical care, so the district court did not err in applying the

subjective prong for purposes of qualified immunity.”). The

62 SANDOVAL V. COUNTY OF SAN DIEGO

Tenth Circuit’s approach is thus also directly contrary to the

majority’s analysis here. See also Perry v. Durborow,

892 F.3d 1116, 1122 n.1 (10th Cir. 2018) (to the extent that

the governing standard was now “objective deliberate

indifference, this lower standard wasn’t clearly established

as of” the date of the incident in question and could not be

applied in analyzing qualified immunity).

Although the majority’s position is directly contrary to

that of the Third, Eighth, and Tenth Circuits, the majority

claims that its approach is supported by the decisions of

several other circuits. See Maj. Opin. at 32–34. That is

doubtful. Only two of these cases involved a claim of

deliberate indifference to the serious medical needs of a

pretrial detainee, and the court in both cases applied the

subjective test in addressing qualified immunity. Dyer v.

Houston, 964 F.3d 374, 383–84 (5th Cir. 2020) (holding that

confusion over the exact nature of the subjective element did

not absolve the district court of having to decide whether the

defendants were liable under the then-clearly established

standards); Hopper v. Plummer, 887 F.3d 744, 756–57 (6th

Cir. 2018) (declining to disturb district court’s denial of

qualified immunity in light of its “finding of a genuine issue

of material fact as to defendants’ ‘knowledge of a substantial

risk of serious harm’”).

The majority instead cites the portion of Hopper that

involved an excessive force claim, as well as two other

decisions involving such claims. Hopper, 887 F.3d at 755–

56; Miranda-Rivera v. Toledo-Davila, 813 F.3d 64 (1st Cir.

2016); Kingsley v. Hendrickson, 801 F.3d 828 (7th Cir.

2015) (decision on remand from the Supreme Court’s

Kingsley decision). The courts in all three of these cases

dismissed the notion that any previously applicable

subjective element of the excessive force test provided any

SANDOVAL V. COUNTY OF SAN DIEGO 63

basis for granting qualified immunity, and to that extent

those cases bear some arguable similarity to the majority’s

conclusion here. Hopper, 887 F.3d at 755; Miranda-Rivera,

813 F.3d at 73; Kingsley, 801 F.3d at 831. But there is a

critical difference between the role of the subjective element

in an excessive force claim (in which the officer

affirmatively applies force, see Kingsley, 576 U.S. at 395–

96) and a claim of deliberate indifference to serious medical

needs (in which the official fails to act). In excessive force

cases in which the objective component of the qualified

immunity inquiry is met—meaning that the officer has

applied an objective level of force that any reasonable officer

would know is excessive—there are likely to be few, if any,

cases in which the officer who is knowingly and

affirmatively applying that force could plausibly assert that

he did not simultaneously act with the requisite subjective

intent of “at least recklessness.” Kingsley v. Hendrickson,

744 F.3d 443, 453 (7th Cir. 2014) (describing the prior law

in the decision that was later reversed by the Supreme Court

in Kingsley). In other words, satisfying the objective

standard for qualified immunity in such excessive force

cases almost certainly means that the subjective element is

met as well. By contrast, where the gravamen of the

violation is a failure to act (as in the context of deliberate

indifference to serious medical needs), the objective

unreasonableness of a nurse’s failure to detect a serious

medical risk does not similarly lead to an inescapable

conclusion that the nurse must have actually subjectively

appreciated that risk. People can, and do, sometimes

subjectively overlook what they should obviously detect.

These three cases thus supply little support for the

majority’s sweeping rule that the qualified immunity inquiry

is exclusively objective and requires courts to affirmatively

and always disregard any subjective elements of the

64 SANDOVAL V. COUNTY OF SAN DIEGO

previously clearly established law. In all events, to the

extent that these cases could be read to endorse the

majority’s flawed analysis, then they are wrong as well. 3

* * *

Accordingly, each of the Nurses here is entitled to

qualified immunity unless Plaintiff presented sufficient

evidence to show (inter alia) that that Nurse was

subjectively “‘aware of facts from which the inference could

be drawn that a substantial risk of serious harm [to Sandoval]

exists,’” and that he or she actually “‘dr[e]w the inference.’”

Conn, 591 F.3d at 1096 (quoting Farmer, 511 U.S. at 837).

B

The district court correctly concluded that Plaintiff failed

to create a genuine dispute of material fact under the

applicable subjective standard as to Nurse Romeo de

Guzman, but it erred in finding that Harris and Llamado

were entitled to qualified immunity.

3

The majority opinion also misleadingly quotes, out of context, the

Supreme Court’s observation in Crawford-El v. Britton, 523 U.S. 574

(1998), that “evidence of improper motive is irrelevant on the issue of

qualified immunity.” Id. at 589 (quoted at Maj. Opin. at 31). Crawford-

El was merely referring to the now well-settled rule that an otherwise

valid “defense of qualified immunity may not be rebutted by evidence

that the defendant’s conduct was malicious or otherwise improperly

motivated.” Id. at 588. Crawford-El did not address the distinctive

question presented here concerning how to apply qualified immunity

principles in the context of a change in liability standards from subjective

to objective.

SANDOVAL V. COUNTY OF SAN DIEGO 65

1

The district court correctly held that Plaintiff had not

presented sufficient evidence to permit a reasonable jury to

find that de Guzman “was actually aware Sandoval had a

serious medical need.” As the district court noted, the

undisputed evidence confirms that “Sandoval did not advise

any prison official of his drug overdose condition”; on the

contrary, he “lied and denied his use of drugs to Nurse de

Guzman.” In arguing that de Guzman nonetheless actually

became subjectively aware of Sandoval’s acute

methamphetamine intoxication, Plaintiff places primary

weight on two statements in the police report by one of the

involved officers (Deputy Rodriguez): (1) de Guzman’s

statement, as recorded by Rodriguez, that Sandoval should

be sent to a “sobering tank”; and (2) Rodriguez’s own

observation that Sandoval “was shaking mildly” and

“appeared to be having withdrawal[] from drugs.” While I

agree with the majority that these statements in this

document should not have been held inadmissible, 4 neither

4

In opposing Defendants’ summary judgment motion below,

Plaintiff specifically argued that the police reports she submitted are not

hearsay under Federal Rule of Evidence 803(8). That statement was

sufficient to preserve this position, notwithstanding Plaintiff’s

subsequent failure to file any response to the evidentiary objections that

Defendants submitted with their reply, and the district court therefore

erred in concluding that Plaintiff forfeited her admissibility arguments

concerning those reports. We have explained that police reports are

admissible under Rule 803(8) as to the reporting officer’s own

observations, United States v. Pazsint, 703 F.2d 420, 424 (9th Cir. 1983),

and we have also explained that statements made to a government

official and recorded in an official report may also be admissible if they

are covered by a separate hearsay exception (or if they are not themselves

hearsay), see United States v. Morales, 720 F.3d 1194, 1202 (9th Cir.

2013). Under this framework, any statements of de Guzman that are

66 SANDOVAL V. COUNTY OF SAN DIEGO

of these statements creates a triable issue as to de Guzman’s

subjective awareness of Sandoval’s medical predicament.

As to the first statement, de Guzman’s suggestion that

Sandoval should be sent to a “sobering tank” does not

support a reasonable inference that de Guzman was

subjectively aware that Sandoval faced a serious medical

need. If anything, it shows the exact opposite. I agree with

Plaintiff that this comment supports an inference that de

Guzman was aware that Sandoval might be under the

influence of something, 5 but that is not enough to carry

Plaintiff’s burden of proof. Plaintiff had to show that de

Guzman was subjectively aware that Sandoval was under the

influence in a manner that presented a serious medical need.

De Guzman’s “sobering tank” comment is insufficient to

permit a jury to draw that inference. On the contrary, the

suggestion that Sandoval should be removed from the

current cell adjacent to the nurses’ station (“Medical

Observation Cell #1” or “MOC1”) and sent to a sobering cell

negates any suggestion that de Guzman actually drew the

inference that Sandoval faced a serious medical need.

Because de Guzman knew that an inmate in a sobering cell

would only be checked every four hours, his suggestion that

Sandoval could be sent there reflects, at most, a subjective

recorded in Rodriguez’s report would be admissible against de Guzman

as a non-hearsay opposing-party statement. See FED. R. EVID. 801(d)(2).

5

That inference is further supported by de Guzman’s comment,

during his deposition, that he may have overheard an officer say

“[s]omething like—‘I just found out that [Sandoval’s] under the

influence.’”

SANDOVAL V. COUNTY OF SAN DIEGO 67

belief that Sandoval was under the influence in a manner that

did not present a substantial risk of serious harm. 6

Plaintiff argues that, in light of an additional statement

in Rodriguez’s report, a reasonable jury could find that de

Guzman was aware that Sandoval’s condition was serious.

Specifically, Plaintiff notes that, in his report, Rodriguez

stated that “Sandoval appeared to be having withdrawal[]

from drugs.” But as the district court noted, Rodriguez’s

report does not say that Rodriguez ever told de Guzman that

he (Rodriguez) thought Sandoval was experiencing

withdrawal symptoms—much less that Sandoval was

experiencing symptoms that suggested a substantial risk of

serious harm.

None of the other evidence cited by Plaintiff would

permit a reasonable jury to find that de Guzman became

subjectively aware that Sandoval’s situation presented a

substantial risk of serious harm. Plaintiff points out that, in

response to de Guzman’s suggestion that Sandoval should

be moved to a sobering cell, Deputy Wilkinson and Corporal

Powell relayed back to de Guzman their view that Sandoval

should stay in MOC1, but Plaintiff does not point to any

evidence that Wilkinson or Powell ever told de Guzman that

they thought that Sandoval faced any specific, much less

serious, medical risk. Plaintiff cites only Rodriguez’s report,

but that report merely states that Wilkinson and Powell

6

The majority surmises that perhaps de Guzman knew that Sandoval

had a serious medical need but nonetheless wanted to send him to a

sobering cell because de Guzman “did not want to deal with the hassle

of providing” the necessary care. See Maj. Opin. at 42 n.16. No record

evidence supports the majority’s speculation, which provides no basis

for denying summary judgment here. See Nelson v. Pima Cmty. Coll.,

83 F.3d 1075, 1081–82 (9th Cir. 1996) (“mere allegation and speculation

do not create a factual dispute for purposes of summary judgment”).

68 SANDOVAL V. COUNTY OF SAN DIEGO

“determined it would be better if Sandoval remained in [his]

observation cell”; it does not state that they provided any

details as to why they had that view (much less whether they

had determined that Sandoval faced any sort of serious

medical need).

Because Plaintiff failed to present sufficient evidence to

show that de Guzman was subjectively aware of Sandoval’s

serious medical needs, de Guzman was entitled to qualified

immunity. I therefore dissent from the majority’s reversal of

the district court’s grant of summary judgment to de

Guzman.

2

Under the correct qualified immunity standards, I

conclude that Nurse Dana Harris was not entitled to

summary judgment.

Plaintiff has presented ample evidence to support her

theory that, under an objective standard, Harris was grossly

incompetent because she did not understand that in San

Diego, the Emergency Medical Technicians (“EMTs”) that

she had initially summoned could not perform the Advanced

Cardiac Life Support (“ACLS”) that Sandoval needed. But

as explained earlier, the qualified immunity inquiry also has

a subjective component and requires Plaintiff to present

sufficient evidence to establish that Harris was subjectively

aware that her actions were creating or exacerbating a

substantial risk of serious harm. I agree with Plaintiff that

the evidence in the summary judgment record is sufficient to

permit a jury to find that Harris was subjectively aware that

Sandoval was having a seizure and that the seizure posed a

substantial risk of serious harm, but that is not enough to

show that Harris acted with deliberate indifference. Rather,

Plaintiff had to show that Harris was subjectively aware that

SANDOVAL V. COUNTY OF SAN DIEGO 69

her response to the situation was inadequate and placed

Sandoval at a substantial risk of serious harm. But Plaintiff’s

above-described theory that Harris was “[t]oo

[i]ncompetent” to subjectively know that EMTs could not

perform ACLS is affirmatively inconsistent with the view

that Harris subjectively drew the inference that her actions

were placing Sandoval at a substantial risk of serious harm.

Accordingly, under this view of the evidence, the very fact

of Harris’s subjective obliviousness would entitle her to

qualified immunity.

Nonetheless, I believe that the district court erred in

granting summary judgment to Harris. In my view, the

sharply conflicting evidence in the summary judgment

record is sufficient to permit the alternative inference that

Harris did subjectively know that she needed to call 911 for

paramedics (who could perform ACLS) and that EMTs

would be inadequate, but that for whatever reason (e.g.,

panic, stubbornness, foolishness, etc.), she refused to do so.

Although Harris insisted that no one told her to call 911 or

paramedics, Plaintiff presented competing evidence that:

(1) Deputy Matthew Andrade (who had himself been trained

as an EMT) told Harris two or three times that paramedics

should be called; (2) very early into the emergency, Nurse

Llamado concluded that “9-1-1 should be called,” and she

said out loud to Harris and the others multiple times that

Sandoval “has to go out 9-1-1”; (3) after consulting with the

supervising nurse (Shirley Bautista), Llamado told Harris

that “Shirley said he has to go now 9-1-1”; and (4) Llamado

confirmed that calling paramedics was “[s]tandard nursing

protocol” at the jail in the case of a prolonged seizure. Based

on this evidence, a rational jury could readily conclude that

Harris well knew that she needed to call 911 and

inexplicably failed to do so. See Farmer, 511 U.S. at 842

(“Whether a[n] . . . official had the requisite knowledge of a

70 SANDOVAL V. COUNTY OF SAN DIEGO

substantial risk is a question of fact subject to demonstration

in the usual ways, including inference from circumstantial

evidence.”). And, based on the same evidence, a jury could

reasonably conclude that the resulting deprivation was

“objectively . . . sufficiently serious,” thereby satisfying the

objective component of then-existing law concerning

deliberate indifference to serious medical needs. Estate of

Ford, 301 F.3d at 1049.

Moreover, I would further conclude that, under then-

existing law, it was clearly established that Harris’s conduct

violated Sandoval’s constitutional rights. Long before this

incident, the Supreme Court had held that, to show deliberate

indifference to a serious medical need, “it is enough that the

official acted or failed to act despite his knowledge of a

substantial risk of serious harm.” Farmer, 511 U.S. at 842.

Given that the evidence here amply supports the view that

Harris subjectively knew that paramedics needed to be called

to avoid objectively serious harm to Sandoval, and given that

Harris’s behavior was so obviously objectively

unreasonable, it follows that, “at the time of [Harris’s]

conduct, the law was ‘sufficiently clear’ that every

‘reasonable official would understand that what [s]he is

doing’ is unlawful.” Wesby, 138 S. Ct. at 589 (quoting

Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)) (emphasis

added). Harris therefore violated clearly established law at

the time she acted. See id.

The only remaining question is whether, under existing

law, Harris deprived Sandoval of a constitutional right.

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

the majority that Plaintiff presented sufficient evidence to

permit a jury to find that Harris violated Sandoval’s

constitutional rights under the now-governing objective test

set forth in Gordon. See Maj. Opin. at 39–40.

SANDOVAL V. COUNTY OF SAN DIEGO 71

For the foregoing reasons, I concur in the judgment

reversing the grant of summary judgment to Harris.

3

For substantially similar reasons, I concur in the

judgment reversing the district court’s grant of summary

judgment to Nurse Maria Llamado. Indeed, Plaintiff’s

evidence as to Llamado is, if anything, even stronger than as

to Harris. Llamado’s own deposition testimony confirms

that she was subjectively aware that Harris was wrong in

summoning only EMTs and not paramedics. Llamado also

admitted at her deposition that she should have called

paramedics herself, stating that she had “learned [her]

lesson.” Under the facts that could reasonably be found by

the jury on this record, Llamado violated Sandoval’s clearly

established rights under then-existing law, and her actions

also violated Sandoval’s rights under current law. Summary

judgment for Llamado was therefore improper.

III

In my view, the district court correctly granted summary

judgment to the county on Plaintiff’s § 1983 claims against

it, and I therefore dissent from that aspect of the majority’s

judgment.

Under Monell v. Department of Social Services, 436 U.S.

658 (1978), a local government entity “may not be held

liable under 42 U.S.C. § 1983, unless a policy, practice, or

custom of the entity can be shown to be a moving force

behind a violation of constitutional rights.” Dougherty v.

City of Covina, 654 F.3d 892, 900 (9th Cir. 2011). To

establish such liability, Plaintiff “must prove (1) that

[Sandoval] possessed a constitutional right of which [he]

was deprived; (2) that the municipality had a policy; (3) that

72 SANDOVAL V. COUNTY OF SAN DIEGO

this policy amounts to deliberate indifference to

[Sandoval’s] constitutional right; and, (4) that the policy is

the moving force behind the constitutional violation.” Id.

(citation and internal quotation marks omitted) (emphasis

added). Plaintiff contends that the county was deliberately

indifferent in having a policy or practice of using MOC1 as

a “mixed use” cell “for both correctional and medical

purposes” without imposing “appropriate safeguards,” such

as “routine medical monitoring, tracking logs and proper . . .

procedures” for transmitting information to incoming nurses

at the end of a given nurse’s shift. On the record presented

at summary judgment, this contention fails as a matter of

law, and summary judgment was properly granted.

Negligence alone is insufficient to plead a constitutional

tort, see County of Sacramento v. Lewis, 523 U.S. 833, 848–

49 (1998), and Plaintiff concedes that she must go further

and show that the policy, practice, or custom she challenges

“amounts to deliberate indifference to the plaintiff’s

constitutional right,” Dougherty, 654 F.3d at 900 (emphasis

added). The applicable “deliberate indifference” standard

for Monell claims, however, differs from the above-

discussed standard that applied to the individual Defendants

under then-existing law for qualified immunity purposes:

whereas the latter applies both an objective and a subjective

standard, the former is purely objective. See Farmer,

511 U.S. at 840–41; Castro, 833 F.3d at 1076. In the context

of an analogous claim about inadequate monitoring of jail

cells, we held in Castro that the objective deliberate

indifference standard for municipal liability under § 1983

requires a showing 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.’” Id.

at 1076 (citation omitted); see also Board of Cnty. Comm’rs

SANDOVAL V. COUNTY OF SAN DIEGO 73

v. Brown, 520 U.S. 397, 410 (1997) (“‘[D]eliberate

indifference’ is a stringent standard of fault, requiring proof

that a municipal actor disregarded a known or obvious

consequence of his action.”).

Plaintiff failed to present sufficient evidence to satisfy

this demanding standard, and the county was therefore

entitled to summary judgment. Plaintiff’s evidence of prior

confusion concerning why particular inmates were placed in

MOC1 may well support a claim that the county was

negligent, 7 but that evidence does not come close to showing

that the county had “‘actual or constructive notice’” that this

practice was “‘substantially certain’” to result in an

unconstitutional disregard of a serious medical need.

Castro, 833 F.3d at 1076 (citation omitted) (emphasis

altered). The fact that the county changed its practices

concerning MOC1 after this incident—even if admissible for

purposes going beyond merely proving that a policy,

practice, or custom existed, but see Conn, 591 F.3d at 1104

n.7 (applying Fed. R. Evid. 407 to cabin the use of post-event

practice)—does not establish that the county had the pre-

incident actual or constructive notice Castro requires. I

therefore disagree with the majority’s finding that a

reasonable jury could infer that the county had actual or

constructive knowledge that its practices in regard to the

7

The Plaintiff opening brief cites as evidence of confusion a

comment by one of her experts that the county’s practice “created a

constant state of chaos and lack of communication between the deputies

and the nursing staff.” The expert’s lengthy report, however, cites

nothing in the record to support this particular remark. Nurse Llamado

and Shirley Bautista, the charge nurse on the night in question, also

testified that the mixed-used nature of MOC1 was confusing to nursing

staff. However, this evidence of confusion does not create a triable issue

under the Castro standard.

74 SANDOVAL V. COUNTY OF SAN DIEGO

MOC1 cell were substantially certain to result in an

unconstitutional disregard of a serious medical need.

Plaintiff contends that the constructive notice standard

should not apply because here the county’s “policy itself

directs the unconstitutional action.” Plaintiff, however, has

presented no evidence that the policy itself is

unconstitutional. In particular, to the extent that Plaintiff

contends that the county had an unconstitutional policy,

practice, or custom to affirmatively and completely ignore

persons placed in MOC1, there is no evidence that the

county had such a policy: it is undisputed that the MOC1 cell

is visible to personnel at the nurses’ station; and, indeed, it

is undisputed that Sandoval’s eventual seizure and collapse

onto the floor was immediately detected.

For the foregoing reasons, I concur in the judgment in

part and respectfully dissent in part.