Patrick Russell v. Jocelyn Lumitap

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PATRICK RUSSELL, individually, and No. 18-55831

as Personal Representative of the

Estate of Patrick John Russell; D.C. No.

LYNNE RUSSELL, individually, and 8:17-cv-00125-

as Personal Representative of the JLS-DFM

Estate of Patrick John Russell,

Plaintiffs-Appellees,

OPINION

v.

JOCELYN LUMITAP, individually;

PATTI TROUT, individually; MARIA

TEOFILO, individually; THOMAS LE,

individually,

Defendants-Appellants.

Appeal from the United States District Court

for the Central District of California

Josephine L. Staton, District Judge, Presiding

2 RUSSELL V. LUMITAP

Argued and Submitted October 23, 2019

Submission Withdrawn August 19, 2020

Resubmitted April 6, 2022*

Pasadena, California

Filed April 13, 2022

Before: Andrew J. Kleinfeld, Consuelo M. Callahan, and

Ryan D. Nelson, Circuit Judges.

Opinion by Judge Kleinfeld

SUMMARY**

Prisoner Civil Rights

The panel affirmed in part and reversed in part the district

court’s denial, on summary judgment, of qualified immunity

to medical providers at Orange County Jail in an action

brought pursuant to 42 U.S.C. § 1983 alleging that defendants

*

While this panel was considering this case, another panel with

priority issued its decision in Sandoval v. Cnty. of San Diego, 985 F.3d

657 (9th Cir. 2021). The Supreme Court denied certiorari in Sandoval on

December 13, 2021, and we decided Hyde v. City of Willcox, 23 F.4th 863

(9th Cir. 2022), also relevant to this case, on January 6, 2022. Counsel

were ordered to brief the effects of those two cases on this one on January

25, 2022, and the briefs were filed on February 24 and 25, 2022. We

accordingly revised our opinion as necessary and resubmitted this case on

April 6, 2022.

**

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

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

RUSSELL V. LUMITAP 3

were deliberately indifferent to the medical needs of Patrick

John Russell, a pretrial detainee who died from a ruptured

aortic dissection.

The panel first held that it had jurisdiction to review the

denial of qualified immunity at the summary judgment stage

because defendants did not challenge the determination that

there were genuine issues over material facts, but instead

argued that they were entitled to qualified immunity because

they did not violate Russell’s clearly established

constitutional rights on the record taken in the light most

favorable to Russell.

Applying Sandoval v. County of San Diego, 985 F.3d 657

(9th Cir. 2021), the panel stated that to defeat qualified

immunity plaintiffs must show that, given the available case

law at the time, a reasonable official, knowing what Dr. Le,

Nurse Teofilo, Nurse Trout, and Nurse Lumitap knew, would

have understood that their actions presented such a substantial

risk of harm to Russell that the failure to act was

unconstitutional. Their actual subjective appreciation of the

risk was not an element of the established-law inquiry.

The panel held that under the circumstances, taking the

facts most favorably to the plaintiffs, Dr. Le, the on-call

physician at the time, could not have reasonably believed

based on the clearly established law as it stood then that he

could provide constitutionally adequate care without even

examining a patient with Russell’s symptoms who had not

responded to a dose of nitroglycerin. Therefore, the district

court was correct in denying summary judgment on qualified

immunity to Dr. Le.

4 RUSSELL V. LUMITAP

The panel held that Nurse Teofilo had access to facts from

which an inference could be drawn that Russell was at serious

risk. Yet she did not call the paramedics, nor did she call

Dr. Le to ask whether Russell’s worsening symptoms

required anything more than the Motrin that had previously

been prescribed. The district court was correct in denying

summary judgment on qualified immunity to Nurse Teofilo.

A reasonable jury could conclude that she met the standard

for deliberate indifference.

The panel held that Nurse Trout was entitled to summary

judgment on qualified immunity. A jury could not, on the

facts pleaded, reasonably conclude that Nurse Trout was

deliberately indifferent. Though perhaps she should have

called the paramedics, her having promptly called the

physician on call and followed his instructions could not be

categorized as deliberate indifference.

The panel held that Nurse Lumitap was not entitled to

qualified immunity. Drawing all inferences in plaintiff’s

favor, a reasonable person in Nurse Lumitap’s position would

have inferred that Russell was at serious risk if not

hospitalized.

COUNSEL

S. Frank Harrell (argued), Lynberg & Watkins APC, Orange,

California, for Defendants-Appellants.

Dale K. Galipo (argued) and Marcel F. Sincich, Law Offices

of Dale K. Galipo, Woodland Hills, California; Cameron

Sehat, The Sehat Law Firm PLC, Irvine, California; for

Plaintiffs-Appellees.

RUSSELL V. LUMITAP 5

OPINION

KLEINFELD, Circuit Judge:

I. Factual Background

On January 8, 2016, Patrick John Russell was arrested for

a probation violation and booked at the Orange County Jail.1

During an initial medical screening, he indicated that he did

not have any of the listed chronic conditions or any other

medical conditions that he wished to disclose.

At around 10:35 p.m. on January 23, 2016, Russell was

seen by Nurse Maria Teofilo. He was hyperventilating,

vomiting, and dry heaving. He told her that he could not

breathe and that he was having an anxiety attack. Nurse

Teofilo gave him Pepto Bismol (or its generic equivalent,

bismuth subsalicylate), but did not notify the doctor on duty

or summon paramedics.

Later that night, at 12:03 a.m. on January 24, 2016,

Russell returned to Nurse Teofilo, now complaining of chest

pain. Russell told her that he believed the pain was muscular

because he had done thirty push-ups the day before. But he

also told her that he was nervous, anxious, and unable to calm

down. He was in distress and unable to express his needs

clearly. Nurse Teofilo advised him on stretching and referred

him to the Intake Release Center for a mental-health

screening.

1

As explained below, at this stage we evaluate the record in the light

most favorable to the plaintiff. Nicholson v. City of Los Angeles, 935 F.3d

685, 690 (9th Cir. 2019). Therefore, where any facts are disputed, we

accept the version most favorable to Russell.

6 RUSSELL V. LUMITAP

At around 1:08 a.m., Russell arrived by bus at the Intake

Release Center and was seen there by Nurse Patti Trout. He

complained to her of continued chest pain, pointing to the

center of his chest and lower portion of his throat, and told

her that the pain was now radiating to his arm and jaw. He

was short of breath and his hands and feet were numb. He

also told her that he had vomited on the bus on the way there.

In response, Nurse Trout gave him a dose of nitroglycerin.

Despite the nitroglycerin, Russell’s severe chest pain

persisted—five minutes after the dose, Russell told Nurse

Trout that the severity of his chest pain was now between 8

and 9 out of 10. He was anxiously wringing his hands and

breathing rapidly, and he vomited again. Nurse Trout

consulted with the on-call physician, Dr. Thomas Le, over the

phone, relaying Russell’s symptoms and informing him that

a dose of nitroglycerin had been ineffective.2 According to

2

There is some inconsistency as to what information Dr. Le was

given when Nurse Trout called. In her contemporaneous notes, Nurse

Trout stated, “5 MIN AFTER NTG WAS GIVEN, IM STATES PAIN IN

CHEST IS BETWEEN 8 AND 9, IM THEN VOMITED INTO TRASH

CAN, WATERY, CLEAR. HR ELEVATED TO 88. POX 100%. SKIN

W/D. COLOR PINK. APPEARS ANXIOUS, WRINGING HANDS

AND BREATHING RAPIDLY. RR 26.” Directly below this description,

she noted that she “NOTIFIED DR. LE OF ABOVE.” In Nurse Trout’s

declaration made on January 3, 2018, she stated that she “reported to

Dr. Le all of the symptoms Russell had been experiencing (complaints of

anxiety and muscle pain from doing push-ups), Russell’s (stable) vital

signs, and that Russell told [her] his pain increased when I applied manual

pressure to his chest and when he took deep breaths.” In Dr. Le’s

declaration, also made on January 3, 2018, he stated that “Nurse [T]rout

reported to [him] all of the symptoms Russell had been experiencing

(complaints of anxiety and muscle pain from doing sit-ups), Russell’s

(stable) vital signs, and that Russell told Nurse Trout that his pain

increased when she applied manual pressure to his chest and when he took

deep breaths.” To the extent that Nurse Trout and Dr. Le’s

RUSSELL V. LUMITAP 7

Orange County Correctional Health Services’ Standardized

Procedures for Registered Nurses that were in place at the

time, the appropriate treatment for acute angina pectoris—

defined as pressure in the chest or precordial discomfort—is

to begin administering nitroglycerin and to then call for

paramedics if symptoms “do not subside after the first dose.”

This is also the first step in the Standardized Procedures for

treating cardiac arrest.

Nevertheless, although Nurse Trout had considered

calling paramedics, Dr. Le ordered that Russell be

administered Motrin (i.e., ibuprofen, a nonsteroidal anti-

inflammatory drug) and be referred for a mental health

evaluation. Though Dr. Le was only a fifteen-minute drive

away, he never physically examined Russell at any time.

At around 1:30 a.m., pursuant to Dr. Le’s orders, Russell

received a mental-health screening from a non-party nurse.

He told the nurse that he was anxious about his potential

prison sentence, that he had never had prior mental health

problems, and that he had a history of daily THC use and

alcohol abuse. The nurse instructed him on breathing and

relaxation exercises and told him how to contact mental

health for further assistance if necessary.

At around 2:04 a.m., Russell returned to the medical ward

complaining to Nurse Teofilo of “flu-like” symptoms. She

declarations—by not referencing any dose of nitroglycerin—conflict with

Nurse Trout’s contemporaneous notes, we are required at this stage to

resolve that factual dispute in favor of Russell. Nicholson, 935 F.3d

at 690. Therefore, we assume for purposes of this decision that Nurse

Trout informed Dr. Le that she had administered a dose of nitroglycerin

to Russell and that this dose did not relieve Russell’s pain.

8 RUSSELL V. LUMITAP

instructed Russell on how to communicate his symptoms to

medical staff and told him to return if necessary.

Around 5:32 a.m., Russell returned to the medical ward

complaining of severe chest pain. The severity of his pain

was now a 10 out of 10, and he was hyperventilating. The

First Amended Complaint states that at this point he was

tachycardic (had a rapid heartbeat). Russell told Nurse

Teofilo that he had been administered a dose of nitroglycerin

but it had not alleviated his pain. Nurse Teofilo knew that,

“per policy,” a patient who has not responded to a dose of

nitroglycerin must be hospitalized. She therefore called

Nurse Trout to ask why Russell had not been hospitalized in

accordance with the Standardized Procedures. Nurse Trout

told her that Dr. Le had simply recommended Motrin and a

mental health screening. Nurse Teofilo considered whether

she should hospitalize Russell, but ultimately decided not to

send for paramedics after speaking with Nurse Trout. Nurse

Teofilo administered a dose of Motrin and Russell remained

in the dispensary for observation.

Around 7:00 a.m., Russell complained of continued chest

pain to Nurse Jocelyn Lumitap. He was now displaying signs

of physical distress. He was sitting hunched over with his

head down and supporting his chest with his hand. He was

worried about his pain and wanted to see the doctor. Instead,

Lumitap instructed Russell on relaxation techniques, gave

him an analgesic heat balm for his chest pain, and told him he

would be checked again after lunch.

At 10:43 a.m., Nurse Lumitap consulted with a non-party

nurse. This non-party nurse advised her to keep on the same

RUSSELL V. LUMITAP 9

course of treatment with Russell.3 She reassured Nurse

Lumitap that Russell would be okay. Nurse Lumitap

speculated that the basis for this reassurance was Russell’s

vital signs and the fact that Dr. Le had already given his

recommendation over six hours earlier.

Around 11:08 a.m., Russell returned to the medical ward

complaining to Nurse Lumitap of deep throbbing pain in the

middle of his chest and throat, with his pain still at a 10 out

of 10. He denied having a heart condition, but said he had

been told he had high blood pressure. He had “flu-like”

symptoms, was hyperventilating, and bent over when he

walked. Russell vomited in front of Nurse Lumitap, and

stated that he felt a bit better but that his chest was still in

pain. He sat on the floor for a few minutes next to a trash bin

and then managed to sit on the chair. He remained in the

ward resting on a patient table. After a brief rest, Russell sat

up around 11:40 a.m. to vomit. He lay down on the floor at

first, but then was able to get back up onto the table.

Finally, at around 12:20 p.m., Nurse Lumitap saw Russell

breathing hard and sitting in an unresponsive state. Russell

was suffering from “agonal”4 breathing, his eyes were

crossed, his skin was pale, he was drooling and sweating

profusely, and he was tachycardic. At this point, Nurse

3

Nurse Lumitap posted the progress note describing her 10:43 a.m.

discussion with another nurse at 3:39 p.m., hours after Russell had died.

It is the last substantive progress note in his chart, and the only progress

note marked as a “LATE ENTRY.”

4

“Agonal” means “Pertaining to the period immediately preceding

death; usually a matter of minutes but occasionally indicating a period of

several hours.” Agonal, Blakiston’s Gould Medical Dictionary (3d ed.

1972).

10 RUSSELL V. LUMITAP

Lumitap called paramedics and helped begin CPR, administer

oxygen, and initiate the Automated External Defibrillator.

Paramedics arrived around 12:28 p.m. and Russell was

transferred to a hospital where he soon died. An autopsy

revealed that he died of hemothorax and hemopericardium,

which means that there was a collection of blood between his

chest wall and his lungs, as well as in the membrane

surrounding his heart. According to the autopsy, these

injuries were caused by an aortic dissection, i.e., a rupture in

a part of Russel’s aorta, the artery that carries blood from the

heart to the rest of the body.

Russell’s parents sued Dr. Le, Nurse Teofilo, Nurse

Trout, and Nurse Lumitap (“the Medical Team”) on behalf of

Russell’s estate and individually for (among other things)

violating his constitutional rights under § 1983 on a theory of

deliberate indifference to his serious medical needs. The

district court below denied the Medical Team’s motion for

summary judgment on qualified immunity and the Medical

Team filed this interlocutory appeal on that issue.

Obviously, on this record as read most favorably to him,

Russell received poor medical care. Dr. Le should have

driven over to see him. The nurses should have made

repeated phone calls to Dr. Le as Russell’s symptoms

worsened. Russell should have been sent to the hospital.

Had all this been done, on this record, he might have lived.

But this is not a medical malpractice case. In a § 1983 case,

we must determine whether the level of medical care was

unconstitutional, not whether it was so substandard that it

may have cost Russell his life.

RUSSELL V. LUMITAP 11

II. The scope of our review

We have jurisdiction to review the denial of qualified

immunity at the summary judgment stage under 21 U.S.C.

§ 1291,5 and we do so de novo.6 However, the scope of

review over such an interlocutory appeal is “circumscribed”

because the Court may not “consider eviden[tiary]

sufficiency, i.e., which facts a party may, or may not, be able

to prove at trial.”7 Therefore, the relevant question is

“whether the defendant[s] would be entitled to qualified

immunity as a matter of law, assuming all factual disputes are

resolved, and all reasonable inferences are drawn, in

plaintiff’s favor.”8

5

Nicholson, 935 F.3d at 690.

6

Roybal v. Toppenish Sch. Dist., 871 F.3d 927, 931 (9th Cir. 2017).

We also GRANT the Medical Team’s motion to strike the Supplemental

Excerpts of Record except for page 64 and the corresponding portions of

Russell’s Answering Brief. The district court declined to receive the

challenged documents because the matter had already been briefed,

argued, and submitted for decision, and because the statements by

Russell’s medical experts did not amount to new evidence. They were not

before the district court when it issued its order denying qualified

immunity to the Medical Team and we therefore do not consider them

here. Kirshner v. Uniden Corp. of Am., 842 F.2d 1074, 1077–78 (9th Cir.

1988); Panaview Door & Window Co. v. Reynolds Metal Co., 255 F.2d

920, 922 (9th Cir. 1958).

7

Nicholson, 935 F.3d at 690 (alteration in original) (internal quotation

marks omitted) (quoting George v. Morris, 736 F.3d 829, 834 (9th Cir.

2013)).

8

Id. (alteration in original) (internal quotation marks omitted)

(quoting Morris, 736 F.3d at 836).

12 RUSSELL V. LUMITAP

Russell argues that this Court lacks jurisdiction over the

Medical Team’s appeal because the district court’s denial of

summary judgment was based on a determination that the

evidence had “two susceptible interpretations, thus it is for a

jury to decide whether Appellants acted with deliberate

indifference.” But in the context of this interlocutory appeal,

the Supreme Court has distinguished between “an appealed

order’s reviewable determination (that a given set of facts

violates clearly established law) from its unreviewable

determination (that an issue of fact is ‘genuine’).”9 Here, the

Medical Team does not challenge the determination that there

are genuine disputes over material facts, but instead argues

that they are nevertheless entitled to qualified immunity

because they did not violate Russell’s clearly established

constitutional rights on the record taken in the light most

favorable to Russell. We do have jurisdiction to decide an

“abstract issue of law,”10 such as whether—assuming all

factual disputes resolved and all reasonable inferences drawn

in a plaintiff’s favor11—the defendants are entitled to

qualified immunity. Therefore, we have jurisdiction to decide

this appeal.12

III. Discussion

Under 42 U.S.C. § 1983, a private right of action exists

against anyone who, “under color of” state law, causes a

9

Johnson v. Jones, 515 U.S. 304, 319 (1995).

10

Behrens v. Pelletier, 516 U.S. 299, 313 (1996).

11

Nicholson, 935 F.3d at 690.

12

Pauluk v. Savage, 836 F.3d 1117, 1121 (9th Cir. 2016).

RUSSELL V. LUMITAP 13

person to be subjected “to the deprivation of any rights,

privileges, or immunities secured by the Constitution and

laws . . . .” However, state officers are entitled to qualified

immunity from a § 1983 suit unless “(1) they violated a

federal statutory or constitutional right, and (2) the

unlawfulness of their conduct was ‘clearly established at the

time.’”13

“[T]he qualified immunity inquiry is separate from the

constitutional inquiry, and courts must undertake the

qualified immunity analysis separately.”14 We review de

novo,15 so we undertake the qualified immunity inquiry

below.

A. Defining “clearly established” law

The Supreme Court has admonished us “not to define

clearly established law at a high level of generality.”16 While

there need not exist “a case directly on point for a right to be

clearly established, existing precedent must have placed the

. . . constitutional question beyond debate.”17 “The precedent

13

District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (quoting

Reichle v. Howards, 566 U.S. 658, 664 (2012)).

14

Estate of Ford v. Ramirez-Palmer, 301 F.3d 1043, 1053 (9th Cir.

2002).

15

Roybal, 871 F.3d at 931.

16

Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (internal quotation

marks omitted) (quoting City & Cnty. of San Francisco v. Sheehan,

575 U.S. 600, 613 (2015)).

17

Id. (internal quotation marks omitted) (quoting White v. Pauly,

137 S. Ct. 548, 551 (2017)).

14 RUSSELL V. LUMITAP

must be “‘controlling’—from the Ninth Circuit or the

Supreme Court—or otherwise be embraced by a ‘consensus’

of courts outside the relevant jurisdiction.”18 However, cases

decided after the alleged constitutional violation cannot create

clearly established law for purposes of this prong because

reasonable officers are “not required to foresee judicial

decisions that do not yet exist in instances where the

[constitutional] requirements . . . are far from obvious.”19

“That is not to say that an official action is protected by

qualified immunity unless the very action in question has

previously been held unlawful.”20 It is not necessary to have

a case involving a heart attack, a case involving appendicitis,

or a case involving a bowel obstruction for a § 1983 claim

based on one of those conditions to survive qualified

immunity. Instead, a “clearly established right is one that is

sufficiently clear that every reasonable official would have

understood that what he is doing violates that right.”21

“[G]eneral statements of the law are not inherently incapable

of giving fair and clear warning to officers.”22 “[T]here can

be the rare obvious case, where the unlawfulness of the

18

Martinez v. City of Clovis, 943 F.3d 1260, 1275 (9th Cir. 2019)

(internal quotation marks omitted) (quoting Sharp v. Cnty. of Orange,

871 F.3d 901, 911 (9th Cir. 2017)).

19

Kisela, 138 S. Ct. at 1154.

20

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

21

Horton by Horton v. City of Santa Maria, 915 F.3d 592, 599 (9th

Cir. 2019) (internal quotation marks omitted) (quoting Isayeva v.

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

22

Kisela, 138 S. Ct. at 1153 (internal quotation marks omitted)

(quoting White, 137 S. Ct. at 552).

RUSSELL V. LUMITAP 15

officer’s conduct is sufficiently clear even though existing

precedent does not address similar concerns.”23

B. The government’s obligation to provide pretrial

detainees with adequate medical care

In 1976, the Supreme Court first recognized “the

government’s obligation to provide medical care for those

whom it is punishing by incarceration.”24 On that reasoning,

it held that “deliberate indifference to serious medical needs

of prisoners” violates the Eighth Amendment’s prohibition on

cruel and unusual punishment.25 We concluded that the same

standard should also apply to such claims brought by pretrial

detainees, because even though those claims “arise under the

due process clause [of the Fourteenth Amendment], the

eighth amendment 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.”26 At the time of Russell’s death, our decision in

Clouthier v. County of Contra Costa27 provided the standard

according to which “all conditions of confinement claims,

23

City of Escondido v. Emmons, 139 S. Ct. 500, 504 (2019) (quoting

Wesby, 138 S. Ct. at 590).

24

Estelle v. Gamble, 429 U.S. 97, 103 (1976).

25

Id. at 104.

26

Carnell v. Grimm, 74 F.3d 977, 979 (9th Cir. 1996) (emphasis and

alterations in original) (internal quotation marks omitted) (quoting Jones

v. Johnson, 781 F.2d 769, 771 (9th Cir. 1986)).

27

591 F.3d 1232 (9th Cir. 2010), overruled by Castro v. Cnty. of Los

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

16 RUSSELL V. LUMITAP

including claims for inadequate medical care, were analyzed

. . . .”28 Under Clouthier, the deliberate-indifference analysis

turned on two separate issues: “(1) whether [the plaintiff] was

confined under conditions posing a ‘substantial risk of serious

harm’ and (2) whether the officers were deliberately

indifferent to that risk.”29

However, the standard governing claims for inadequate

medical care has changed since Russell’s death. After our

decision in Clouthier, the Supreme Court cautioned in

Kingsley v. Hendrickson30 that claims brought by pretrial

detainees under the Fourteenth Amendment should not

necessarily be evaluated under the same standard as claims

brought by convicted prisoners under the Eighth

Amendment.31 Kingsley addressed a claim brought by a

pretrial detainee that jail officers had used excessive force

against him.32 The Court held that a defendant bringing such

a claim need not show subjective deliberate indifference; he

need only demonstrate “that the force purposely or knowingly

used against him was objectively unreasonable.”33

28

Gordon v. Cnty. of Orange, 888 F.3d 1118, 1122 (9th Cir. 2018).

29

591 F.3d at 1244 (quoting Lolli v. Cnty. of Orange, 351 F.3d 410,

420 (9th Cir. 2003)).

30

576 U.S. 389 (2015).

31

Id. at 400–01.

32

Id. at 391.

33

Id. at 397.

RUSSELL V. LUMITAP 17

In Gordon v. County of Orange, we extended the Supreme

Court’s reasoning in Kingsley to claims for inadequate

medical care brought by pretrial detainees.34 Under Gordon,

a pretrial detainee who brings an inadequate medical care

claim must show that:

(i) the defendant made an intentional decision

with respect to the conditions under which the

plaintiff was confined;

(ii) those conditions put the plaintiff at

substantial risk of suffering serious harm;

(iii) 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

(iv) by not taking such measures, the

defendant caused the plaintiff's injuries.35

Thus the subjective second prong of Clouthier has been

replaced by an objective standard: A defendant can be liable

even if he did not actually draw the inference that the plaintiff

was at a substantial risk of suffering serious harm, so long as

a reasonable official in his circumstances would have drawn

that inference. Under this objective reasonableness standard,

34

888 F.3d 1118, 1124–25 (9th Cir. 2018).

35

Id. at 1125.

18 RUSSELL V. LUMITAP

a plaintiff must “prove more than negligence but less than

subjective intent—something akin to reckless disregard.”36

C. Substantial risk of serious harm

Gordon did not revise the “substantial risk of serious

harm” prong from Clouthier, and the law at the time of

Russell’s death clearly established that Russell’s conditions

put him at a substantial risk of serious harm. In the

inadequate-medical-care context, the “substantial risk of

serious harm” prong was met if there was a “serious medical

need,” such that a “failure to treat a prisoner’s condition

could result in further significant injury or the unnecessary

and wanton infliction of pain.”37 This is an objective

standard, and includes the “existence of an injury that a

reasonable doctor or patient would find important and worthy

of comment or treatment; the presence of a medical condition

that significantly affects an individual’s daily activities; or the

existence of chronic and substantial pain.”38

As the district court noted, Russell’s aortic dissection was

indeed a “serious” medical need, as it resulted in his death.

The Medical Team argues that, for this prong of the

inadequate medical care test, we should only consider the

36

Id. (quoting Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1071

(9th Cir. 2016)).

37

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

(quoting Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006)).

38

Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014) (internal

quotation marks omitted) (quoting McGuckin v. Smith, 974 F.2d 1050,

1059–60 (9th Cir. 1992), overruled in part on other grounds by WMX

Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc)).

RUSSELL V. LUMITAP 19

symptoms Russell was experiencing before he died rather

than asking whether an aortic dissection itself constitutes a

serious medical need. Even assuming we limited the scope

of this test in this manner, Russell’s symptoms—including

hyperventilation, vomiting, dry heaving, difficulty breathing,

severe chest pain radiating to his arm and jaw, numbness in

his hands and feet, and tachycardia—are medical issues “that

a reasonable doctor or patient would find important and

worthy of comment or treatment . . . .”39 This prong was

therefore satisfied.

D. Objective indifference

The primary issue in this case is the third prong of the

Gordon test. As we explained, the subjective deliberate

indifference prong of the Clouthier test that governed

inadequate medical care claims at the time of Russell’s death

has since been replaced by Gordon’s objective prong. An

officer is entitled to qualified immunity unless the

unlawfulness of his conduct was clearly established at the

time that he acted,40 and the law at the time that the

defendants acted was different than it is now. However, we

held in Sandoval v. County of San Diego that “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 . . . ‘concentrate on the objective

aspects of the [pre-Gordon] constitutional standard’ to

39

Colwell, 763 F.3d at 1066 (internal quotation marks omitted)

(quoting McGuckin, 974 F.2d at 1059–60, overruled in part on other

grounds by WMX Techs., 104 F.3d at 1136).

40

Wesby, 138 S. Ct. at 589 (quoting Reichle v. Howards, 566 U.S.

658, 664 (2012)).

20 RUSSELL V. LUMITAP

evaluate whether the law was clearly established.”41 “[T]he

objective deliberate indifference standard applies even when

the incident occurred pre-Gordon.”42 Thus, to determine

whether the defendants are entitled to qualified immunity, we

do not consider whether they subjectively understood that

Russell faced a substantial risk of serious harm.43 Rather, we

conduct “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.”44

Applying Sandoval’s approach here, to defeat qualified

immunity the plaintiffs must show that, given the available

case law at the time, a reasonable official, knowing what

Dr. Le, Nurse Teofilo, Nurse Trout, and Nurse Lumitap

knew, would have understood that their actions “presented

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

act was unconstitutional.”45 Their “actual subjective

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

law inquiry.”46

41

985 F.3d 657, 672 (9th Cir. 2021).

42

Id. at 674.

43

See id. at 676–78.

44

Id. at 678 (citing Horton, 915 F.3d at 600–02) (emphasis in

original).

45

Id. (quoting Horton, 915 F.3d at 600).

46

Id. We do not suggest that the outcome in this case turns on the

“objective” test, nor do we exclude the possibility that the old “subjective”

standard would lead to a different outcome.

RUSSELL V. LUMITAP 21

To show that an official’s failure to act was

unconstitutional, a plaintiff need not “prove complete failure

to treat” because “access to medical staff is meaningless

unless that staff is competent and can render competent

care.”47 And there is no reason to doubt that, although

medical negligence is not by itself unconstitutional, the care

rendered can be so inadequate to the circumstances known to

the medical staff as to amount to deliberate indifference. By

the time of Russell’s death, we had reversed a grant of

summary judgment in favor of three nurses and a doctor who

failed to adequately care for a pretrial detainee who had

suffered a head injury.48 Instead of calling the emergency

room when the detainee began to exhibit symptoms of serious

complications from a head injury, the doctor prescribed

sedatives which masked the symptoms of the complications.49

Even though they did provide treatment, the record permitted

the inference that the treatment they provided was

constitutionally defective, and summary judgment in their

favor was therefore inappropriate.50

We have recognized that “failing to provide CPR or other

life-saving measures to an inmate in obvious need can

47

Ortiz v. Imperial, 884 F.2d 1312, 1314 (9th Cir. 1989) (internal

quotation marks omitted) (quoting Cabrales v. Cnty. of Los Angeles,

864 F.2d 1454, 1461 (9th Cir. 1988)).

48

See id. at 1313–14.

49

See id.

50

See id. at 1314.

22 RUSSELL V. LUMITAP

provide the basis for liability under § 1983.”51 For example,

we have found that officers were not entitled to summary

judgment on liability where they discovered an inmate

unconscious after a suicide attempt and failed to administer

CPR “despite an obvious need.”52 And we have found that

nurses were not entitled to summary judgment on qualified

immunity where they failed to call paramedics to assist an

inmate who was unresponsive and having a seizure, because

it was clearly established that “every reasonable nurse” would

have understood that paramedics were necessary in such a

situation.53

While we need not point to cases dealing with the specific

type of cardiac symptoms Russell displayed, aortic dissection,

it is worth noting that by the time of Russell’s death, some of

our sister Circuits had dealt with the law as applied to such a

situation. The Eighth Circuit, for example, held that the

deliberate indifference standard was satisfied by a delay in

treatment for an inmate with a history of heart problems who

displayed “classic heart attack symptoms” that were

“obviously severe,” including arm and chest pains, profuse

sweating, and nausea.54 In another decision, the Eighth

Circuit had also concluded that the standard was met where

prison officials began CPR in response to an inmate’s heart

attack but then halted treatment for up to ten minutes “with

51

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

(9th Cir. 2013).

52

Id. at 1083.

53

Sandoval, 985 F.3d at 679.

54

Plemmons v. Roberts, 439 F.3d 818, 823–25 (8th Cir. 2006).

RUSSELL V. LUMITAP 23

no good or apparent explanation for the delay . . . .”55

Similarly, the Sixth Circuit held that the deliberate

indifference standard was met where an official delayed

transportation to a hospital for a detainee who had not taken

what an officer believed was her heart medication for three

days and who was displaying “classic” signs of an impending

heart attack such as chest pain and difficulty breathing. 56

1. Dr. Le

After Nurse Trout administered a dose of nitroglycerin to

Russell and it failed to alleviate his symptoms, she called

Dr. Le, the on-call physician at the time. According to Nurse

Trout’s notes in Russell’s medical record, she told Dr. Le that

she had administered a dose of nitroglycerin but that Russell

was still experiencing chest pain, vomiting, and rapid

breathing, and that he appeared anxious.

In response to Nurse Trout’s report of Russell’s

symptoms, Dr. Le merely recommended Motrin and a mental-

health screening over the phone. He did not recommend

hospitalization after learning that the first dose of

nitroglycerin had been ineffective, nor did he ever physically

examine Russell, even though he lived only fifteen minutes

away. Dr. Le did not give any specific explanation for why

he chose to diagnose Russell over the phone rather than in

person, simply stating that “[w]e do that all the time” and

“[t]hat’s the standard of care nowadays.”

55

Tlamka v. Serrell, 244 F.3d 628, 632–35 (8th Cir. 2001).

56

Estate of Carter v. Detroit, 408 F.3d 305, 312–13 (6th Cir. 2005).

24 RUSSELL V. LUMITAP

While of course there is no § 1983 liability for simply

acting contrary to prison policy,57 the Correctional Health

Services Standardized Procedures for Registered Nurses help

to underscore that Dr. Le, and the other members of the

medical team, had access to facts from which a reasonable

person would infer that Russell was at serious medical risk.

Nurse Trout administered nitroglycerin to Russell around

1:08 a.m. on January 24, but Russell’s chest pain did not

subside. According to the Standardized Procedures, a nurse

who administers nitroglycerin for chest pain must call for

paramedics if symptoms “do not subside after the first dose.”

The record does not explain why the procedure demands such

an urgent response to an ineffective dose of nitroglycerin.

But drawing all reasonable inferences in favor of Russell—as

we must at this stage—we are compelled to infer that a

patient whose chest pain does not subside after one dose of

nitroglycerin is known to the prison system to be at a

substantial risk of harm. Therefore, each medical

professional who knew that Russell had been administered an

ineffective dose of nitroglycerin had facts available from

which a reasonable person would infer that he was at

substantial risk of harm if not hospitalized. And he steadily

grew worse instead of better. As the night went on, by

5:32 a.m., Russell was obviously much sicker than at

1:08 a.m. and obviously in a life-threatening medical

condition.

Like the plaintiffs in Plemmons, Tlamka, and Estate of

Carter, Russell was displaying “classic” and “obviously

57

Case v. Kitsap Cnty. Sheriff’s Dep’t, 249 F.3d 921, 929–30 (9th Cir.

2001).

RUSSELL V. LUMITAP 25

severe”58 symptoms of a heart attack. And like the officials

in Tlamka, Dr. Le and the nurses halted treatment “with no

good or apparent explanation for the delay . . . .”59 Dr. Le

knew that the intervention plan under the Standardized

Procedures for angina pectoris had been initiated when

Russell was given a first dose of nitroglycerin, yet he did not

recommend continuing this line of treatment—which called

for the administration of up to two more doses of

nitroglycerin within as little as five minutes after the first

dose, and hospitalization.

As in Clouthier, it should have been clear to Dr. Le that

Russell was at severe risk based on Nurse Trout’s call

relaying his symptoms and the recommendation of the

Standardized Procedures to hospitalize Russell under these

circumstances.60 Unlike Simmons, it is reasonable to infer—

and so, again, at this stage we must61—that a reasonable

person in Dr. Le’s position would have been aware that the

risk to Russell was “imminent”62 due to the severity and

58

Tlamka, 244 F.3d at 632–35; Estate of Carter, 408 F.3d at 312–13;

Plemmons, 439 F.3d at 823–25.

59

Tlamka, 244 F.3d at 635.

60

Clouthier, 591 F.3d at 1244.

61

Nicholson, 935 F.3d at 690.

62

Simmons v. Navajo Cnty., 609 F.3d 1011, 1018 (9th Cir. 2010)

(internal quotation marks omitted) (emphasis in original) (quoting

Collignon v. Milwaukee Cnty., 163 F.3d 982, 990 (9th Cir. 1998)),

overruled in part by Castro v. Cnty. of Los Angeles, 833 F.3d 1060 (9th

Cir. 2016) (en banc).

26 RUSSELL V. LUMITAP

nature of the symptoms and the “obvious”63 nature of the risk,

as demonstrated in part by the fact that the Standardized

Procedures called for an immediate call to paramedics under

these circumstances.

Nevertheless, without explanation or examination, Dr. Le

did not recommend that Nurse Trout conform her treatment

to the Standardized Procedures. As in Ortiz, Dr. Le made his

recommendation without examining his patient despite his

knowledge of Russell’s ominous symptoms, and disregarded

a clear signal—the ineffectiveness of the dose of

nitroglycerin—that Russell’s condition was potentially fatal.64

While Dr. Le recommended Motrin and a mental-health

screening, clearly established law at the time provided that

Russell need not “prove complete failure to treat” because

“access to medical staff is meaningless unless that staff is

competent and can render competent care.”65 A reasonable

jury could conclude that Dr. Le had been deliberately

indifferent.

Under these circumstances, taking the facts most

favorably to the plaintiffs, Dr. Le could not have reasonably

believed based on the clearly established law as it stood then

that he could provide constitutionally adequate care without

even examining a patient with Russell’s symptoms who had

not responded to a dose of nitroglycerin. Therefore, the

63

Farmer v. Brennan, 511 U.S. 825, 842 (1994).

64

Ortiz, 884 F.2d at 1313–14.

65

Id. at 1314 (9th Cir. 1989) (quoting Cabrales, 864 F.2d at 1461)

(internal quotation marks omitted).

RUSSELL V. LUMITAP 27

district court was correct in denying summary judgment on

qualified immunity to Dr. Le.

2. Nurse Teofilo

Nurse Teofilo interacted with Russell four times between

around 10:35 p.m. on January 23 and around 5:32 a.m. on

January 24. During Russell’s first visit with Nurse Teofilo at

10:35 p.m., he told her that he was having an anxiety attack

and could not breathe, and she gave him Pepto Bismol. He

returned to her a few hours later, at around 12:03 a.m., and

told her he believed the pain was muscular because he had

done thirty push-ups the day before. Nurse Trout gave

Russell a dose of nitroglycerin at around 1:08 a.m., and Nurse

Teofilo saw him twice after that: he complained to her of flu-

like symptoms at around 2:04 a.m., and he returned once

more with chest pain at around 5:32 a.m., at which point she

administered a dose of Motrin. During these interactions,

Russell showed worsening symptoms including

hyperventilation, vomiting, dry heaving, severe chest pain,

anxiety, an inability to express his needs clearly, flu-like

symptoms, labored breathing, and tachycardia.

As described above, each member of the Medical Team,

including Nurse Teofilo, had access to facts from which an

inference could be drawn that Russell was at serious risk.

There is also evidence that Nurse Teofilo actually drew that

inference—when Russell complained to her of flu-like

symptoms at around 2:04 a.m., she reached out to Nurse

Trout to ask why Russell had not been hospitalized in

accordance with policy after he failed to respond to

nitroglycerine. Nurse Teofilo learned from Nurse Trout that

Dr. Le had only recommended Motrin and a mental health

evaluation, and her subsequent decisions were made in

28 RUSSELL V. LUMITAP

reliance on Dr. Le’s recommendation. But the call to Dr. Le

had been made over four hours earlier, and Russell’s

symptoms had become far more serious. Yet, Nurse Teofilo

did not call paramedics, nor did she call Dr. Le to ask whether

the far more severe symptoms required anything more than

the Motrin he had previously prescribed. The district court

was correct in denying summary judgment on qualified

immunity to Nurse Teofilo. A reasonable jury could

conclude that she met the standard for deliberate indifference.

3. Nurse Trout

Nurse Trout, though, is entitled to summary judgment on

qualified immunity. When Nurse Trout saw Russell at

around 1:08 a.m., she was aware that Russell was

experiencing symptoms including nausea, vomiting, anxiety,

rapid breathing, numbness in his hands and feet, and chest

pain radiating to his arm and jaw. After she gave Russell a

dose of nitroglycerin and his chest pain persisted, a

reasonable person in her circumstances would have inferred

that Russell was at serious risk if not hospitalized.

However, when Nurse Trout called Dr. Le and told him

all of the symptoms that Russell had been experiencing,

Dr. Le did not recommend hospitalizing him. Even though

Russell was experiencing classic symptoms of a heart attack,

Dr. Le recommended Motrin and a mental-health screening.

No clearly established law would have put a reasonable nurse

in Nurse Trout’s position on notice that she could violate

Russell’s constitutional rights even while relying on Dr. Le’s

evaluation and recommendation. Therefore, Nurse Trout is

entitled to summary judgment on qualified immunity. A jury

could not, on the facts pleaded, reasonably conclude that

Nurse Trout was deliberately indifferent. Though perhaps

RUSSELL V. LUMITAP 29

she should have called paramedics, her having promptly

called the physician on call and followed his instructions

cannot be categorized as deliberate indifference.

4. Nurse Lumitap

Nurse Lumitap was responsible for Russell’s care from

around 7:00 a.m. until 12:20 p.m. on January 24. She was

aware of all of the symptoms observed and recorded by

Nurses Teofilo and Trout,66 and, before Russell became

unresponsive at 12:20 p.m., she personally observed him

experiencing even more severe symptoms including

vomiting, signs of physical distress such as hunching over

and grasping his chest, fear about his condition, and deep

throbbing pain in the middle of his chest and throat. At

around 11:08 a.m. on January 24, Russell told her he had

been diagnosed with high blood pressure in the past. She was

also aware that Russell had been administered an ineffective

dose of nitroglycerin. Drawing all inferences in plaintiff’s

favor, a reasonable person in Nurse Lumitap’s position would

have inferred that Russell was at serious risk if not

hospitalized. By the time she came on duty at 7:00 am,

Dr. Le’s advice was 5 ½ hours old and Russell’s symptoms

were much worse than when Dr. Le had been called.

The record shows that, like Nurses Teofilo and Trout,

Nurse Lumitap knew that Dr. Le had evaluated Russell over

the phone and had not recommended hospitalization.

However, Nurse Lumitap was responsible for Russell’s care

from around 7:00 am until 12:20 pm, between 5 ½ to

66

Nurse Lumitap testified that she knew of the other nurses’

assessments of Russell when she was evaluating his symptoms, and a jury

could reasonably infer that she had read through their medical notes.

30 RUSSELL V. LUMITAP

11 hours after Dr. Le had made his recommendation to

administer Motrin. A reasonable factfinder could conclude

that, after so much time had elapsed, and in the face of

Russell’s rapidly deteriorating condition, Nurse Lumitap was

no longer in a position to reasonably rely on Dr. Le’s

recommendation from the night before without calling him

again. She did not call for paramedics until Russell was

unresponsive, and at no point did she call Dr. Le or any other

physician for an updated recommendation in light of

Russell’s worsening symptoms. Her decision not to call

Dr. Le (or whichever physician was then on call) at any point

during that period suffices to raise a genuine dispute over

whether it was clearly established that the care she provided

was constitutionally adequate. Therefore, the district court

was correct in denying qualified immunity to Nurse Lumitap.

* * *

Although Nurse Trout is shielded by qualified immunity

because her actions did not violate then-existing clearly

established law, there is at least a genuine dispute of material

fact over whether Dr. Le’s and Nurses Teofilo’s and

Lumitap’s conduct violated clearly established law as it then

stood. Therefore, we reverse the district court’s denial of

qualified immunity to Nurse Trout, and we affirm its denial

of qualified immunity to Dr. Le and Nurses Teofilo and

Lumitap.

AFFIRMED in part, REVERSED in part, and

REMANDED. Costs to be awarded in favor of plaintiffs-

appellees.