Surie Alexander v. Dau Nguyen

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SURIE ALEXANDER, No. 22-55588

Plaintiff-Appellant, D.C. No.

5:19-cv-01359-

v. DSF-SP

DAU V. NGUYEN, M.D., in his

individual capacity, OPINION

Defendant-Appellee.

Appeal from the United States District Court

for the Central District of California

Dale S. Fischer, District Judge, Presiding

Argued and Submitted June 5, 2023

Pasadena, California

Filed August 25, 2023

Before: Milan D. Smith, Jr., David F. Hamilton, * and

Daniel P. Collins, Circuit Judges.

Opinion by Judge David F. Hamilton

*

The Honorable David F. Hamilton, United States Circuit Judge for the

U.S. Court of Appeals for the Seventh Circuit, sitting by designation.

2 ALEXANDER V. NGUYEN

SUMMARY **

Pretrial Detainees/Substantive Due Process

The panel affirmed, on the merits rather than based on

the defense of qualified immunity, the district court’s

summary judgment in favor of Dr. Dau Nguyen, a

psychiatrist at Patton State Hospital in California, in Surie

Alexander’s 42 U.S.C. § 1983 action alleging that he was

twice attacked by a fellow patient while he was a pretrial

detainee and a patient at the Hospital.

Alexander sued Nguyen for injuries from the second

attack, alleging that Dr. Nguyen violated his Fourteenth

Amendment right to substantive due process. Alexander

argued that Dr. Nguyen denied him appropriate medical care

in violation of his Fourteenth Amendment rights under

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

which requires a plaintiff to “prove more than negligence but

less than subjective intent—something akin to reckless

disregard,” while Dr. Nguyen argued that the proper inquiry

was whether Alexander was deprived of safe conditions

under Youngberg v. Romeo, 457 U.S. 307 (1982), which

requires a finding of conscious indifference amounting to

gross negligence.

The panel determined that both tests ask whether Dr.

Nguyen’s conduct was reasonable, and both require

Alexander to show that Dr. Nguyen’s conduct was worse

than negligent. The panel held that under either test,

Alexander offered no evidence that Dr. Nguyen failed to act

**

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

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

ALEXANDER V. NGUYEN 3

reasonably, let alone that he was “more than negligent” in

not transferring Alexander or the other patient after the first

attack. Although Alexander was attacked a second time, the

evidence showed that Dr. Nguyen’s responses to both

incidents were thorough and careful. Accordingly, the panel

found no violation of Alexander’s constitutional rights.

COUNSEL

Zulu Ali (argued), Law Office of Zulu Ali, Riverside,

California, for Plaintiff-Appellant.

Thomas M. McMahon (argued), Deputy Attorney General;

Donna M. Dean, Supervising Deputy Attorney General;

Pamela L. Holmes, Acting Senior Assistant Attorney

General; Rob Bonta, California Attorney General; California

Attorney General’s Office, Los Angeles, California, for

Defendant-Appellee.

4 ALEXANDER V. NGUYEN

OPINION

HAMILTON, Circuit Judge:

While plaintiff Surie Alexander was a pretrial detainee

and a patient at Patton State Hospital in California, he was

twice attacked by a fellow patient. He sued Dr. Dau Nguyen,

the psychiatrist in charge of his unit, under 42 U.S.C. § 1983

for injuries from the second attack, alleging that Dr. Nguyen

violated his Fourteenth Amendment right to substantive due

process. The district court granted Dr. Nguyen’s motion for

summary judgment based on the defense of qualified

immunity. We affirm summary judgment on Alexander’s

claim, basing our decision on the merits of the claim rather

than qualified immunity.

I. Factual and Procedural Background

We state the facts relevant for purposes of summary

judgment, giving Alexander as the non-moving party the

benefit of conflicts in the evidence and reasonable inferences

that can be drawn from the evidence. Nehad v. Browder, 929

F.3d 1125, 1132 (9th Cir. 2019). On February 7, 2017,

Alexander was admitted to Patton State Hospital to

determine whether he was competent to stand trial on a

criminal charge. He was assigned to Unit 72, where he was

treated by Dr. Nguyen, the unit psychiatrist. Hospital staff

diagnosed Alexander with aphasia, which is the loss of the

ability to understand or express speech due to brain damage.

Alexander was initially deemed incompetent to stand trial,

and staff in Unit 72 began working with him to restore his

competency.

On April 29, 2017, another patient in Unit 72 struck

Alexander twice on the left side of the head with his fist.

ALEXANDER V. NGUYEN 5

Alexander was treated by nursing staff, who noted redness

on the left side of his face but observed no bleeding,

bruising, swelling, or adverse neurological impacts.

A special incident report was prepared, and the

professional staff of Unit 72 met to discuss what action

should be taken to prevent further violence between

Alexander and the patient who attacked him. When patient-

on-patient violence occurs in a state hospital, the standard of

care does not require automatic transfer of one of the patients

to a different unit. The undisputed evidence in this record

shows instead that providers must carefully weigh several

factors to determine the best course of action for the patients

and the hospital. These factors include the severity of the

assault, whether there were prior assaults or threats between

the two patients, whether the patients can be counseled to

avoid further violence, whether the victim feels safe

remaining in his current unit, and whether the victim would

enjoy greater well-being in a different unit.

Dr. Nguyen initially recommended that Alexander be

transferred to a unit for fragile patients, but Alexander did

not meet the requirements. After consulting with other

members of the Unit 72 staff, Dr. Nguyen ultimately decided

that Alexander should not be moved to a different unit. Dr.

Nguyen’s decision was based on his conclusions that (1) the

assault was not particularly severe, (2) there had been no

prior incidents between the two patients, (3) Alexander and

the other patient were counseled on the need to refrain from

further violence and both agreed, (4) when asked, Alexander

said that he felt safe in Unit 72 and did not want to be

transferred, and (5) there was no reasonable likelihood that

Alexander’s well-being would be improved by transfer to a

different unit. Dr. Nguyen and the staff also decided to

adjust the medication of the patient who attacked Alexander

6 ALEXANDER V. NGUYEN

and altered that patient’s access to the dining room to limit

his interactions with Alexander.

On May 10, 2017, however, the same patient struck

Alexander with his fists again, this time on the right side of

his head. Alexander was immediately treated by staff, who

noted slight discoloration and swelling near his lower right

eyelid and a superficial scratch. He did not suffer any

neurological damage, and an x-ray showed no break or

fracture. Eight days after the incident, Alexander

complained of intermittent pain in his right eye. He was

evaluated by an ophthalmologist, who prescribed an

ointment for eyelid abrasion and Motrin for pain and

recommended further monitoring by hospital staff.

After the May 10 attack, another special incident report

was prepared, and in consultation with the staff in Unit 72,

Dr. Nguyen again weighed relevant factors to determine the

best course of action. Immediately after the attack, staff had

placed the aggressor patient in restraints and assigned a staff

member to supervise him one-on-one, but the staff did not

consider these to be feasible, long-term solutions. The staff

also did not believe that adjusting the patient’s medication

or limiting his access to the dining room would prevent

further acts of violence. Alexander continued to say that he

felt safe in Unit 72 and that he did not want to be transferred.

Nevertheless, based principally on the fact that the patient

had attacked Alexander twice, Dr. Nguyen and the staff in

Unit 72, with the agreement of Alexander’s wife, decided to

transfer him to a different unit.

Alexander was transferred to Unit 71 on May 17, 2017.

Hospital records indicate no further violence between

Alexander and the aggressor patient or any other patient or

staff member. Alexander was released from Patton State

ALEXANDER V. NGUYEN 7

Hospital in late February 2018 after staff determined he was

competent to stand trial.

Alexander then filed this suit against Dr. Nguyen under

42 U.S.C. § 1983 alleging a violation of his Fourteenth

Amendment right to substantive due process. Dr. Nguyen

moved for summary judgment, arguing (a) that the

undisputed facts showed no violation of Alexander’s

constitutional rights, and (b) that in any event Dr. Nguyen

was entitled to qualified immunity.

Dr. Patricia Tyler, a licensed psychiatrist with substantial

experience treating patients within the California State

Hospital system, provided an affidavit in support of Dr.

Nguyen’s motion. Dr. Tyler is familiar with the standard of

care applicable to hospitals and medical providers

responding to incidents of patient-on-patient violence.

According to Dr. Tyler, the reasonable and customary

standard of care in such cases is to conduct a timely review

of the incident, to perform a risk assessment to determine

what caused the incident, and to consider and coordinate

reasonable actions to prevent further violence, while

considering the impact of any action on patient care. This

decision process requires providers to weigh various factors,

including the severity of the incident, any prior incidents of

violence against patients or staff involving the aggressor

patient, whether medication or schedule changes could

prevent further acts of violence, whether the patients

involved could be counseled to avoid retaliation and further

violence, the availability of appropriate treatment beds in

other units and the level of aggression or risk of aggression

in those units, and victim and family preferences. Dr. Tyler

opined that Dr. Nguyen met and exceeded the standard of

care for responding to patient-on-patient aggression after

8 ALEXANDER V. NGUYEN

both incidents. Plaintiff Alexander has not offered any

evidence disputing this evidence of the standard of care.

The district court granted Dr. Nguyen’s motion for

summary judgment. The court did not decide whether

Alexander’s constitutional rights were violated but

concluded that Dr. Nguyen was entitled to qualified

immunity because it was not clearly established that his

actions violated the Constitution.

II. Jurisdiction and Standard of Review

We have jurisdiction over this appeal pursuant to 28

U.S.C. § 1291. We review de novo the district court’s grant

of summary judgment. Nehad, 929 F.3d at 1132. As noted,

in reviewing a grant of summary judgment, we view all facts

and draw all reasonable inferences in the light most

favorable to the non-moving party. Id. Summary judgment

is appropriate where the movant shows there is no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(a); Rice v.

Morehouse, 989 F.3d 1112, 1120 (9th Cir. 2021).

III. Analysis

A government official is entitled to qualified immunity

“unless the plaintiff raises a genuine issue of fact showing

(1) ‘a violation of a constitutional right,’ and (2) that the right

was ‘clearly established at the time of [the] defendant’s

alleged misconduct.’” Evans v. Skolnik, 997 F.3d 1060,

1064 (9th Cir. 2021) (quoting Pearson v. Callahan, 555 U.S.

223, 232 (2009)). The court may address these issues in

either order. Id. at 1064–66.

This court tends “to address both prongs of qualified

immunity where the two-step procedure promotes the

development of constitutional precedent in an area where

ALEXANDER V. NGUYEN 9

this court’s guidance is … needed.” Martinez v. City of

Clovis, 943 F.3d 1260, 1270 (9th Cir. 2019) (quoting Horton

by Horton v. City of Santa Maria, 915 F.3d 592, 602 (9th

Cir. 2019) (internal quotation marks omitted)). Because the

law governing pretrial detainees’ claims of inadequate

medical care and other dangerous conditions of confinement

is still developing in the wake of the Supreme Court’s

decision in Kingsley v. Hendrickson, 576 U.S. 389 (2015),

we address the first prong, which is decisive here. We need

not discuss qualified immunity separately.

Alexander argues that he can prove that Dr. Nguyen

denied him appropriate medical care in violation of his

Fourteenth Amendment rights under the test set forth in

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

Dr. Nguyen argues that the proper inquiry is whether

Alexander was deprived of safe conditions under the test in

Youngberg v. Romeo, 457 U.S. 307 (1982). These tests

differ only slightly. Both ask whether Dr. Nguyen’s conduct

was reasonable, and both require Alexander to show that Dr.

Nguyen’s conduct was worse than negligent. The

undisputed facts show that Alexander cannot meet this

burden under either phrasing.

Gordon followed Kingsley and held that claims for

violations of the right to adequate medical care brought by

pretrial detainees are to be evaluated under an objective

deliberate indifference standard. 888 F.3d at 1124–25. To

prevail on such a claim, the pretrial detainee must prove:

“(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

10 ALEXANDER V. NGUYEN

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.” Id. at 1125. Gordon made a significant

point regarding the third element: “mere lack of due care by

a state official” is not enough to show a constitutional

violation. Id. (quoting Castro v. County of Los Angeles, 833

F.3d 1060, 1071 (9th Cir. 2016) (en banc) (internal quotation

marks omitted)). The plaintiff must “prove more than

negligence but less than subjective intent—something akin

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

1071).

In Youngberg, the Supreme Court held that patients

committed involuntarily to state hospitals have a

constitutional right to safe conditions. 457 U.S. at 315–16.

Claims alleging violations of that right are evaluated under a

professional judgment standard. Under this standard,

decisions made by appropriate professionals are

“presumptively valid,” and liability “may be imposed only

when the decision by the professional is such a substantial

departure from accepted professional judgment, practice, or

standards as to demonstrate that the person responsible

actually did not base the decision on such a judgment.” Id.

at 323. The standard from Youngberg thus considers

whether a hospital official’s conduct “diverges from that of

a reasonable professional.” Ammons v. Washington Dep’t of

Social & Health Servs., 648 F.3d 1020, 1027 (9th Cir. 2011).

To impose liability, the professional judgment standard

requires a “finding of conscious indifference amounting to

gross negligence.” Estate of Conners by Meredith v.

O’Connor, 846 F.2d 1205, 1208 (9th Cir. 1988).

This case does not depend on any nuanced differences

between these standards. Alexander has offered no evidence

ALEXANDER V. NGUYEN 11

that Dr. Nguyen failed to act reasonably, let alone that he

was “more than negligent” when he decided not to transfer

Alexander or the other patient after the April 29 incident.

Undisputed evidence shows that Dr. Nguyen’s response to

the first attack on Alexander was reasonable (as was his

response to the second). Though Alexander was,

regrettably, attacked a second time, the evidence shows that

Dr. Nguyen’s responses to both incidents were thorough and

careful.

After each incident, hospital staff investigated and

memorialized their findings in a report. Dr. Nguyen

consulted with other professionals to determine the best

course of action. He considered relevant factors and

evaluated the risk of future violence against Alexander, as

well as the effect of a transfer on Alexander’s treatment. Dr.

Nguyen and his staff also implemented measures to reduce

the likelihood of future incidents, including adjusting the

aggressor’s medication and his access to the dining room

when Alexander would be there. The declaration of Dr.

Tyler, who has substantial experience treating patients in

state hospitals and is familiar with the standard of care for

responding to patient-on-patient violence, confirmed that

Dr. Nguyen’s conduct complied with, and in fact exceeded,

accepted professional standards. Whether evaluated under

Gordon or under Youngberg, Dr. Nguyen’s conduct was

reasonable and did not violate Alexander’s constitutional

rights.

Alexander’s arguments to the contrary do not establish a

genuine dispute of material fact. He criticizes Dr. Nguyen’s

decision to keep him in Unit 72 after the first attack, but the

benefit of hindsight from the fact that Alexander was

attacked a second time does not show that Dr. Nguyen’s

original decision was unreasonable. Alexander is arguing,

12 ALEXANDER V. NGUYEN

in effect, for a standard of strict liability for a second

incident. That would not be consistent with the law in

Youngberg or Gordon, or Kingsley, for that matter. The

undisputed facts show that Dr. Nguyen based his decision on

relevant factors, including whether a transfer would be

conducive to Alexander’s treatment, and he took several

measures to reduce the likelihood of further aggression.

Alexander also argues that Dr. Nguyen should not have

relied on Alexander’s stated desire to stay in Unit 72 given

his aphasia, but even assuming that Alexander was unable to

express his wishes clearly, his stated preference was only

one of several factors that Dr. Nguyen considered. Nothing

in the record would allow a reasonable jury to find that Dr.

Nguyen unreasonably relied solely—or even principally—

on Alexander’s stated preference when deciding not to

transfer him after the first attack. Because the undisputed

facts show that Dr. Nguyen acted reasonably in response to

the April 29 incident, we find no violation of Alexander’s

constitutional rights.

Accordingly, the judgment of the district court is

AFFIRMED.