888 F.3d 1118 (9th Cir. 2018), 16-56005, Gordon v. County of Orange

Docket Nº:16-56005
Citation:888 F.3d 1118
Opinion Judge:GONZALEZ ROGERS, District Judge:
Party Name:Mary GORDON, successor-in-interest for decedent, Matthew Shawn Gordon, individually, Plaintiff-Appellant, v. COUNTY OF ORANGE; Orange County Sheriff’s Department; Sandra Hutchens, Orange County Sheriff— Coroner; Orange County Central Men’s Jail; Orange County Health Care Agency; Does, 5 through 10, inclusive; Robert Denney; Brian Tunque; ...
Attorney:David A. Schlesinger (argued), Jacobs & Schlesinger LLP, San Diego, California; Cameron Sehat, The Sehat Law Firm PLC, Irvine, California; for Plaintiff-Appellant. Pancy Lin (argued) and S. Frank Harrell, Lynberg & Watkins, Orange, California, for Defendants-Appellees.
Judge Panel:Before: Kim McLane Wardlaw and Ronald M. Gould, Circuit Judges, and Yvonne Gonzalez Rogers, District Judge.
Case Date:April 30, 2018
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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888 F.3d 1118 (9th Cir. 2018)

Mary GORDON, successor-in-interest for decedent, Matthew Shawn Gordon, individually, Plaintiff-Appellant,

v.

COUNTY OF ORANGE; Orange County Sheriff’s Department; Sandra Hutchens, Orange County Sheriff— Coroner; Orange County Central Men’s Jail; Orange County Health Care Agency; Does, 5 through 10, inclusive; Robert Denney; Brian Tunque; Brianne Garcia; Debra Finley, Defendants-Appellees.

No. 16-56005

United States Court of Appeals, Ninth Circuit

April 30, 2018

Argued and Submitted December 8, 2017 Pasadena, California

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the Central District of California, Cormac J. Carney, District Judge, Presiding, D.C. No. 8:14-cv-01050-CJC-DFM

David A. Schlesinger (argued), Jacobs & Schlesinger LLP, San Diego, California; Cameron Sehat, The Sehat Law Firm PLC, Irvine, California; for Plaintiff-Appellant.

Pancy Lin (argued) and S. Frank Harrell, Lynberg & Watkins, Orange, California, for Defendants-Appellees.

Before: Kim McLane Wardlaw and Ronald M. Gould, Circuit Judges, and Yvonne Gonzalez Rogers,[*] District Judge.

SUMMARY[**]

42 U.S.C. § 1983

The panel vacated the district court's summary judgment in a 42 U.S.C. § 1983 action alleging claims of inadequate medical care under the Due Process Clause of the Fourteenth Amendment, arising from the death of Matthew Gordon when he was a pretrial detainee in the Orange County Men's Central Jail; and remanded for further proceedings.

The panel held that given developments in Section 1983 jurisprudence, including the Supreme Court's decision in Kingsley v. Hendrickson, 135 S.Ct. 2466 (2015), and this court's en banc opinion in Castro v. County of Los Angeles, 833 F.3d 1060 (9th Cir. 2016), the proper standard of review of such claims was one of objective indifference, not subjective indifference. The panel held that because the district court applied a subjective standard to the plaintiff's claims of inadequate medical care against individual defendants, the grant of summary judgment was in error.

The panel declined to address the individual defendants' claim of qualified immunity in the first instance.

The panel held that the district court improperly granted summary judgment for the County of Orange and associated entities on the ground that the plaintiff could not establish a custom or practice sufficient under Monell v. Department of Social Services, 436 U.S. 658 (1978). The panel left this question for the district court to address in the first instance using the proper standard.

OPINION

GONZALEZ ROGERS, District Judge:

This case arises from the death of Matthew Gordon (" Gordon" ) within 30 hours of being detained in the Orange County Men’s Central Jail (the " County Jail" ). Plaintiff Mary Gordon, successor-in-interest for decedent, sued defendants Robert Denny, Brian Tunque, Brianne Garcia, and Debra Finley (" the Individual Defendants" ); and the County of Orange and associated entities (" the Entity Defendants" ) under 42 U.S.C. § 1983 for violating Gordon’s right to adequate medical care under the due process clause of the Fourteenth Amendment. Given developments in Section 1983 jurisprudence, including the Supreme Court’s decision in Kingsley v. Hendrickson, __ U.S. __, 135 S.Ct. 2466, 192 L.Ed.2d 416 (2015), and our en banc decision in Castro v. County of Los Angeles, 833 F.3d 1060 (9th Cir. 2016), we conclude that the proper standard of review for such claims is one of objective indifference, not subjective indifference. Accordingly, summary judgment is vacated and the case is remanded to the district court for further proceedings consistent with this decision.

PROCEDURAL HISTORY

The Individual Defendants sought summary judgment on the ground that the plaintiff lacked evidence of their alleged deliberate indifference to the decedent’s health or safety. The Entity Defendants also sought summary judgment based upon the plaintiff’s failure to show a custom or practice sufficient under Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). In this regard, the plaintiff had proceeded on two theories which she alleged led to Gordon’s death. First, the plaintiff alleged the systematic use of the wrong intake form which resulted in the misclassification and misplacement of detainees. In particular, she claimed the Entity Defendants used a form designed to address alcohol withdrawal rather than one designed for opiate withdrawal. Second, she alleged the systematic failure to conduct welfare checks or " safety checks" from a vantage point which allowed for visual observation of the safety and welfare of all inmates.

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The district court granted summary judgment in favor of the Individual Defendants reasoning that a due process challenge based on inadequate medical care required a showing of subjective deliberate indifference and that there was insufficient evidence to support that showing. The district court also granted summary judgment in favor of the Entity Defendants on the plaintiff’s Monell claim on the ground that the plaintiff failed to present sufficient evidence of a custom or practice. The plaintiff timely appealed.

BACKGROUND

The events at issue began on September 8, 2013 at 6:47 p.m. and ended on September 9, 2013 at 11:00 p.m. Within less than 30 hours, Matthew Gordon died while detained in Module C, Tank 11 of the Orange County Jail.

On September 8, 2013, the Placentia Police Department arrested Gordon on heroin-related charges and transported him to the County Jail. Defendant nurse Debra Finley (" Nurse Finley" ) conducted an intake assessment of Gordon at 6:47 p.m. during which she inquired whether he " use[d] any street drugs." In response Gordon indicated that he used " [h]eroine, by IV, at 3 grams a day." To evaluate Gordon, Nurse Finley used an assessment form designed for alcohol withdrawal, entitled Clinical Institute Withdrawal Assessment for Alcohol (" CIWA" ). She did not use the county’s " Clinical Opiate Withdrawal Scale" (" COWS" ) assessment form.

Thereafter, defendant Nurse Finley consulted with non-party Dr. Thomas Le (a consulting physician) (" Dr. Le" ) who issued an " Opiate WD [Withdrawal] Order." Therein, Dr. Le both ordered that Gordon be placed in regular housing rather than medical unit housing and prescribed Tylenol for pain, Zofran for nausea, and Atarax for anxiety. Dr. Le apparently crossed out a section under the heading " Nursing Detox Assessments" which stated " COWS and Vital Signs on admission and daily x5" and instead handwrote " CIWA x 4 Days," that is, Gordon was to receive the ordered protocol for four days. Nurse Finley completed the intake assessment and had no further contact with Gordon.

The plaintiff’s nursing expert opined that the county’s COWS form would have measured symptoms specific to opiate withdrawal and triggered a need to house Gordon in the Medical Observation Unit where Gordon would have been monitored more closely. The plaintiff’s expert further opined that had the COWS form been used, it is more probable than not that Gordon would have been found to be in medical distress hours prior to his death. The plaintiff proffered evidence that the Entity Defendants did not use the COWS form systematically, and changed their practice after Gordon’s death.

Following his intake assessment, Gordon waited for nearly ten hours to be assigned a space in the County Jail’s general population. During this time a fellow detainee observed Gordon vomit continuously for 30-45 minutes and " curl up in a ball." At approximately 8:30 a.m. on September 9, 2013, Gordon was transferred to Module C, Tank 11 in the County Jail along with a " module card" to advise the deputies that Gordon required medical attention. While Gordon was in Module C, defendant nurse Brianne Garcia, on three occasions, administered the medications which Dr. Le prescribed but had no further interaction with the decedent.

Defendant Deputy Denny (" Deputy Denny" ) conducted a welfare check of Module C at approximately 6:47 p.m. on September 9, 2013. He then conducted a second and third check after lights out at 8:31 p.m. and 9:29 p.m., respectively. The stated

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purpose of the checks was to " maintain the safety and health of the inmates and the security of the facilities" with " direct visual observation of each inmate...." Deputy Denny testified that he conducted these three welfare checks from a corridor which was twelve to fifteen feet away from Gordon’s bunk and was elevated approximately six feet from the Tank 11 floor. The plaintiff’s evidence suggests that the checks were further obscured by a glass corridor. In any event, Deputy Denny acknowledged that from his vantage point he was unable to determine whether an inmate was " breathing," " alive," or had " potential indicators of a physical problem."

At approximately 10:46 p.m., inmates in Module C yelled " man down" to the deputies, the man being Gordon. Deputy Denny arrived within a couple of minutes. He testified that upon his arrival Gordon’s " face was blue, he was unresponsive and his skin was cold to the touch." Medical staffers arrived a few minutes later and attempted to administer care. At 11:00 p.m. paramedics transported Gordon to Western Medical Center in Santa Ana where he was pronounced dead. The record reflects that defendant Brian Tunque was the supervising Sergeant on the night of the incident but was apparently not otherwise involved in events described herein.

STANDARD OF REVIEW

We review the district court’s decision to grant summary judgment de novo. Qwest Commc’ns Inc. v. City of Berkeley, 433 F.3d 1253, 1256 (9th Cir. 2006). Thus,...

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