Gordon v. Cnty. of Orange

Decision Date26 July 2021
Docket NumberNo. 19-56032,19-56032
Citation6 F.4th 961
Parties 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.
CourtU.S. Court of Appeals — Ninth Circuit

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

S. Frank Harrell (argued) and Jesse K. Cox, Lynberg & Watkins PC, Orange, California, for Defendants-Appellees.

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

GONZALEZ ROGERS, District Judge:

This is the second appeal arising from the death of Matthew Gordon within 30 hours after he was admitted as a pretrial detainee in the Orange County Central Men's Jail. His mother, plaintiff Mary Gordon, alleges Section 1983 claims of inadequate medical care under the due process clause of the Fourteenth Amendment. In a previous appeal, this Court held that inadequate medical care claims brought by pretrial detainees require a showing of objective, not subjective, deliberate indifference. See Gordon v. County of Orange , 888 F.3d 1118, 1124–25 (9th Cir. 2018) (" Gordon I "). Following remand, the district court allowed additional expert discovery and ultimately granted summary judgment for the individual defendants on the basis of qualified immunity and for the entity defendant on the ground that the plaintiff could not establish a custom or practice sufficient under Monell v. Dep't of Soc. Servs. , 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Plaintiff timely appealed.

Based upon a de novo review, and for the reasons set forth below, we affirm as to plaintiff's Monell claim and individual defendants Deputy Robert Denney, Nurse Brianne Garcia, and Sergeant Brian Tunque.1 However, we reverse and remand as to individual defendant Nurse Debbie Finley.

With respect to Nurse Finley and Deputy Denney, we conclude that the district court committed legal error by using a subjective standard in analyzing the clearly established prong of the qualified immunity test. Further, as to Nurse Finley, summary judgment was not proper because the available law at the time of the incident clearly established Gordon's constitutional rights to proper medical screening to ensure the medically appropriate protocol was initiated. However, as to Deputy Denney, although we now hold that Gordon had a constitutional right to direct-view safety checks, that right was not clearly established at the time of the incident.

FACTUAL BACKGROUND

On September 8, 2013, Gordon was arrested by the Placentia Police Department on heroin-related charges and booked into the Orange County Central Men's Jail. During his intake at approximately 6:47 p.m. that day, Gordon informed defendant Debbie Finley, a registered nurse, of his 3-grams-a-day heroin habit.

At the time, two detoxification protocols existed for purposes of assessing inmates suffering from substance withdrawal: (1) the Clinical Institute Withdrawal Assessment for Alcohol ("CIWA"), and (2) the Clinical Opiate Withdrawal Scale ("COWS"). Despite Gordon reporting his heroin use, jail medical staff never utilized the COWS protocol. Instead, non-party Dr. Thomas Le, a consulting physician, ordered that Gordon be evaluated under CIWA. Indeed, although the form that Dr. Le completed was titled "Opiate WD [Withdrawal] Orders," it was amended to direct an alcohol withdrawal protocol. Specifically, the form contained a section titled "Nursing Detox Assessments." Under that section, a checkbox denoted as "COWS and Vital Signs on admission and daily x 5" was crossed out, and "CIWA x 4 days" was handwritten instead. In other words, Gordon was to receive the ordered alcohol protocol for four days. In addition, Dr. Le 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.

After remand, Dr. Le submitted a declaration attesting that the CIWA protocol was appropriate for a poly-drug abuser such as Gordon. Conversely, the plaintiff's nursing expert opined that the 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. In accordance with Dr. Le's orders, Nurse Finley used the CIWA form to assess his symptoms. However, the record contains only one CIWA assessment dated September 8, 2013.

After his intake assessment, Gordon began the "loop" phase of the booking process during which time he waited nearly ten hours to enter the general population. During this period, another inmate had observed Gordon vomiting and dry heaving for 45 minutes. Nurse Finley testified that she did not assess Gordon during this timeframe.

Gordon exited the loop at approximately 8:30 a.m. the next day, September 9, when he was transferred to Tank 11 in Module C of the jail. There, he presented his identification card which stated: "Medical Attention Required."2 Gordon was administered his detoxification medications three times over the course of his first day in Module C. However, no CIWA form or other evaluation of Gordon occurred that day, despite the ordered daily CIWA assessment. Defendant Brianne Garcia, a licensed vocational nurse, completed Gordon's last pill pass at approximately 8:30 p.m. that evening.

Meanwhile, deputies were responsible for conducting safety checks of the inmates in Module C at least every 60 minutes. Based on the safety check log, at approximately 6:47 p.m., defendant Deputy Robert Denney and another deputy conducted a check that included a physical count of all the inmates in the module. Thereafter, additional safety checks were conducted at approximately 8:03 p.m., 8:31 p.m., 9:29 p.m., and 10:10 p.m., as indicated by the log.

According to the plaintiff, the two safety checks conducted by Deputy Denney at 8:31 p.m. and 9:29 p.m. did not comply with applicable law. Specifically, Section 1027 of Title 15 of the California Code of Regulations, in effect at the time, required that "[a] sufficient number of personnel shall be employed in each local detention facility to conduct at least hourly safety checks of inmates through direct visual observation of all inmates." 15 C.C.R. § 1027 (effective September 19, 2012).3

Moreover, the Orange County Sheriff's Department had a policy that correctional staff "will conduct safety checks from a location which provides a clear, direct view of each inmate"; "observe each inmate's presence and apparent condition and investigate any unusual circumstances or situations"; and "pay special attention to areas with low visibility." None of the deputies could account for who conducted the 10:10 p.m. safety check.

Deputy Denney testified that he was aware that Gordon required medical attention based on the module identification card, though he did not know his specific ailment. Deputy Denney conducted his safety check of Gordon from a corridor that was approximately six feet elevated from the tank floor and 12 to 15 feet away from the foot of Gordon's bunk. Deputy Denney admitted that, from his vantage point, he was unable to ascertain whether Gordon was breathing, alive, sweating profusely, drooling, or had any potential indicators of a physical problem.

At approximately 10:45 p.m. that evening, deputies heard inmates from Tanks 11 and 12 yelling "man down." Deputies summoned jail medical staff immediately, and they responded within minutes. Deputy Denney testified that upon his arrival on the scene, he observed that Gordon's "face was blue, he was unresponsive, and his skin was cold to the touch." Paramedics arrived at approximately 11:00 p.m. and transported Gordon to a local hospital 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 these events.

Shortly thereafter, in October 2013, a new policy issued referencing the use of COWS that required jail medical staff to screen "inmates who may be at risk for developing drug or alcohol related problems." Then, at some point between late 2014 and early 2015, policy changed to require deputies to conduct safety checks from an area immediately adjacent to the module for a more direct visual observation of the inmates.

PROCEDURAL HISTORY AND STANDARD OF REVIEW

After Gordon I , the case was remanded, and the district court permitted time for additional expert discovery. Thereafter, the individual defendants and the County renewed their separate motions for summary judgment. The district court granted summary judgment both for the individual defendants on grounds of qualified immunity and for the County for failure to show a custom or practice sufficient under Monell , 436 U.S. at 658, 98 S.Ct. 2018. The plaintiff timely appealed.

We review a district court's decision to grant summary judgment de novo. Bravo v. City of Santa Maria , 665 F.3d 1076, 1083 (9th Cir. 2011) (citation omitted). "Viewing the evidence and drawing all inferences in the light most favorable to the non-moving party, we must determine whether any genuine issues of material fact remain and whether the district court correctly applied the relevant substantive law." Id.

DISCUSSION
I. Qualified Immunity
A. Legal Framework for the Two-Prong Approach

In evaluating a grant of qualified immunity, ...

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