Shane Horton, by his Guardian Ad Litem Yvonne Horton, Plaintiff-Appellee,
City of Santa Maria; Santa Maria Police Department; Andrew Brice, Defendants-Appellants.
and Submitted February 15, 2018 Pasadena, California
from the United States District Court for the Central
District of California S. James Otero, District Judge,
Presiding D.C. No. 2:14-cv-06135-SJO-PJW
Timothy T. Coates (argued) and Jonathan H. Eisenman, Greines
Martin Stein & Richland LLP, Los Angeles, California;
Kristine L. Mollenkopf, Assistant City Attorney, Santa Maria,
California; Bruce D. Praet, Ferguson Praet & Sherman,
Santa Ana, California; for Defendants-Appellants.
N. Buchanan (argued), Law Offices of Martin N. Buchanan, San
Diego, California; Rafael Gonzalez and Jared M. Katz, Mack
Staton Mullen & Henzel LLP, Santa Barbara, California;
Joseph Robert Finnerty and Robert W. Finnerty, Girardi Keese,
Los Angeles, California; for Plaintiff-Appellee.
Before: Marsha S. Berzon and Jay S. Bybee, Circuit Judges,
and Sharon L. Gleason, [*] District Judge.
panel reversed in part and affirmed in part the district
court's order denying summary judgment to defendants in
an action brought pursuant to 42 U.S.C. § 1983 and
California law by a pretrial detainee who alleged that
defendants violated his Fourteenth Amendment right to be
safeguarded from injury and his state law right to medical
care while in custody.
being arrested, plaintiff was detained in a temporary holding
cell and left unattended for around half an hour, during
which time he attempted suicide, causing permanent and severe
injury. With his mother acting as guardian ad litem,
plaintiff filed suit alleging, in part, that defendants were
deliberately indifferent to his safety because they failed to
take appropriate action after plaintiff's mother had
warned a police officer over the phone that plaintiff was
panel held that defendant Officer Brice was entitled to
qualified immunity as a matter of law because a reasonable
officer would not have known that failing to attend to
plaintiff immediately after the phone call would be unlawful
under the law at the time of the incident. The panel
therefore reversed the district court's denial of summary
judgment in favor of Officer Brice on the § 1983 claim.
panel next held that it lacked jurisdiction to review the
district court's denial of summary judgment in favor of
the municipal defendants on the § 1983 claim. The panel
noted that when a municipal defendant's motion for
summary judgment is "inextricably intertwined" with
issues presented in the individual officers' qualified
immunity appeal, this court may exercise pendent party
appellate jurisdiction. The panel held that in this case
appellate resolution of the officer's appeal did not
"necessarily" resolve the pendent claim of
municipal liability. The panel noted that its holding that
Officer Brice was entitled to qualified immunity did not
preclude the possibility that a constitutional violation may
nonetheless have taken place, including as a result of the
collective acts or omissions of Santa Maria Police Department
officers. The panel remanded to permit the district court to
consider the claims in light of this court's recent
guidance in Castro v. County of Los Angeles, 833
F.3d 1060 (9th Cir. 2016) (en banc), and Gordon v. County
of Orange, 888 F.3d 118, 1125-26 (9th Cir. 2018).
the panel affirmed the district court's denial of summary
judgment to defendants on the state law claim brought
pursuant to California Government Code § 845.6,
concluding that there was a genuine issue of material fact as
to liability under state law.
in part, Judge Bybee joined the majority's holding that
Office Brice was entitled to qualified immunity for
plaintiff's deliberate-indifference claim under 42 U.S.C.
§ 1983 and that the panel lacked jurisdiction over the
municipal liability claim. Judge Bybee would have reversed
the district court's denial of summary judgment on the
state law claim, because he believed that there was no basis
under California law for subjecting Officer Brice to suit.
BERZON, Circuit Judge
case concerns the attempted suicide of a jailed pretrial
detainee. Shane Horton was arrested for slashing an
acquaintance's car tire and taken to the local police
department, where he was detained in a temporary holding
cell. Left unattended for around half an hour while the
officer in charge spoke to his mother and completed
paperwork, Horton removed his belt, fed it through the cell
door bars, and hanged himself, causing permanent and severe
his mother acting as guardian ad litem, Horton brought suit
under 42 U.S.C. § 1983 and California law. He contends
that the City of Santa Maria, the Santa Maria Police
Department, and several individual officers violated his
Fourteenth Amendment right to be safeguarded from injury and
his state law right to medical care while in custody. We
reverse the district court's denial of qualified immunity
on the § 1983 claims as to Officer Andrew Brice,
conclude that we lack jurisdiction to review the denial of
summary judgment on the § 1983 claims as to the
municipal defendants, and affirm the district court's
denial of summary judgment on the state law claims.
Factual and Procedural History
months leading up to his arrest, eighteen-year-old Horton had
given his mother reason to be concerned. He used drugs,
including marijuana, "Molly" (a pure form of 3,
4-Methylenedioxymethamphetamine), and phencyclidine (PCP),
and contemplated suicide. On December 13, 2012, he took PCP
and "started freaking out." He extinguished
cigarettes on his own face and hands, punched his fist
through a window, tried to cut his wrist with a piece of
broken glass, held a kitchen knife pointed at his throat,
and, his mother understood, threatened to kill himself. That
night, he was admitted to the emergency room, where he was
initially held as a suicide risk. But he specifically denied
to hospital staff any suicidal ideation, and the doctors came
to suspect "that [his problem] was mostly drugs."
Horton was discharged the morning of December 14, 2012, after
an emergency room physician and a member of the county's
Crisis and Recovery Emergency Services ("CARES")
team agreed that he was not suicidal.
two weeks later, on the morning of December 29, 2012, Horton
and his girlfriend became involved in a physical altercation.
As his girlfriend was driving away with a friend, Horton
pulled out a folding knife and slashed the tire of the
Andrew Brice and Duane Schneider soon arrived on the scene
and found Horton. Horton admitted to slashing the tire,
pointed the police to the knife, and remained calm and
cooperative as the officers arrested him for misdemeanor
Brice stayed to interview Horton's girlfriend. She
disclosed that Horton had hit her several times in the past,
chased her with a knife, and stabbed a friend in the leg. She
also revealed that he had made comments about killing police
and sympathizing with the suspects in recent mass homicides.
Officer Brice was speaking to Horton's girlfriend,
Officer Schneider transported Horton to the police station,
where he patted Horton down, confiscated his wallet and iPod,
and placed him in a temporary holding cell. Officer Schneider
did not remove Horton's jewelry or belt. As Officer
Schneider prepared to leave, Horton said he was feeling
anxious and "would really like to speak to someone"
- "not a therapist. Even you." As they talked,
Horton explained to Officer Schneider that it had been
"a really, really, really rough three weeks
straight." He described his recent drug use and the
window-breaking incident, and said that he "had the shit
beat out of me fucking thousands of times." At one
point, Officer Schneider asked if he had any medical
problems; Horton responded, "No, sir. Not that I know
of. I'm real healthy as I'm aware. I'm just -
besides feeling anxious right now and I hate being locked in
a box . . . . I don't like being in a cell."
Officer Schneider left, stating that he would
"[p]robably do a psych or something." He instructed
Horton to wave at the security camera if he needed anything.
A few minutes later, another police officer asked Horton if
he had any medical problems; Horton again said he did not.
an hour and a half later, Officer Brice returned to the
police station. Officer Brice spoke to Horton privately in an
interview room, explaining that Horton's girlfriend and
her friend both said that Horton slapped the girlfriend, and
reporting that she had a mark on her consistent with that
allegation. Officer Brice said that Horton's girlfriend
had been granted a restraining order against him for one
week, that he would be charged with felony domestic violence,
and that he had the option to post bail. At one point during
the conversation, Officer Brice asked Horton if he had any
medical conditions, and Horton once again replied, "No,
end of the interview, Officer Brice brought Horton back to
the holding cell and gave him the opportunity to call his
mother, Yvonne Horton. Horton told his mother, "I'm in
jail right now. I'm going to get booked and go to [the
main county jail in] Goleta. You can choose to be there, get
me out on bail or not. . . . I would appreciate it [if you
came to get me out on bail], but it is up to you."
Yvonne apparently said she would not bail him out, and he
ended the conversation by saying, "It's okay, Mom.
I'm sorry . . . . All right. I love you." Before
hanging up, Yvonne requested to speak privately to Officer
Brice left Horton in the cell and, out of Horton's
earshot, called Yvonne back. Officer Brice spoke with Yvonne
for ten to fifteen minutes, during which time, she stated in
her deposition, she relayed "everything" about the
December 13, 2012 incident - Horton's use of drugs, the
cigarette marks on his face and hands, the knife he held to
his throat, his hospitalization with an initial
"5150" hold for risk of suicide,  the CARES
official's conclusion that he could be discharged because
his conduct was due to drugs not suicidal ideation, and her
disagreement with that conclusion. Yvonne testified that she
also told Officer Brice that her son was depressed and
suicidal, that she was really worried about him, and that she
believed he could be helped in the judicial system. And she
recounted that she instructed Officer Brice to "please,
watch him, please look after him, please."
Brice explained to Yvonne that he was getting ready to
transport Horton to jail, which Yvonne understood to mean
that they would be transporting him "very shortly."
In response to Yvonne's pleas to look after her son,
Officer Brice reassured her that "[h]e's safe
here." When asked at deposition whether she ever told
the police officer he had to go check on Horton immediately,
she said, "I didn't think that I would have to do
that. . . . I was under the impression, after I spoke to
[him] in that way, that he would go back and check on
of going immediately back to the cell, Officer Brice first
went to complete the paperwork necessary to transport Horton
to jail and prepare the transport van. When Officer Brice
went to get Horton, approximately 27 minutes after leaving
him,  Officer Brice discovered Horton hanging
from the cell door, not moving. Officer Brice immediately
called for assistance, administered CPR, and waited for the
paramedics to arrive to transport him to the hospital. Horton
survived the suicide attempt but suffered prolonged anoxia,
resulting in severe and permanent brain
his mother acting as guardian ad litem, Horton filed suit in
October 2014 against the City of Santa Maria, the Santa Maria
Police Department, Officer Brice, Officer Schneider, and
other officers, claiming (1) negligence and (2) § 1983
liability on the part of the individual officer defendants,
(3) liability on the part of the municipal defendants,
see Monell v. Dep't of Soc. Servs., 436 U.S. 658
(1978), and (4) liability under California Government Code
§ 845.6 on the part of all defendants.
district court granted summary judgment to all defendants on
the state law negligence claim and to all officers except
Officer Brice on the § 1983 claims. As to Officer Brice,
the district court held that there is a genuine issue of fact
regarding whether Officer Brice acted with deliberate
indifference to Horton's safety after speaking with his
mother, and denied him qualified immunity. The court also
denied summary judgment to the municipal defendants on
Horton's § 1983 claim that those defendants failed
to develop and adhere to a written policy regarding suicide
detection and prevention; failed to develop and adhere to
written policies regarding the identification and evaluation
of mentally disordered detainees; and failed adequately to
train their officers on such policies. Finally, the district
court denied summary judgment to Officer Brice and the
municipal defendants on the claim under California Government
Code § 845.6, but granted summary judgment on that claim
to the other individual officers. Officer Brice and the
municipal defendants timely appealed. See Mitchell v.
Forsyth, 472 U.S. 511, 530 (1985).
Section 1983 Claim Against Officer Brice
district court concluded that there is a genuine issue of
fact regarding whether Officer Brice acted with deliberate
indifference to Horton's safety after speaking with his
mother, and denied the officer qualified immunity. Qualified
immunity protects government officials from liability for
civil damages unless their conduct violates "clearly
established statutory or constitutional rights of which a
reasonable person would have known." Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). Plaintiffs
bringing § 1983 claims against individual officers
therefore must demonstrate that (1) a federal right has been
violated and (2) the right was clearly established at the
time of the violation. Pearson v. Callahan, 555 U.S.
223, 232 (2009). We may "exercise [our] sound discretion
in deciding which of the two prongs of the qualified immunity
analysis should be addressed first." Id. at
236. Here, we begin with the second, "clearly
established" prong, for reasons that will appear.
Clearly Established Law
clearly established right is one that is sufficiently clear
that every reasonable official would have understood that
what he is doing violates that right." Isayeva v.
Sacramento Sheriff's Dep't, 872 F.3d 938, 946
(9th Cir. 2017) (quoting Mullenix v. Luna, 136 S.Ct.
305, 308 (2015)). At the time of the events in this case, the
generally applicable standard established that officers who
act with deliberate indifference to the serious medical need
of a pretrial detainee violated the detainee's
constitutional rights under the Due Process Clause of the
Fourteenth Amendment. See, e.g., Conn v. City of
Reno, 591 F.3d 1081, 1090-91 (9th Cir. 2010),
vacated, 563 U.S. 915 (2011), opinion reinstated
in relevant part, 658 F.3d 897 (9th Cir. 2011).
Ninth Circuit law at the time of the incident, Fourteenth
Amendment claims that officers acted with deliberate
indifference to the medical needs of a pretrial detainee were
governed by the same "deliberate indifference"
standard as Eighth Amendment claims for failure to prevent
harm to convicted prisoners. See Simmons v. Navajo
County, 609 F.3d 1011, 1017 (9th Cir. 2010),
overruled in part by Castro v. County of Los
Angeles, 833 F.3d 1060 (9th Cir. 2016) (en banc);
Clouthier v. County of Contra Costa, 591 F.3d 1232,
1241-43 (9th Cir. 2010), overruled by Castro, 833
F.3d 1060. That standard provided that an officer was liable
for deliberate indifference only if he "kn[ew] of and
disregard[ed] an excessive risk to inmate health or
safety" - that is, if he was "aware of facts from
which the inference could be drawn that a substantial risk of
serious harm exists" and actually drew the inference.
Simmons, 609 F.3d at 1017 (quoting Farmer v.
Brennan, 511 U.S. 825, 837 (1994)). "Deliberate
indifference thus require[d] an objective risk of harm and a
subjective awareness of that harm." Conn, 591
F.3d at 1095. (As we shall explain, that partially subjective
standard has since been revised to an entirely objective
standard for pretrial detainees. See Gordon v. County of
Orange, 888 F.3d 1118, 1125-26 (9th Cir. 2018);
Castro, 833 F.3d at 1068-71; infra pp.
principles inform our clearly established law inquiry in this
case. First, the qualified immunity inquiry "must be
undertaken in light of the specific context of the case, not
as a broad general proposition." Saucier, 533
U.S. at 201; see also Ashcroft v. al-Kidd, 563 U.S.
731, 742 (2011) ("We have repeatedly told courts . . .
not to define clearly established law at a high level of
generality."). It is therefore critical whether our case
law had, at the time of the events in this case, sufficiently
clarified when a detainee's imminent risk of suicide was
substantial enough to require immediate attention.
in Estate of Ford v. Ramirez-Palmer, we recognized
that deliberate indifference claims "depend in part on a
subjective test that does not fit easily with the qualified
immunity inquiry," which is an objective inquiry. 301
F.3d 1043, 1049 (9th Cir. 2002). Estate of Ford
concluded that even where the clearly established legal
standard requires deliberate indifference, the qualified
immunity inquiry should concentrate on the objective aspects
of the constitutional standard. That is because "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. We held that
"[i]n these circumstances, [an officer] would be
entitled to qualified immunity" under the deliberate
indifference standard. Id.
Horton must show that, given the available case law at the
time of his attempted suicide, a reasonable officer, knowing
what Officer Brice knew, would have understood that failing
to check on Horton immediately after the phone call with
Yvonne presented such a substantial risk of harm to Horton
that the failure to act was unconstitutional. We turn to the
directly applicable case law now, which is sparse.
time of Horton's incident, we had held that officers who
failed to provide medical assistance to a detainee should
have known that their conduct was unconstitutional in two
instances, neither of which resemble the facts in this case.
See Clouthier, 591 F.3d at 1244-45; Conn,
591 F.3d at 1098.
held that a mental health specialist who failed to take
adequate precautions to protect a detainee from committing
suicide was not entitled to qualified immunity. 591 F.3d at
1245. The specialist knew that the detainee was suicidal,
that he had attempted suicide multiple times, and that
another staff member had placed the detainee in a suicide
smock and warned that he needed to be "constantly
monitored throughout the day to ensure his safety."
Id. at 1244. Nevertheless, the specialist removed
the detainee from regular suicide monitoring and instructed
officers to return his regular clothes and bedding, which he
eventually used to commit suicide. Id. at 1245.
Under these facts, we concluded that "a reasonable
mental health professional could not have thought it was
lawful to remove key suicide prevention measures put in place
by a prior Mental Health staff member."
Conn, we denied qualified immunity at the summary
judgment stage to officers who, while transporting a
detainee, observed her wrap a seatbelt around her neck in an
apparent attempt to choke herself and who threatened to
commit suicide. 591 F.3d at 1098. The transporting officers
did not take the detainee to a medical center or alert
subsequent officers to the behavior; she then committed
suicide. Id. We concluded that "[w]hen a
detainee attempts or threatens suicide en route to jail, it
is obvious that the transporting officers must report the
incident to those who will next be responsible for her
custody and safety." Id. at 1102.
facts of Clouthier and Conn do not at all
resemble this case. Officer Brice's interactions with
Horton began with his initial arrest, during which Horton
remained cooperative. Officer Brice also spoke with
Horton's girlfriend, who informed him of Horton's
previous violent episodes, but did not indicate any present
suicidal intentions. At the jail, Officer Brice asked Horton
if he was having any medical problems, to which Horton
responded in the negative.
Brice did know that Horton, according to his mother, had been
suicidal two weeks before the incident and that his ...