Jonathon Castro v. County of Los Angeles

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JONATHAN MICHAEL CASTRO, No. 12-56829
Plaintiff-Appellee,
D.C. No.
v. 2:10-05425-DSF

COUNTY OF LOS ANGELES; LOS
ANGELES SHERIFF’S DEPARTMENT; OPINION
CHRISTOPHER SOLOMON; DAVID
VALENTINE, Sergeant, aka
Valentine,
Defendants-Appellants.

Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding

Argued and Submitted
December 11, 2014—Pasadena, California

Filed May 1, 2015

Before: Ronald Lee Gilman,* Susan P. Graber,
and Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Gilman;
Concurrence by Judge Callahan;
Partial Concurrence and Partial Dissent by Judge Graber

*
The Honorable Ronald Lee Gilman, Senior United States Circuit Judge
for the Sixth Circuit, sitting by designation.
2 CASTRO V. COUNTY OF LOS ANGELES

SUMMARY**

Civil Rights

The panel affirmed in part and reversed in part the district
court’s judgment, entered following a jury trial, in an action
brought under federal and state law by a pretrial detainee who
was attacked by another arrestee and suffered serious harm.

Affirming the judgment in favor of plaintiff against the
individual defendants, the panel held that defendants were not
entitled to qualified immunity because the right to be free
from violence at the hands of other inmates was well
established and there was sufficient evidence for a jury to find
that the officials were deliberately indifferent to a substantial
risk of harm to plaintiff. The panel further found that there
was sufficient evidence for the punitive damages award.

Reversing the judgment in favor of plaintiff against the
County of Los Angeles and the Los Angeles Sheriff’s
Department, the panel held that plaintiff’s claim under Monell
v. Dep’t of Soc. Servs., 436 U.S. 658, 690–71 (1978), was
legally viable but insufficiently proven. The panel held that
although the entity defendants instituted a formal policy
under Monell with regard to designing the jail’s sobering cell,
there was insufficient evidence that they had actual
knowledge of the risk to plaintiff’s safety.

The panel affirmed the jury’s future-damages award,
determining that plaintiff presented sufficient evidence

**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 CASTRO V. COUNTY OF LOS ANGELES 3

regarding the amount of his past damages from which a jury
could reasonably calculate the amount of future damages.

Concurring, Judge Callahan agreed that the judgment of
the district court against the individual defendants should be
affirmed and the judgment against the entity defendants
should be reversed. She wrote separately to explain that she
did not think that plaintiff had shown that the design of the
West Hollywood Station constituted a policy for purposes of
liability under Monell.

Concurring in part and dissenting in part, Judge Graber
joined the majority opinion as to the liability of the individual
defendants. She dissented from the holding that there was
insufficient evidence from which the jury could have
concluded that the entity defendants were deliberately
indifferent to the risk that plaintiff would be harmed by a
fellow inmate.

COUNSEL

Melinda Cantrall (argued) and Thomas C. Hurrell, Hurrell
Cantrall LLP, Los Angeles, California, for Defendants-
Appellants.

John Burton (argued), Law Offices of John Burton, Pasadena,
California; Maria Cavalluzzi, Cavalluzzi & Cavalluzzi, Los
Angeles, California; and Lawrence Lallande, Lallande Law
PLC, Long Beach, California, for Plaintiff-Appellee.
4 CASTRO V. COUNTY OF LOS ANGELES

OPINION

GILMAN, Senior Circuit Judge:

In October 2009, Jonathan Castro was arrested for being
drunk in public. He was housed in a “sobering cell” at the
Los Angeles Sheriff’s West Hollywood Station where, a few
hours after his arrest, he was savagely attacked by another
intoxicated arrestee who had been placed in the cell with him.
The officer on duty at the jail failed to respond to Castro’s
pounding on the cell door despite evidence that the officer
was well within range to hear the pounding. Castro suffered
serious harm, including a broken jaw and traumatic brain
injury.

This lawsuit was filed by Castro in the United States
District Court for the Central District of California in July
2010. He brought both federal- and state-law claims against
the County of Los Angeles, the Los Angeles County Sheriff’s
Department, and a number of John Doe defendants who were
later identified as two of his jailers. After a six-day trial, the
jury returned a verdict for Castro against both the individual
and entity defendants, awarding him over $2.6 million in past
and future damages.

The defendants then renewed their joint motion for
judgment as a matter of law, arguing that there was
insufficient evidence to support the verdict, that the
individual defendants were entitled to qualified immunity,
and that Castro’s theory of liability against the County and
the Sheriff’s Department (these two entities being hereinafter
collectively referred to as the County) was simply untenable.
The district court denied the defendants’ motion without a
written opinion. They now appeal. For the reasons set forth
 CASTRO V. COUNTY OF LOS ANGELES 5

below, we AFFIRM the judgment of the district court against
the individual defendants but REVERSE the judgment
against the County.

I. BACKGROUND

A. Assault on Castro

Castro was arrested late in the evening of October 2,
2009 for public drunkenness. The arresting officers reported
that Castro was staggering, bumping into pedestrians, and
speaking unintelligibly, so they arrested him “for his safety.”
He was transported to the West Hollywood Station and
placed in a fully walled sobering cell that was stripped of
objects with hard edges on which an inmate could hurt
himself if he lost his balance. The cell contained only a toilet
and a series of mattress pads on the floor. A short time later,
Jonathan Gonzalez was arrested after punching out a window
at a nightclub. The officers brought Gonzalez to the West
Hollywood Station, where he was placed in the same sobering
cell that housed Castro. Gonzalez’s intake forms indicated
that he was “combative” at the time he was placed in the cell.

Shortly after Gonzalez was placed in the cell, Castro
approached the door and pounded on the window in the door
for a full minute, attempting to attract an officer’s attention.
No one responded. A community volunteer at the jail, Gene
Schiff, came by approximately 20 minutes later. He noted
that Castro appeared to be asleep and that Gonzalez was
“inappropriately” touching Castro’s thigh, the latter
circumstance being in violation of jail policy. Schiff did not
enter the cell to investigate. Instead, he reported the contact
to the supervising officer, Christopher Solomon. Solomon
took no action until he heard loud sounds six minutes later.
6 CASTRO V. COUNTY OF LOS ANGELES

He rushed to the sobering cell and saw Gonzalez making a
violent stomping motion. Solomon immediately opened the
door and discovered that Gonzalez was stomping on Castro’s
head. Solomon ordered Gonzalez to step away from Castro.
Seeing that Castro was by then lying unconscious in a pool of
blood, Solomon called for medical assistance.

When the paramedics arrived, Castro was still
unconscious, in respiratory distress, and turning blue. He was
hospitalized for almost a month, then transferred to a
long-term care facility, where he remained for four years. He
currently suffers from severe memory loss and permanent
cognitive impairments. Even after his release from the
long-term care facility, Castro remains incapable of
performing simple life functions, such as cooking and
maintaining hygiene. His family is responsible for his basic
care to this day.

B. District court proceedings

After his complaint was filed, Castro substituted Solomon
and Solomon’s supervisor, Sergeant David Valentine, for the
John Doe defendants named in the original complaint.
Solomon was the jail’s officer on duty on the evening in
question and Valentine was the watch sergeant in charge of
the jail as a whole. Castro’s basic theory of liability under
42 U.S.C. § 1983 was that both the County and the individual
defendants were deliberately indifferent to the substantial risk
of harm created by housing him in the same sobering cell as
Gonzalez and by failing to maintain appropriate supervision
of the cell. The complaint also set forth a variety of state-law
claims, not one of which is raised by any party to this appeal.
 CASTRO V. COUNTY OF LOS ANGELES 7

The individual defendants moved to dismiss the claims
against them on the ground of qualified immunity, but the
district court rejected their arguments. It concluded that a
jury could find that placing an actively belligerent inmate in
an unmonitored cell with Castro constituted deliberate
indifference to a substantial risk of harm, in violation of
Castro’s constitutional rights.

The case proceeded to trial. After Castro rested his case,
the defendants moved for judgment as a matter of law on
three grounds: (1) insufficient evidence that the design of a
jail cell constitutes a policy, practice, or custom by the
County that resulted in a constitutional violation;
(2) insufficient evidence that a reasonable officer would have
known that housing Castro and Gonzalez together was a
violation of Castro’s constitutional rights; and (3) insufficient
evidence for the jury to award punitive damages. The district
court denied the motion in its entirety. Five days later, the
jury returned a verdict for Castro on all counts and awarded
him $2,605,632.02 in damages. Based on the jury’s findings,
the parties later stipulated to $840,000 in attorney fees,
$12,000 in punitive damages against Valentine, and $6,000 in
punitive damages against Solomon.

After trial, the defendants timely filed a renewed motion
for judgment as a matter of law. The trial court denied the
renewed motion without issuing a written opinion. This
timely appeal followed.
8 CASTRO V. COUNTY OF LOS ANGELES

II. ANALYSIS

A. Standard of review

We review de novo the district court’s denial of a motion
for judgment as a matter of law. Hangarter v. Provident Life
& Accident Ins. Co., 373 F.3d 998, 1005 (9th Cir. 2004). A
renewed motion for judgment as a matter of law is properly
granted only “if the evidence, construed in the light most
favorable to the nonmoving party, permits only one
reasonable conclusion, and that conclusion is contrary to the
jury’s verdict.” Pavao v. Pagay, 307 F.3d 915, 918 (9th Cir.
2002). “A jury’s verdict must be upheld if it is supported by
substantial evidence, which is evidence adequate to support
the jury’s conclusion, even if it is also possible to draw a
contrary conclusion.” Id.

In making this determination, the court must not weigh
the evidence, but should simply ask whether the plaintiff has
presented sufficient evidence to support the jury’s conclusion.
Johnson v. Paradise Valley Unified Sch. Dist., 251 F.3d 1222,
1227–28 (9th Cir. 2001). Although the court must review the
entire evidentiary record, it must view all the evidence in the
light most favorable to the nonmoving party, draw all
reasonable inferences in the favor of the nonmover, and
disregard all evidence favorable to the moving party that the
jury is not required to believe. Id. at 1227.

The defendants raise a number of issues on appeal,
ranging from discrete legal questions to disputed matters of
evidence. We first address the arguments raised by the
individual defendants, then move on to those presented by
the County.
 CASTRO V. COUNTY OF LOS ANGELES 9

B. Neither Solomon nor Valentine is entitled to qualified
immunity

Both individual defendants—Solomon and Valentine—
argue that the judgment against them should be reversed
because they are entitled to qualified immunity. The doctrine
of qualified immunity shields government officials from civil
liability under 42 U.S.C. § 1983 if “their conduct does not
violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). “Qualified immunity
balances two important interests—the need to hold public
officials accountable when they exercise power irresponsibly
and the need to shield officials from harassment, distraction,
and liability when they perform their duties reasonably.”
Pearson v. Callahan, 555 U.S. 223, 231 (2009).

To determine whether an officer is entitled to qualified
immunity, a court must evaluate two independent prongs:
(1) whether the officer’s conduct violated a constitutional
right, and (2) whether that right was clearly established at the
time of the incident. Id. at 232. These prongs may be
addressed in either order. Id. at 236.

The constitutional right at issue in this case is the right to
be free from violence at the hands of other inmates. This
right was first recognized by the Supreme Court in Farmer v.
Brennan, 511 U.S. 825 (1994). In Farmer, a male-tofemale
transgender person was placed in male housing in the federal
prison system, where she was beaten and raped by another
inmate. Id. at 830. She brought a civil rights action for
damages and an injunction, alleging that the corrections
officers had acted with deliberate indifference to her safety,
in violation of the Eighth Amendment. Id. at 830–31. The
10 CASTRO V. COUNTY OF LOS ANGELES

Supreme Court agreed with her, holding that “prison officials
have a duty . . . to protect prisoners from violence at the
hands of other prisoners” because corrections officers have
“stripped [the inmates] of virtually every means of
self-protection and foreclosed their access to outside aid.” Id.
at 833 (internal quotation marks omitted). This court has
since clarified that the right to be free from violence at the
hands of other inmates extends to inmates housed in state or
local custody. See Cortez v. Skol, 776 F.3d 1046, 1049–50
(9th Cir. 2015) (recognizing a claim based on Farmer brought
by a state prisoner).

Both Solomon and Valentine acknowledge that the duty
to protect Castro from violence was clearly established at the
time of the incident. But they argue that such a broad
definition of that duty is too general to guide this court’s
analysis. Moreover, they contend that Castro failed to present
substantial evidence to establish that they violated their duty
to protect him.

“To determine that the law was clearly established, we
need not look to a case with identical or even ‘materially
similar’ facts.” Serrano v. Francis, 345 F.3d 1071, 1077 (9th
Cir. 2003) (quoting Hope v. Pelzer, 536 U.S. 730, 739–41
(2002)). The question instead is whether the contours of the
right were sufficiently clear that a reasonable official would
understand that his actions violated that right. Id.; see also
Saucier v. Katz, 533 U.S. 194, 202 (2001).

Following the Supreme Court’s 1994 decision in Farmer,
this court has considered over 15 different failure-to-protect
claims stemming from inmate-on-inmate violence. In each
case, the court has recited the standard established by
Farmer, then proceeded to apply that standard to the facts of
 CASTRO V. COUNTY OF LOS ANGELES 11

the case before the court. The similarity of the facts—or the
lack thereof—to other post-Farmer cases has rarely entered
the discussion. See, e.g., Robinson v. Prunty, 249 F.3d 862,
866–67 (9th Cir. 2001).

Instead, the right at issue is construed simply as the right
to be protected from attacks by other inmates. This is in stark
contrast with the qualified-immunity analysis for other types
of claims, such as excessive force, in which analogies to prior
cases play a much stronger role. See Maxwell v. Cnty. of San
Diego, 708 F.3d 1075, 1082–83 (9th Cir. 2013); Winterrowd
v. Nelson, 480 F.3d 1181, 1185–86 (9th Cir. 2007);
Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d
1052, 1056–61 (9th Cir. 2003). In sum, Farmer sets forth the
contours of the right to be free from violence at the hands of
other inmates with sufficient clarity to guide a reasonable
officer. Solomon and Valentine’s argument on this point is
therefore without merit.

They next question the sufficiency of the evidence
supporting Castro’s claim of deliberate indifference. Because
Castro was a pretrial detainee, his right to be free from
violence at the hands of other inmates arises from the Fourth
Amendment rather than the Eighth Amendment. Pierce v.
Multnomah County, 76 F.3d 1032, 1042–43 (9th Cir. 1996).
Despite those different constitutional sources, the “deliberate
indifference” test is the same for pretrial detainees and for
convicted prisoners. Clouthier v. County of Contra Costa,
591 F.3d 1232, 1242–43 (9th Cir. 2010). Thus, in order to
prove that his right to be free from violence at the hands of
another inmate was violated, Castro was required to show by
a preponderance of the evidence that (1) he faced a
substantial risk of serious harm, (2) the defendants were
deliberately indifferent to that risk, and (3) the defendants’
12 CASTRO V. COUNTY OF LOS ANGELES

failure to act was a proximate cause of the harm that he
suffered. See Farmer, 511 U.S. at 847. A defendant is
deemed “deliberately indifferent” to a substantial risk of
serious harm when he knew of the risk but disregarded it by
failing to take reasonable measures to address the danger. Id.
On the verdict form, the jury specifically found that both
Solomon and Valentine were deliberately indifferent to
Castro’s plight.

Castro noted several different ways in which Solomon
and Valentine were deliberately indifferent to his risk of
harm: both decided to house him in a fully walled sobering
cell with a “combative” inmate; Solomon failed to respond to
Castro’s banging on the window in the door of the cell;
Solomon failed to respond fast enough to Gonzalez’s
inappropriate touching; and Solomon erred in delegating the
safety checks to a volunteer. We conclude that the jury could
have found Solomon and Valentine liable based on the
substantial evidence presented in support of one or more of
these theories.

1. The jury could have found that Solomon was
deliberately indifferent to a substantial risk of harm
to Castro because he disregarded Castro’s pounding
on the cell door

Castro’s most persuasive theory of deliberate indifference
with respect to Solomon stems from Solomon’s failure to
respond when Castro pounded on the door after Gonzalez was
placed in the cell. Video footage presented at trial established
that Castro pounded on the door for a full minute after
Gonzalez entered the cell. Solomon was near the cell at the
time, but testified that he did not hear the pounding. Solomon
also contends that the video footage of the event shows that
 CASTRO V. COUNTY OF LOS ANGELES 13

he “did not appear to hear any banging on the door by
plaintiff.” Three other witnesses, however, including two jail
employees, testified that one could hear simple talking from
inside the sobering cell, such that pounding would have been
easy to hear from where Solomon was standing.

Faced with this evidence, the jury could have reasonably
concluded that Solomon heard the pounding and elected not
to respond. “[A] jury may properly refuse to credit even
uncontradicted testimony.” Guy v. City of San Diego,
608 F.3d 582, 588 (9th Cir. 2010) (citing Quock Ting v.
United States, 140 U.S. 417, 420–21 (1891)). Here, the jury
was presented with circumstantial evidence that undermined
Solomon’s assertion that he did not hear the pounding.

But Solomon contends in his brief that we are free to
“disregard inferences in favor of the prevailing party where
they are belied by a video account in the record,” citing Scott
v. Harris, 550 U.S. 372, 380–81 (2007). In this case,
however, the video footage neither confirms nor refutes
Solomon’s account. The jury had the opportunity to review
both the footage and the testimony in context, and to perform
a full assessment of each witness’s credibility. Given the
testimony of three other witnesses, the jury had sufficient
evidence to conclude that Solomon heard but ignored
Castro’s attempts to attract attention. On appeal, we “may
not substitute [our] view of the evidence for that of the jury.”
Johnson v. Paradise Valley Unified Sch. Dist., 251 F.3d 1222,
1227 (9th Cir. 2001).

We thus reach the question of whether Solomon’s failure
to respond to Castro’s banging constituted deliberate
indifference. The jury determined that it did. This court has
long held that whether or not a prison official’s actions
14 CASTRO V. COUNTY OF LOS ANGELES

constitute deliberate indifference is a subjective inquiry and
a question of fact. Grenning v. Miller-Stout, 739 F.3d 1235,
1239 (9th Cir. 2014) (citing Johnson v. Lewis, 217 F.3d 726,
734 (9th Cir. 2000)). Because questions of fact are uniquely
the province of the jury, see Santos v. Gates, 287 F.3d 846,
852 (9th Cir. 2002), its determination must stand when
supported by substantial evidence, see Pavao v. Pagay,
307 F.3d 915, 918 (9th Cir. 2002).

This leads to the issue of whether Solomon’s deliberate
indifference was both an actual and a proximate cause of
Castro’s harm. See Lemire v. Cal. Dep’t of Corr. & Rehab.,
726 F.3d 1062, 1074 (9th Cir. 2013) (holding that “plaintiffs
alleging deliberate indifference must also demonstrate that
the defendants’ actions were both an actual and proximate
cause of their injuries”). Actual causation is “purely a
question of fact,” Robinson v. York, 566 F.3d 817, 825 (9th
Cir. 2009), and the jury determined that Solomon’s deliberate
indifference was in fact one of the causes of Castro’s harm.

But Solomon argues that this finding is unsupported by
the evidence because Castro did not appear to be injured
during a safety check performed 22 minutes after the
pounding stopped. His proposed restriction on the relevant
timeline for causation, however, does not comport with this
court’s prior rulings. See, e.g., Conn v. City of Reno,
591 F.3d 1081, 1098–1101 (9th Cir. 2010)) (holding that a
corrections officer’s failure to respond to warnings of harm
could be an actual cause of that inmate’s suicide 48 hours
later), vacated, 131 S. Ct. 1812 (2011), reinstated in relevant
part, 658 F.3d 897 (9th Cir. 2011). Because Solomon has
presented no compelling reason to adopt his proposed
arbitrary time limitation, we decline to do so. The jury’s
 CASTRO V. COUNTY OF LOS ANGELES 15

verdict on actual causation is supported by sufficient evidence
to remain undisturbed.

“‘Once it is established that the defendant’s conduct has
in fact been one of the causes of the plaintiff’s injury, there
remains the question whether the defendant should be legally
responsible for the injury.’” Id. at 1100 (quoting White v.
Roper, 901 F.2d 1501, 1506 (9th Cir. 1990)). A corrections
officer will be held legally responsible for an inmate’s
injuries if the officer’s actions are a “moving force” behind a
series of events that ultimately lead to a foreseeable harm,
even if other intervening causes contributed to the harm. Id.
at 1101. If reasonable persons could differ over the question
of foreseeability, that issue should be left to the jury. Id.

This court’s prior cases are instructive. In Conn, for
example, this court found that a corrections officer’s failure
to respond to an inmate’s attempt to choke herself and to her
subsequent threats of suicide could be considered a proximate
cause of her suicide two days after the threats, even though
she was subjected to several medical examinations between
the time of the threats and the time of her death. Id. at
1101–02. The question of foreseeability was left to the jury.
Id. Similarly, the court in White concluded that a corrections
officer’s decision to forcibly place an inmate (the plaintiff)
into a cell with another, violent inmate could be considered
a “moving force” behind the injury that the plaintiff suffered
when he attempted to run, such that the question should have
been sent to a jury. White, 901 F.2d. at 1506. Here, the jury
found that Solomon’s deliberate indifference was one of the
causes of Castro’s harm. Leaving that decision to the jury is
in concert with this court’s prior opinions.
16 CASTRO V. COUNTY OF LOS ANGELES

Farmer clearly established that a corrections officer has
a duty to act to protect one inmate from violence at the hands
of another. The jury was presented with sufficient evidence
to find that Solomon was aware of but disregarded Castro’s
attempts to alert Solomon to the danger faced by Castro. And
the jury determined that Solomon’s deliberate indifference
was both an actual and a proximate cause of Castro’s harm.
Even if we might have reached a different conclusion when
considering the totality of the circumstances, there is
sufficient evidence to support the jury’s verdict on this issue.

2. The jury could have found that Valentine was
deliberately indifferent to a substantial risk of harm
to Castro when he placed Gonzalez in Castro’s cell

We next turn to Sergeant Valentine. The parties agree
that Valentine may be held liable only for his own actions.
Vicarious liability does not apply to claims brought under
§ 1983, so Valentine may not be held independently
responsible for the actions of his subordinates. See Ashcroft
v. Iqbal, 556 U.S. 662, 676 (2009). Valentine was not in the
immediate vicinity of the sobering cell for most of the events
at issue in this case. The only relevant event for which he
was present was the initial decision to house Gonzalez in the
sobering cell with Castro, so we will focus our analysis on
that decision.

Valentine argues that he is entitled to qualified immunity
because a reasonable officer at the time of the incident would
not have known that housing Gonzalez in the same cell as
Castro would violate Castro’s constitutional rights. He relies
heavily on Estate of Ford v. Ramirez-Palmer, 301 F.3d 1043
(9th Cir. 2002), to support this argument. In Ford, a group of
prison officials decided to house the plaintiff with another
 CASTRO V. COUNTY OF LOS ANGELES 17

inmate who had been classified as a “predator” after several
past incidents of assault on his cellmates. Id. at 1046–47.
Two days later, the “predator” inmate attacked and killed the
plaintiff. Id. at 1047.

The predatory inmate in Ford, however, “had been
successfully double-celled for years with other inmates” and
had not been recommended for “single-celling” by the prison
staff. Id. at 1051. Moreover, the plaintiff and the predator in
Ford consented to be housed together. Id. at 1047. They had
previously been housed together without incident, and there
was no history of violence between them. Id. Based on that
history, this court found that “it would not be clear to a
reasonable prison official when the risk of harm from
double-celling . . . changes from being a risk of some harm to
a substantial risk of serious harm.” Id. at 1051. (emphases in
original). The court therefore held that the official was
entitled to qualified immunity. Id. at 1053.

Ford’s central holding is that an officer is entitled to
qualified immunity when the transition from a risk of some
harm to a substantial risk of serious harm would not have
been clear to a reasonable prison official. “[T]he qualitative
difference between the degree of risk that will result in
liability under the Eighth Amendment’s standard, and that
which will not, is a fact-bound inquiry,” requiring deference
to the trier of fact. A.D. v. Cal. Highway Patrol, 712 F.3d
446, 455 n.4 (9th Cir. 2013). Here, a jury has already
weighed in and found that Valentine was aware of and
disregarded not merely a risk of some harm, but a substantial
risk of serious harm to Castro.

Ford was not a case of two intoxicated strangers being
thrown together in the middle of the night, but rather a calm,
18 CASTRO V. COUNTY OF LOS ANGELES

reasoned decision made with the input of all the affected
parties. Faulting a prison official for disregarding some risk
of harm is difficult when the victim himself consented to the
risk. Castro, on the other hand, did not consent to being
housed with Gonzalez. Gonzalez and Castro had no history
together, so Valentine had no basis to conclude that the risk
of an altercation was minimal. Although Gonzalez had a
lesser history of violence in general than the predator inmate
in Ford, Gonzalez’s combative nature when placed in the cell
was in no way mitigated by any prior interaction with Castro.

At the end of the day, this is a fact-specific inquiry. The
jury heard evidence that Gonzalez presented a sufficient
threat to cause him to be supervised by two officers at all
times following his arrest, one of whom was consistently in
contact with him. They also heard that, pursuant to jail policy,
combative inmates such as Gonzalez were to be housed
separately from inmates like Castro, specifically to avoid this
type of altercation. The jury was further informed that
separate cells were available but left unused that evening.

This evidence was sufficient to allow the jury to find that
Valentine knew of but disregarded a substantial risk of
serious harm to Castro, and we find no reason to disturb that
finding. See id. at 459 (“[P]ost-verdict, a court must apply the
qualified immunity framework to the facts that the jury found
(including the defendant’s subjective intent).”). Such a
conclusion does not run afoul of this court’s holding in Ford
because of the key factual differences between the two cases.

As with Solomon, the final question then becomes
whether Valentine’s actions were both an actual and a
proximate cause of Castro’s harm. The jury determined that
they were and, for the reasons discussed above, we will not
 CASTRO V. COUNTY OF LOS ANGELES 19

set aside that determination. Valentine is therefore not
entitled to qualified immunity and may be subjected to
liability for his personal involvement in the decision to house
Gonzalez and Castro together.

C. For the purpose of awarding punitive damages, no
additional evidence is required to make a finding of
“reckless disregard” when a finding of “deliberate
indifference” has been made

The individual defendants cursorily argue that the district
court’s award of punitive damages must be reversed because
the evidence does not support such an award. Although the
parties stipulated to the eventual amount of the punitive
damages entered ($12,000 against Valentine and $6,000
against Solomon), the defendants argued in both their pre-
and post-verdict motions for judgment as a matter of law that
there was insufficient evidence to support a punitive-damages
award. Castro counters that, after hearing the officers testify,
the jury might have determined that they demonstrated
callousness by their lack of remorse.

Punitive damages may be assessed in § 1983 actions
“when the defendant’s conduct is shown to be motivated by
evil motive or intent, or when it involves reckless or callous
indifference to the federally protected rights of others.”
Smith v. Wade, 461 U.S. 30, 56 (1983). “[T]his threshold
applies even when the underlying standard of liability for
compensatory damages is one of recklessness,” id., because
to award punitive damages, the jury must make both a factual
determination that the threshold was met and “a moral
judgment” that further punishment was warranted, id. at
52–53 (recognizing that where the underlying standard of
liability is recklessness, a tortfeasor may be subject to both
20 CASTRO V. COUNTY OF LOS ANGELES

compensatory and punitive damages without any additional
culpable conduct). The decision to impose such sanctions is
“within the exclusive province of the jury.” Runge v. Lee,
441 F.2d 579, 584 (9th Cir. 1971).

The precise distinction between “deliberate indifference”
and “reckless or callous indifference” remains an open
question. As discussed above, “deliberate indifference” is
defined in this circuit as “the conscious choice to disregard
the consequences of one’s acts or omissions.” See 9th Cir.
Civ. Jury Instr. 9.7 (2007). Furthermore, when the Supreme
Court articulated the deliberate-indifference standard for
failure-to-protect claims in Farmer, it defined the standard as
one of criminal recklessness. See Farmer, 511 U.S. at
837–39. The circular nature of these definitions gives rise to
the inference that the terms are synonymous. Juries in these
cases thus have the discretion to impose punitive damages if
they believe further punishment above and beyond
compensatory damages is appropriate, without having to
make any additional factual findings. See Smith, 461 U.S. at
56.

As described above, the jury heard sufficient evidence
here to find that both individual defendants were deliberately
indifferent. Accordingly, it was also free to find that the
individual defendants’ actions constituted reckless or callous
indifference, opening up the possibility of punitive damages.
The jury rendered such a judgment here. Because this
decision is “within the exclusive province of the jury” so long
as the legal prerequisites are met, we will allow the lower
court’s punitive-damage award to stand. See Runge, 441 F.2d
at 584.
 CASTRO V. COUNTY OF LOS ANGELES 21

D. Castro’s Monell claim is legally viable but
insufficiently proven

We turn next to the issues raised by the County in this
appeal. The County argues that the verdict against it should
be reversed for the following three reasons: (1) the Eleventh
Amendment bars a finding of liability; (2) if Castro’s theory
of liability is based on the County’s having an informal policy
that violated his constitutional rights, then his theory fails
because there was no evidence presented of any similar prior
incidents; and (3) if Castro’s theory of liability is based on the
County’s having a formal policy that violated his
constitutional rights, then his theory is legally untenable.

We begin our analysis by addressing a few fundamental
points regarding municipal liability under 42 U.S.C. § 1983.
The first point is that although § 1983 imposes liability only
on “persons” who, under color of law, deprive others of their
constitutional rights, the Supreme Court has construed the
term “persons” to include municipalities such as the County.
See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690–91
(1978). A municipality is responsible for a constitutional
violation, however, only when an “action [taken] pursuant to
[an] official municipal policy of some nature” caused the
violation. Id. at 691. This means that a municipality is not
liable under § 1983 based on the common-law tort theory of
respondeat superior. Id. On the other hand, the official
municipal policy in question may be either formal or
informal. City of St. Louis v. Praprotnik, 485 U.S. 112, 131
(1989) (plurality opinion) (acknowledging that a plaintiff
could show that “a municipality’s actual policies were
different from the ones that had been announced”); id. at 138
(Brennan, J., concurring) (stating that municipal policies may
be formal or informal).
22 CASTRO V. COUNTY OF LOS ANGELES

A formal policy exists when “a deliberate choice to
follow a course of action is made from among various
alternatives by the official or officials responsible for
establishing final policy with respect to the subject matter in
question.” Pembaur v. City of Cincinnati, 475 U.S. 469, 483
(1986) (plurality opinion). When pursuing a Monell claim
stemming from a formal policy, a plaintiff must prove that the
municipality “acted with the state of mind required to prove
the underlying violation.” Tsao v. Desert Palace, Inc.,
698 F.3d 1128, 1143–44 (9th Cir. 2012) (internal quotation
marks omitted) (explaining that the plaintiff must prove that
the municipal defendants acted with deliberate indifference,
the same standard that a plaintiff has to establish in a § 1983
claim against an individual defendant).

An informal policy, on the other hand, exists when a
plaintiff can prove the existence of a widespread practice that,
although not authorized by an ordinance or an express
municipal policy, is “so permanent and well settled as to
constitute a custom or usage with the force of law.”
Praprotnik, 485 U.S. at 127 (internal quotation marks
omitted). Such a practice, however, cannot ordinarily be
established by a single constitutional deprivation, a random
act, or an isolated event. Christie v. Iopa, 176 F.3d 1231,
1235 (9th Cir. 1999). Instead, a plaintiff such as Castro must
show a pattern of similar incidents in order for the factfinder
to conclude that the alleged informal policy was “so
permanent and well settled” as to carry the force of law. See
Praprotnik, 485 U.S. at 127.

The County’s first two arguments can be quickly and
easily addressed. First, the claim that the County is protected
from suit by the Eleventh Amendment was squarely
considered and rejected by this court in Jackson v. Barnes,
 CASTRO V. COUNTY OF LOS ANGELES 23

749 F.3d 755, 764–65 (9th Cir. 2014), cert. denied, 135 S. Ct.
980 (2015) (holding that a sheriff’s department is a county
actor when it investigates crime and supervises a jail, and
thus is not protected by the Eleventh Amendment’s blanket
of immunity for state officials). The County therefore cannot
seek refuge behind the Eleventh Amendment. Second, and in
the County’s favor, the record is devoid of any similar
incident to that suffered by Castro. He thus failed to establish
that the County had an informal policy in relation to the
sobering cell that caused him harm. The County’s liability
thus hinges on its final argument, which boils down to
(1) whether the design of the sobering cell constitutes a
formal County policy and, if so, (2) whether the County was
deliberately indifferent to the harm that befell Castro as a
result of that formal policy.

1. The jail’s design was a deliberate choice by the
County and thus a formal policy

We cannot envision how a municipality can design a jail
without making “a deliberate choice . . . from among various
alternatives.” See Pembaur, 475 U.S. at 483. Construction
projects of any variety involve a series of such choices based
on aesthetics, functionality, budget, and other factors. One
would assume that for any given construction project,
including jails, the municipality’s governing body—or a
committee that it appoints to act in its stead—reviews bids,
considers designs, and ultimately approves a plan for the
facility and allocates funds for its construction. These
choices are sufficient, in our opinion, to meet the definition
of a formal municipal policy as set forth in Pembaur.

We are unpersuaded by the cases cited by the County in
support of its argument to the contrary. See Molton v. City of
24 CASTRO V. COUNTY OF LOS ANGELES

Cleveland, 839 F.2d 240, 246 (6th Cir. 1988); Elliott v.
Cheshire Cnty., 750 F. Supp. 1146, 1156 (D. N.H. 1990),
aff’d in part and vacated in part, 940 F.2d 7 (1st Cir. 1991);
Shouse v. Daviess Cnty., No. 4:06-cv-144-M, 2009 WL
424978, at *8 (W.D. Ky. Feb. 19, 2009) (unpublished);
Richardson v. Dailey, No. 925996, 1994 WL 879483, at *3
(Mass. Super. Ct. Sept. 29, 1994) (unpublished), aff’d,
424 Mass. 258 (1997). Of these cases, Molton is the only one
to provide more than a cursory analysis of the jail-
design-as-policy issue.

In Molton, an inmate hung himself by his shirt in his cell
while his fellow inmates screamed for help. 839 F.2d at
242–43. The administrator of the decedent’s estate sued the
city under § 1983, alleging that the jail was defectively
designed, creating a substantial risk of suicides. Id. at 243.
The jury returned a verdict in favor of the estate. Id. On
appeal, the city argued that the estate had failed to prove the
existence of a municipal policy that caused the suicide. Id. at
247. The estate responded by pointing out several factors
contributing to his injury that were “inherently matters of city
policy,” including the operation of a jail with a cell block that
was too remote for easy supervision, the failure to install an
audio communication system between the cell block and the
office area, and the failure to modify cell architecture to make
suicides less likely. Molton, 839 F.2d at 246.

In ruling against the estate, the Sixth Circuit found two
problems with the estate’s argument: (1) Supreme Court
caselaw requires a plaintiff to identify a “deliberate and
discernible city policy” rather than a series of vague issues
with the way the city runs its jail, and (2) the evidence
produced by the estate supported, at most, a finding that the
city acted negligently in designing the jail. Id. The court in
 CASTRO V. COUNTY OF LOS ANGELES 25

Molton concluded that the city’s “failure to build a
suicide-proof jail cell” did not constitute “a deliberate choice
to follow a course of action” that would be required to impose
Monell liability. Id. (internal quotation marks omitted).
Elliott, Shouse, and Richardson relied on Molton in reaching
similar conclusions.

Molton, however, did not address the series of deliberate
choices made by the city that went into the design of the jail
itself. See id. The Sixth Circuit instead considered the
“deliberate choice” question only with regard to whether the
design was deliberately indifferent to a risk to the inmates (as
opposed to whether the design was simply negligent). Id.

To the contrary, we conclude that the question of whether
the design of a jail can lead to a constitutional violation (i.e.,
whether it constituted deliberate indifference on the part of
the municipality) is a separate question from the issue of
whether the design can be considered a formal policy for
Monell purposes (i.e., whether the design was a deliberate
choice made by a policymaker among a series of
alternatives). With all due respect to our sister circuit, we
cannot ignore the plethora of deliberate choices that a
municipality makes in designing a jail, and we conclude that
those choices render the design a formal municipal policy for
the purpose of Monell liability.

The design of a jail, in sum, is the result of a series of
deliberate choices made by the municipality that built it. In
this case, the County does not contest that it was responsible
for the design and operation of the West Hollywood Station.
We therefore hold that the County instituted a formal policy
under Monell with regard to the jail’s sobering cell.
26 CASTRO V. COUNTY OF LOS ANGELES

2. To find that a municipality was deliberately
indifferent to a risk, a plaintiff must prove that the
municipality had actual knowledge of that risk

Having determined that the County’s design of the West
Hollywood Station’s sobering cell constituted a formal
municipal policy, we turn next to the issue of whether that
policy violated Castro’s constitutional rights. Castro alleged
that the County’s policy deprived him of the same
constitutional right that was violated by the individual
defendants—his right to be free from violence at the hands of
other inmates. As with the individual defendants, Castro
must demonstrate that (1) he faced a substantial risk of
serious harm, (2) the County, knowing of the risk, showed
deliberate indifference by failing to take reasonable corrective
measures, and (3) the County’s failure to mitigate the risk
was a proximate cause of the harm that he suffered. See
Farmer, 511 U.S. at 828, 842.

The critical question in this case is whether the County
had knowledge of the risk. At trial, Castro presented
evidence establishing that the state of California had in place
a regulation aimed at preventing the very type of harm
suffered by Castro. Title 24 of California’s Minimum
Standards for Local Detention Facilities defines a “sobering
cell” as “an initial ‘sobering up’ place for arrestees who are
sufficiently intoxicated from any substance to require a
protected environment to prevent injury by falling or
victimization by other inmates.” Cal. Code Regs. tit. 15,
§ 1006 (emphasis added). In addition, California’s Minimum
Standards for Adult Detention Facilities provides that “there
shall be an inmate- or sound-actuated audio monitoring
system in . . . sobering cells . . . which is capable of alerting
 CASTRO V. COUNTY OF LOS ANGELES 27

personnel who can respond immediately.” Id. tit. 24,
§ 1231.2.22 (emphasis added).

The plain text of this regulation clearly indicates that the
state regulators were concerned about inmate-on-inmate
violence and required counties to install a compliant
audio-monitoring system in order to ensure that the inmates
could easily summon help. West Hollywood Station’s
sobering cell did not have such an audio-monitoring system
in place.

Castro argues that, because of the regulation, the County
knew of the risk that inmates in a sobering cell face from
other inmates but disregarded that risk by failing to take the
precautions required by the regulations. The County, on the
other hand, argues that there was no evidence presented at
trial establishing that it was aware of the regulation. In the
absence of such evidence, the County contends that no
reasonable jury could have concluded that it knew of the risk
to Castro.

Both sides have muddled the issue of knowledge by
failing to distinguish between actual and constructive
knowledge. The courts have long recognized a critical
distinction between the knowledge that a reasonable person
should have had in a given situation and the knowledge that
a particular defendant did in fact have in the same situation.
See, e.g., Han v. United States, 944 F.2d 526, 530 (9th Cir.
1991) (reversing the grant of summary judgment in favor of
the IRS because the taxpayer had only constructive
knowledge rather than actual knowledge of a lien on his
property); McGinn v. City of Omaha, 352 N.W.2d 545, 547
(Neb. 1984) (per curiam) (holding that a city could be held
liable for personal injuries sustained as a result of its
28 CASTRO V. COUNTY OF LOS ANGELES

negligence, even in the absence of actual knowledge, if it had
the knowledge that a reasonable person would have possessed
under the circumstances). Constructive knowledge is an
objective standard, see Rost v. United States, 803 F.2d 448,
451 (9th Cir. 1986), whereas actual knowledge is a subjective
standard, see Bus. Guides, Inc. v. Chromatic Commc’ns
Enterps., Inc., 892 F.2d 802, 810 (9th Cir. 1989), aff’d,
498 U.S. 533 (1991).

We fully agree with Castro that a municipality should be
aware of (and abide by) applicable state regulations
governing its conduct. Although the Supreme Court has
concluded that individual officers are not deemed to have
knowledge of the “voluminous, ambiguous, and
contradictory” regulations governing their on-the-job
conduct, Davis v. Scherer, 468 U.S. 183, 196 (1984), the
reasoning behind that conclusion does not apply to
municipalities with equal force. The Davis Court was
concerned with protecting officers who “must often act
swiftly and firmly,” without the time or luxury for “an
extensive inquiry into . . . the applicability and importance of
the rule at issue” and “the possible legal consequences of
their conduct.” Id. at 195–96.

A municipality’s decision-making process will, in
contrast, rarely if ever be so time-sensitive or pressured.
Expecting municipal entities to take the time to become
aware of applicable state regulations is essential to effective
governance. See Cannon v. Univ. of Chi., 441 U.S. 677,
696–97 (1979) (“It is always appropriate to assume that our
elected representatives, like other citizens, know the law[.]”).
The County may therefore be deemed to have constructive
knowledge of the risk that Castro faced in this case because
there was a state regulation in effect that clearly identified the
 CASTRO V. COUNTY OF LOS ANGELES 29

risk and required certain steps to mitigate the potential for
danger.

Under Farmer, however, the constructive-knowledge
standard, based on an objective look at what a reasonable
person should have known, is insufficient to support a finding
of deliberate indifference. The Court specifically rejected
such a test for knowledge of a risk under the Eighth
Amendment, opting instead for an inquiry into the subjective
state of mind of the defendant. Farmer, 511 U.S. at 838.

In order to be deemed “deliberately indifferent,” the Court
concluded that an official “must both be aware of facts from
which the inference could be drawn that a substantial risk of
serious harm exists, and he must also draw the inference.” Id.
at 837. In other words, “an official’s failure to alleviate a
significant risk that he should have perceived but did not,
while no cause for commendation, cannot under our cases be
condemned as the infliction of punishment.” Id. at 838. The
same reasoning applies to a municipality.

Farmer recognized that “conceptual difficult[ies may]
attend any search for the subjective state of mind of a
governmental entity,” id. at 841, but these difficulties are not
insurmountable. A plaintiff could take any of several paths
to prove that a municipality had actual knowledge of a
substantial risk of serious harm to inmates. For example,
where, as here, there is an applicable regulation that should
have put the municipality on notice of the risk, a plaintiff
could offer evidence that the municipality had been notified
that it was out of compliance with the regulation. Other
evidence, such as meeting minutes or other records, that the
regulation was discussed at planning meetings would also
suffice, as would evidence that similar incidents had occurred
30 CASTRO V. COUNTY OF LOS ANGELES

and been brought to the municipality’s attention. Regardless
of its form, however, some evidence of actual knowledge is
required to find that a municipality had the requisite
“consciousness of a risk” to be held deliberately indifferent.
Id at 840.

No such evidence was presented in this case. As the
County points out, the only evidence proffered by Castro to
establish that the County knew of the risk to Castro’s safety
was the existence of the state regulation. But this evidence,
for the reasons discussed above, establishes only constructive
knowledge on the part of the County. Per Castro’s own brief,
he decided for “tactical reasons” not to present evidence of
similar incidents in the past, and he offered no evidence that
the regulation in question had ever been specifically brought
to the County’s attention.

Nor are we persuaded by our dissenting colleague’s
argument that the County Council’s wholesale adoption of
numerous chapters of the California Building Code, one of
which contains the state regulation in question, “provides
even more evidence that the county knew of that risk.”
Dissenting op. at 38. In the absence of any proof that this
particular regulation was ever brought to the attention of a
County policymaker with authority over the jail, the fact that
no one found this proverbial “needle in a haystack” simply
confirms our view that we are dealing with constructive
knowledge rather than actual knowledge on the part of the
County.

The question of what constitutes deliberate indifference
is one of fact, such that we generally owe the jury’s
conclusion substantial deference. Grenning v. Miller-Stout,
739 F.3d 1235, 1239 (9th Cir. 2014) (citing Johnson v. Lewis,
 CASTRO V. COUNTY OF LOS ANGELES 31

217 F.3d 726, 734 (9th Cir. 2000)). But without any evidence
whatsoever that the County had actual knowledge of the risk
to Castro’s safety, the verdict against the County cannot
stand.

E. Castro presented sufficient evidence regarding the
amount of his past damages from which the jury could
reasonably calculate the amount of future damages

The defendants’ final argument is that the jury’s
future-damages award of $600,000 should be reversed
because it was based on pure speculation as to the amount of
such damages. We find this argument to be without merit.

The parties agree that California law applies for purposes
of calculating damages in this case. See Sullivan v. Little
Hunting Park, Inc., 396 U.S. 229, 256 (1969) (directing lower
courts to “look to state law to find appropriate remedies when
the applicable federal civil rights law is ‘deficient in the
provisions necessary to furnish suitable remedies’” (quoting
42 U.S.C. § 1988(a))). Under California law, an award of
damages may include an amount to compensate for related
expenses that are “certain to result in the future.” Cal. Civ.
Code § 3283. “However, the ‘requirement of certainty . . .
cannot be strictly applied where prospective damages are
sought, because probabilities are really the basis for the
award.’” Behr v. Redmond, 123 Cal. Rptr. 3d 97, 111 (Cal.
Ct. App. 2011), as modified Mar. 25, 2011 (quoting 6 Witkin,
Summary of Cal. Law Torts, § 1552 (10th ed. 2005)).

The defendants’ repeated assertions that Castro has “set
forth no admissible evidence to establish any foundation
whatsoever for the amount of future expenses” are simply not
supported by the record. Castro submitted the billing records
32 CASTRO V. COUNTY OF LOS ANGELES

from both his cognitive assistant and his treating
psychologist, and he also submitted a chart detailing the
charges for the almost $1 million in medical expenses that he
had already incurred. He also proffered several medical
experts who testified to his need for ongoing medical care and
described the approximate scope of that care.

California courts have consistently approved damage
awards for future medical expenses based on this type of
evidence. See, e.g., id. at 113 (approving a future-damages
award based on the cost of a medication as established by
past records multiplied by the plaintiff’s estimated life span);
Cooper v. Chambi, No. G028318, 2002 WL 31086128, at *3
(Cal. Ct. App. Sept. 9, 2002) (unpublished) (finding that past
bills for psychological services totaling $125 per week could
provide a jury with reasonable certainty as to the future cost
of psychological services, but could not alone sustain a $1.5
million future-damages award).

The defendants also object to the future-damages award
because they argue that it was not reduced to present value.
They have a point to the extent that such an award is subject
to a present-value reduction. See Fox v. Pac. Sw. Airlines,
184 Cal. Rptr. 87, 89 (Cal. Ct. App. 1982) (holding that
“recovery for lost future benefits must be discounted to
present value”) (citing Bond v. United R.R.s of S.F., 113 P.
366, 372 (Cal. 1911)). But they overstate the role of experts
in establishing the appropriate discount. The California Civil
Jury Instruction that they cite simply states that expert
testimony is “usually” required to accurately establish present
values, and Niles v. City of San Rafael, 116 Cal. Rptr. 733,
740 (Cal. Ct. App. 1974), on which they rely, similarly
observes that actuarial testimony is “frequently” used for this
purpose.
 CASTRO V. COUNTY OF LOS ANGELES 33

However common the use of experts may be, no
California court has ever held that expert testimony is an
absolute requirement in order to establish the present value of
a future-damages award. The district court instructed the jury
to reduce its award of future damages to present value
according to the Ninth Circuit’s Model Civil Jury
Instructions, and we have no reason to believe that the jury
ignored that instruction, particularly because the jury awarded
only slightly more than half of the amount requested.

In sum, although no expert testified as to the precise rate
of reduction to be applied, the court instructed the jury to
reduce its award for future damages to present value, and “we
must assume that the jury followed the court’s instructions.”
See Gray v. Shell Oil Co., 469 F.2d 742, 752 (9th Cir. 1972).
Our assumption seems fully justified by the fact that the
future damages awarded to Castro reflected a 42 percent
discount from the amount requested. Particularly in light of
this discount, we are not persuaded that this is the appropriate
case in which to make the use of experts to establish the
present value of future damages an absolute requirement
under California law. We therefore decline to disturb the
award for future damages.

III. CONCLUSION

For all the reasons set forth above, we AFFIRM the
judgment of the district court against the individual
defendants but REVERSE the judgment against the County.
Each party shall bear its own costs.
34 CASTRO V. COUNTY OF LOS ANGELES

CALLAHAN, Circuit Judge, concurring:

I agree with the majority that the judgment of the district
court against the individual defendants should be affirmed
and the judgment against the County reversed. I write
separately to explain that I do not think that Castro has shown
that the design of the West Hollywood Station constitutes a
policy for purposes of liability under Monell v. Department
of Social Services of New York., 436 U.S. 658 (1978).

I do not deny that pursuant to Pembaur v. City of
Cincinnati, 475 U.S. 469, 483 (1986), the design of a jail in
some circumstances, might be held to constitute a deliberate
choice or policy. However, I disagree with the suggestion
that the fact that the jail was constructed is sufficient in itself
to “meet the definition of a formal municipal policy.” Maj.
at 23. Rather, I agree with the Sixth Circuit’s approach in
Molton v. City of Cleveland, 839 F.2d 240, 246 (6th Cir.
1988), that “Pembaur[] require[s] proof of a deliberate and
discernible city policy to maintain . . . inadequately designed
and equipped jails; not mere speculation that such matters are
‘inherently matters of city policy.’”

Here, the record contains no evidence to suggest that the
design and construction of the West Hollywood Station
implicated a relevant policy choice. The record indicates that
the West Hollywood Station is many decades old. Municipal
facilities are built to suit the needs of their times, according
to the then existing applicable statutes and regulations. Other
than their mere existence, there is no evidence in this record
to indicate that the relevant design features of the West
Hollywood Station were policy choices of the County.
Although both the County and Castro presented evidence of
measures that could be taken to increase supervision in the
 CASTRO V. COUNTY OF LOS ANGELES 35

sobering cell, no evidence was presented that the County
specifically considered these measures or made a deliberate
choice to reject them at the time of the facilities’ construction,
or even at any time thereafter. Nor was any evidence
presented, such as past instances of injury or modifications
made since the Station’s construction, that might support an
inference that the County considered but rejected such design
features.

Accordingly, I would hold that Castro has failed to show
that the design of the West Hollywood Station constituted a
formal policy under Monell, 436 U.S. 658. Nonetheless, I
concur in the opinion as I agree that even if there was a
formal policy, Castro has failed to show the requisite
deliberate indifference for Monell liability. See Maj. at
23–31.

GRABER, Circuit Judge, concurring in part and dissenting in
part:

I join the majority opinion, with the exception of Part
D.2. I respectfully dissent from the holding that there was
insufficient evidence from which the jury could have
concluded that the entity Defendants were deliberately
indifferent to the risk that Plaintiff would be harmed by a
fellow inmate.

In Farmer v. Brennan, 511 U.S. 825, 841 (1994), the
Supreme Court acknowledged that “considerable conceptual
difficulty would attend any search for the subjective state of
mind of a governmental entity, as distinct from that of a
36 CASTRO V. COUNTY OF LOS ANGELES

governmental official.” This case squarely presents that
considerable conceptual difficulty.

We previously have acknowledged that certain types of
evidence could show that an entity possesses subjective
knowledge:

First, it is certainly possible that
a municipality’s policies explicitly
acknowledge that substantial risks of serious
harm exist. Second, numerous cases have
held that municipalities act through their
policymakers who are, of course, natural
persons, whose state of mind can be
determined.

Gibson v. County of Washoe, 290 F.3d 1175, 1188 n.10 (9th
Cir. 2002). But those two types of evidence are not the only
kinds of evidence that can show such knowledge. Here, as
the majority explains, state regulations applicable to the
County identify the risk of the precise harm that befell
Plaintiff in this case and mandate a particular audio-
monitoring system in order to prevent that harm. I would
hold, as a matter of law, that entities have actual knowledge
of state regulations governing their conduct.

The majority contends that such a holding impermissibly
equates actual knowledge with constructive knowledge. Maj.
op. at 27–28. It is true that the Supreme Court has written
that, in actions against individuals and entities alike, a
plaintiff must establish that the defendant possessed the “state
of mind required to prove the underlying violation.” Bd. of
Cnty. Comm’rs v. Brown, 520 U.S. 397, 405 (1997). But I do
not think that the Court meant that we must ignore salient
 CASTRO V. COUNTY OF LOS ANGELES 37

differences between individuals and entities. Because an
entity does not have an actual mind, the question of what the
entity “knows” is different from the question of what an
individual “knows.” Cf. United States v. 7326 Highway 45
N., 965 F.2d 311, 316 (7th Cir. 1992) (“As a legal fiction, a
corporation cannot ‘know’ like an individual ‘knows.’”).1
The majority persuasively explains why entities should be
held to a higher standard than individuals when it comes to
knowledge of the law governing their conduct. Maj. op. at
27–28. I would hold that where, as here, positive law
applicable to the entity speaks directly to the risk of harm that
befell a plaintiff, the entity defendant has the requisite
knowledge of that risk to disregard it deliberately.

At the time of the attack at issue in this case, the Los
Angeles County Code “adopted by reference and
incorporated into . . . the Los Angeles County Code as if fully
set forth below” certain chapters of the California Building
Code, including chapter 12, which includes the regulation
requiring that sobering cells be equipped with an audio-

1
Were we writing on a blank slate, one possible resolution of the
conceptual difficulty here would be to hold that entities cannot be held
liable for constitutional violations when the underlying violation requires
subjective intent. Indeed, the Supreme Court has taken that course in a
different context. See City of Newport v. Fact Concerts, Inc., 453 U.S.
247, 267 (1981) (holding that punitive damages cannot sensibly be
assessed against a governmental entity because the entity “can have no
malice independent of the malice of its officials”). But that option is not
open to us, because the Supreme Court clearly has stated that
municipalities can have subjective knowledge and intent for the purposes
of § 1983 liability. See Brown, 520 U.S. at 405 (holding that “proof that
a municipality’s legislative body or authorized decisionmaker has
intentionally deprived a plaintiff of a federally protected right necessarily
establishes that the municipality acted culpably”).
38 CASTRO V. COUNTY OF LOS ANGELES

monitoring system.2 L.A. County Code, tit. 26, ch. 1, § 100
(2007). That incorporation was an affirmative act by the
County’s legislative body. As explained above, I would not
require such an affirmative act to show that an entity
possesses the requisite knowledge to support a finding of
deliberate indifference; I would hold, as a matter of law, that
governmental entities, as distinct from individuals employed
by those entities, know the statutes and regulations governing
their conduct. But in this case, the County Council’s
affirmative adoption of a regulation aimed at mitigating the
risk to individuals housed in sobering cells provides even
more evidence that the County knew of that risk. See Brown,
520 U.S. at 405–06 (describing Owen v. City of
Independence, 445 U.S. 622 (1980), and Newport v. Fact
Concerts, Inc., 453 U.S. 247 (1981), as municipal liability
cases involving “no difficult questions of fault” because they
involved “formal decisions of municipal legislative bodies”).

For the foregoing reasons, I would affirm the jury’s
verdict against the entity defendants. I therefore dissent from
Part D.2.

2
Even though the county code provision was not in evidence in the
district court, we may take judicial notice of it because it is “not subject
to reasonable dispute” and “can be accurately and readily determined from
sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid.
201(b)(2); Santa Monica Food Not Bombs v. City of Santa Monica,
450 F.3d 1022, 1025 (9th Cir. 2006); see id. at 1026 n.2 (holding that local
ordinances are “proper subjects for judicial notice”).