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; ORDER AND
CHRISTOPHER SOLOMON; DAVID OPINION
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 August 11, 2015

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

Order;

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

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

SUMMARY**

Civil Rights

The panel withdrew its prior opinion, concurrence, and
partial concurrence and partial dissent, filed May 1, 2015, and
published at 785 F.3d 336, and replaced it with an amended
opinion, concurrence and partial concurrence and partial
dissent.

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.
Plaintiff alleged that the County of Los Angeles, the Los
Angeles Sheriff’s Department County and individual
defendants were deliberately indifferent to the substantial risk
of harm created by housing him in the same sobering cell as
the other arrestee and by failing to maintain appropriate
supervision of the cell.

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

**
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

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
entity defendants, 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 that defendants had actual knowledge
of a risk to plaintiff’s safety. The panel stated that even
though a state regulation required Counties to install a
compliant audio-monitoring system to ensure that inmates
could easily summon help, there was no evidence presented
at trial that the entity defendants had actual, rather than
constructive, knowledge of the regulation.

The panel affirmed the jury’s future-damages award,
determining that plaintiff presented sufficient evidence
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
4 CASTRO V. COUNTY OF LOS ANGELES

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. Judge Graber also wrote separately because,
in her view, the Supreme Court’s recent decision in Kingsley
V. Hendrickson, 135 S. Ct. 2466 (2015), called into question
the Circuit’s precedent on the appropriate state-of-mind
inquiry in failure-to-protect claims brought by pretrial
detainees.

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.
 CASTRO V. COUNTY OF LOS ANGELES 5

ORDER

The opinion, concurrence, and partial concurrence and
partial dissent filed May 1, 2015, and published at 785 F.3d
336, are withdrawn and are replaced by the opinion,
concurrence, and partial concurrence and partial dissent filed
concurrently with this order. As the court’s opinion is
withdrawn, Appellants’ petition for panel rehearing and
petition for rehearing en banc is moot. Further petitions for
panel rehearing and for rehearing en banc may be filed.

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
6 CASTRO V. COUNTY OF LOS ANGELES

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
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
 CASTRO V. COUNTY OF LOS ANGELES 7

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.
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.
8 CASTRO V. COUNTY OF LOS ANGELES

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.

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
 CASTRO V. COUNTY OF LOS ANGELES 9

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.

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
10 CASTRO V. COUNTY OF LOS ANGELES

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.

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.
 CASTRO V. COUNTY OF LOS ANGELES 11

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-to-female
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
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
12 CASTRO V. COUNTY OF LOS ANGELES

(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
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
Fourteenth Amendment rather than the Eighth Amendment.
 CASTRO V. COUNTY OF LOS ANGELES 13

See Gibson v. County of Washoe, 290 F.3d 1175, 1187 (9th
Cir. 2002). 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 (9th Cir. 2010) (explaining that
“neither [the Ninth Circuit] nor the Supreme Court ha[s]
departed from the standard set forth in Bell and Farmer for
considering pretrial detainees’ claims that government
officials violated their Fourteenth Amendment rights by
failing to prevent harm”).

Our dissenting colleague, however, believes that the
Supreme Court’s recent decision in Kingsley v. Hendrickson,
135 S. Ct. 2466 (2015), calls the law on this point into
question. She argues that “Kingsley undermines Clouthier”
because the Fourteenth Amendment provides substantively
different protections than the Eighth Amendment, such that
different standards may now apply to claims brought by
pretrial detainees as opposed to convicted prisoners.
Dissenting Op. at 43–46.

We find at least two flaws in the dissent’s analysis. First
and foremost, Kingsley itself acknowledges that it does not
necessarily impose different standards for claims brought
under the Eighth Amendment as opposed to the Fourteenth
Amendment; it addresses only the rights of pretrial detainees
under the Fourteenth Amendment without passing judgment
on parallel rights that may be possessed by convicted
prisoners under the Eighth Amendment. See Kingsley, 135 S.
Ct. at 2476 (“We acknowledge that our view that an objective
standard is appropriate in the context of excessive force
claims brought by pretrial detainees pursuant to the
Fourteenth Amendment may raise questions about the use of
a subjective standard in the context of excessive force claims
14 CASTRO V. COUNTY OF LOS ANGELES

brought by convicted prisoners. We are not confronted with
such a claim, however, so we need not address that issue
today.”). For this same reason, we disagree with our
dissenting colleague’s view that Clouthier’s reading of Bell
v. Wolfish, 441 U.S. 520, 535 (1979), “cannot survive
Kingsley.” Dissenting Op. at 46.

Second, even if Kingsley did establish different standards
for excessive-force claims brought by pretrial detainees as
opposed to convicted prisoners, such a holding would have no
bearing on the failure-to-protect claims presented here and in
Clouthier. The dissent acknowledges that “[t]here are
important differences between excessive force and failure-to-
protect claims,” but nonetheless believes that the fact that
they are drawn from the same constitutional sources—the
Eighth and Fourteenth Amendments—is sufficient to
overcome those differences. Dissenting Op. at 45. We
respectfully disagree.

The standard for a failure-to-protect claim—deliberate
indifference to a substantial risk of serious harm—is
completely different from the standard for an excessive-force
claim. For years, the Supreme Court has held that the focus
of any excessive-force claim, whether brought under the
Eighth Amendment or the Fourteenth Amendment, is on the
reasonableness of an officer’s actions rather than on whatever
thoughts, knowledge, or motivation may have driven those
actions. See Graham v. Connor, 490 U.S. 386, 397 (1989)
(holding that “the question [in an excessive-force claim] is
whether the officers’ actions are ‘objectively reasonable’ in
light of the facts and circumstances confronting them, without
regard to their underlying intent or motivation,” such that
“[a]n officer’s evil intentions will not make a [constitutional]
violation out of an objectively reasonable use of force; nor
 CASTRO V. COUNTY OF LOS ANGELES 15

will an officer’s good intentions make an objectively
unreasonable use of force constitutional.”).

Failure-to-protect claims, however, involve no affirmative
act at all by the defendant. The Supreme Court thus requires
lower courts to consider more than just the simple fact of
inaction; we must also assess what was going on inside the
defendant’s mind that led to his failure to act. See Farmer v.
Brennan, 511 U.S. 825, 837 (1994) (holding that in order for
a defendant to be deemed “deliberately indifferent” to a
particular risk, he “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.”). We
believe that this substantive difference is more significant
than the common constitutional source.

In short, Kingsley does not establish that excessive-force
claims brought under the Fourteenth Amendment are
governed by a different standard than excessive-force claims
brought under the Eighth Amendment. And even if it did, as
the dissent acknowledges, we would not be authorized to
extend that distinction to the substantively different failure-
to-protect claim presented both here and in Clouthier without
express instructions from the Supreme Court to do so. See
Agostini v. Felton, 521 U.S. 203, 207 (1997) (“The Court
neither acknowledges nor holds that other courts should ever
conclude that its more recent cases have, by implication,
overruled an earlier precedent. Rather, lower courts should
follow the case which directly controls, leaving to this Court
the prerogative of overruling its own decisions.”).

Accepting, then, that Clouthier remains good law, Castro
was required to show by a preponderance of the evidence that
(1) he faced a substantial risk of serious harm, (2) the
16 CASTRO V. COUNTY OF LOS ANGELES

defendants were deliberately indifferent to that risk, and
(3) the defendants’ 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.

In the case before us, the jury specifically found on the
verdict form that both Solomon and Valentine were
deliberately indifferent to Castro’s plight. In his brief on
appeal, Castro notes 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
 CASTRO V. COUNTY OF LOS ANGELES 17

time, but testified that he did not hear the pounding. Solomon
also contends that the video footage of the event shows that
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
18 CASTRO V. COUNTY OF LOS ANGELES

indifference. The jury determined that it did. This court has
long held that whether or not a prison official’s actions
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
 CASTRO V. COUNTY OF LOS ANGELES 19

arbitrary time limitation, we decline to do so. The jury’s
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.
20 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 21

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,
22 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 23

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
24 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 25

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).
26 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 27

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
28 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 29

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.
30 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.

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 personnel who can respond
immediately.” Id. tit. 24, § 1231.2.22 (emphasis added).
 CASTRO V. COUNTY OF LOS ANGELES 31

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—and, in our view, the dissent—have muddled
the issue of knowledge by failing to distinguish between
actual versus constructive knowledge. The law has long
recognized a distinction between constructive knowledge
(i.e., what a reasonable person should have known in a given
situation) and actual knowledge (i.e., what a particular person
did in fact know 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 negligence, even in the absence of
actual knowledge, if it had the knowledge that a reasonable
person would have possessed under the circumstances).
32 CASTRO V. COUNTY OF LOS ANGELES

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).

The Supreme Court has previously determined that
subjective (i.e., actual) knowledge is required in order to
impose liability under a failure-to-protect claim. In Farmer,
the Court held specifically that for liability to attach based on
a defendant’s failure to protect a plaintiff from harm, the
defendant “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.” Farmer,
511 U.S. at 837. In adopting this test for deliberate-
indifference claims, the Supreme Court specifically rejected
an objective standard of knowledge (i.e., constructive
knowledge) for these claims. Id. Even the dissent
acknowledges that Kingsley did not overrule Farmer or
otherwise question the existing test for deliberate-indifference
claims against the individual defendants. Dissenting Op. at
44, n. 4.

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
 CASTRO V. COUNTY OF LOS ANGELES 33

regulation was discussed at planning meetings would also
suffice, as would evidence that similar incidents had occurred
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
position that the County had actual knowledge of the
regulations in question simply because the County Board of
Supervisors adopted them. Dissenting Op. at 41–43. These
regulations were neither drafted by the County nor considered
individually before adoption. Instead, the Board of
Supervisors adopted over 1,300 pages of the California
Building Code in one fell swoop, one of which happened to
contain the regulation at issue here. Citing Board of County
Commissioners v. Brown, 520 U.S. 397, 405–06 (1997), the
dissent argues that this adoption is “conclusive proof that the
County had actual knowledge of the risk of the harm that
befell Plaintiff.” Dissenting Op. at 41. The Supreme Court’s
discussion in Brown, however, addressed only specific,
targeted municipal actions. See id. (discussing a city
34 CASTRO V. COUNTY OF LOS ANGELES

council’s censure and discharge of an employee and
cancellation of a performance license due to the content of the
performance). Were any such specific, targeted actions
present here, we would wholeheartedly agree with the dissent
that the County had actual knowledge of the regulation at
issue. In the absence of any such proof, however, 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 dissent finally argues that we should “hold, as a
matter of law, that entities have actual knowledge of (1) laws
that they enact, including those adopted by incorporation, and
(2) state regulations governing their conduct.” Dissenting
Op. at 41. We find this proposition perplexing. Knowledge
that an individual or an entity is deemed to have as a matter
of law is, by definition, constructive knowledge. Black’s Law
Dictionary (10th ed. 2014) (“[C]onstructive knowledge [is]
[k]nowledge that one using reasonable care or diligence
should have, and therefore that is attributed by law to a given
person.” (emphasis added)). As discussed at length above,
constructive knowledge is insufficient to impose liability for
a failure-to-protect claim, and actual knowledge cannot, from
a definitional standpoint, be imputed as a matter of law. Our
dissenting colleague, understandably, is unable to cite any
authority in support of her novel proposition.

Finally, we recognize that 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, 217 F.3d 726, 734 (9th Cir. 2000)). But
without any evidence whatsoever that the County had actual
 CASTRO V. COUNTY OF LOS ANGELES 35

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
from both his cognitive assistant and his treating
psychologist, and he also submitted a chart detailing the
36 CASTRO V. COUNTY OF LOS ANGELES

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 37

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.
38 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 27. 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 39

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.1 See Maj. at
30–35.

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

I join the majority opinion, with the exception of Part
II.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

1
I agree with Judge Gilman that Kingsley v. Hendrickson, 135 S. Ct.
2466 (2015), does not clearly establish a new or different test for a failure-
to-protect claim. See Maj. Op. 13–16. Moreover, even assuming the
application of an “objective” intent test, the County’s adoption of certain
chapters of the California Building Code, including criteria for ‘sobering
cells” — some decades after the construction of the West Hollywood
Station — would not, by itself, meet that objective intent test.
40 CASTRO V. COUNTY OF LOS ANGELES

indifferent to the risk that Plaintiff would be harmed by a
fellow inmate. I also write separately because the Supreme
Court’s recent decision in Kingsley v. Hendrickson, 135 S. Ct.
2466 (2015), calls into question our precedent on the
appropriate state-of-mind inquiry in failure-to-protect claims
brought by pretrial detainees.

A. The entity Defendants had actual knowledge of state
regulations governing their conduct and were
deliberately indifferent.

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
governmental official.”1 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

1
As I explain in Part B, I question whether proof of subjective
indifference is required in a Fourteenth Amendment case after the
Supreme Court’s decision in Kingsley. This section assumes, consistent
with our precedent, that Farmer still applies to a claim arising under the
Fourteenth Amendment.
 CASTRO V. COUNTY OF LOS ANGELES 41

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
way to show such knowledge. Here, as the majority explains,
state regulations applicable to the County anticipated the
precise harm that befell Plaintiff and required a particular
audio-monitoring system to prevent that harm. Moreover, the
County affirmatively adopted those same regulations into its
municipal code. I would hold, as a matter of law, that entities
have actual knowledge of (1) laws that they enact, including
those adopted by incorporation, and (2) state regulations
governing their conduct.

At the time of the attack 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-monitoring system.2
L.A. County Code, tit. 26, ch. 1, § 100 (2007). The County
Board of Supervisors’ affirmative adoption of a regulation
aimed at mitigating the risk to individuals housed in sobering
cells is conclusive proof that the County had actual
knowledge of the risk of the harm that befell Plaintiff. See
Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 405–06 (1997)

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”).
42 CASTRO V. COUNTY OF LOS ANGELES

(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”).

But 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 also 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. The majority contends
that such a rule impermissibly equates actual knowledge with
constructive knowledge. Maj. op. at 33–34. 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.” Brown, 520 U.S. at 405. But I do not think that
the Court meant for us to ignore salient differences between
individuals and entities.

In Davis v. Scherer, 468 U.S. 183, 196 (1984), the Court
held that individual officers are not deemed to have
knowledge of the “voluminous, ambiguous, and
contradictory” regulations governing their conduct. (Internal
quotation marks omitted.) The Court explained that officers
“must often act swiftly and firmly,” precluding “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 (internal quotation marks omitted).
That reasoning does not apply to entities, which by definition
do not make the sort of time-pressured decisions that
individual officers make. Moreover, because an entity does
not have an actual mind, the question of what the entity
 CASTRO V. COUNTY OF LOS ANGELES 43

“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.’”).3 In light of
these differences between entities and individuals, 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.

B. Recent Supreme Court precedent calls into question
our caselaw governing Fourteenth Amendment
failure-to-protect claims.

As explained above, I would hold, as a matter of law, that
the entity Defendants had actual knowledge of the risk to
Plaintiff and were deliberately indifferent to that risk. But
after the Supreme Court’s decision in Kingsley, I doubt that
actual knowledge is necessary to support a finding of
deliberate indifference under the Fourteenth Amendment. In
my view, Kingsley undermines Clouthier v. County of Contra

3
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”).
44 CASTRO V. COUNTY OF LOS ANGELES

Costa, 591 F.3d 1232, 1243 (9th Cir. 2010), in which we held
that proof of such knowledge is required.4

A pretrial detainee’s right to be protected from harm at
the hands of other inmates stems from the Due Process
Clause of the Fourteenth Amendment, rather than from the
Cruel and Unusual Punishment Clause of the Eighth
Amendment. Gibson, 290 F.3d at 1187. Notwithstanding
those different constitutional sources, in Clouthier, 591 F.3d
at 1242–43, we held that the Eighth and Fourteenth
Amendment standards are identical for failure-to-protect
claims. Accordingly, we held that the standard imposed by
Farmer—which involved an Eighth Amendment claim
brought by a convicted prisoner—applied to claims brought
by pretrial detainees. Id. at 1242.

In Kingsley, 135 S. Ct. at 2475, the Supreme Court held
that excessive force claims brought by convicted prisoners
under the Eighth Amendment’s Cruel and Unusual
Punishment Clause differ qualitatively from excessive force
claims brought by pretrial detainees under the Fourteenth
Amendment’s Due Process Clause. Under Kingsley, a
pretrial detainee, unlike a convicted prisoner, need not prove
that the defendant subjectively knew that the force applied
was excessive; that state-of-mind inquiry is “solely . . .
objective.” Id. at 2473 (emphasis added).

4
Despite the considerable tension between Kingsley and our precedent,
the conflict may not be sufficient to meet the “high bar” that would
authorize our panel to depart from that precedent. Miller v. Gammie,
335 F.3d 889, 900 (9th Cir. 2003) (en banc). For that reason, I do not
dissent from the majority’s description of the appropriate state-of-mind
inquiry for the individual defendants.
 CASTRO V. COUNTY OF LOS ANGELES 45

There are important differences between excessive force
and failure-to-protect claims; notably, a failure-to-protect
claim does not necessarily involve an affirmative act by the
defendant.5 But there also are important similarities. Most
significantly, the claims share constitutional sources; they are
drawn from the Fourteenth Amendment for pretrial detainees,
but from the Eighth Amendment for convicted prisoners.
Therefore, the reasoning of Kingsley is in serious tension, if
not outright conflict, with the reasoning of Clouthier. See
Miller, 335 F.3d at 900 (“[T]he issues decided by the higher
court need not be identical in order to be controlling. Rather,
the relevant court of last resort must have undercut the theory
or reasoning underlying the prior circuit precedent in such a
way that the cases are clearly irreconcilable.”).

Clouthier provided a single rationale for holding that the
Farmer test applied equally to Eighth and Fourteenth
Amendment claims: It read Bell v. Wolfish, 441 U.S. 520,
535 & n.16 (1979), to require proof of punitive intent for
failure-to-protect claims, whether those claims arise in a
pretrial or a post-conviction context. Clouthier, 591 F.3d at
1241–43. But Kingsley rejected precisely that reading of
Bell; although unconstitutional “’punishment’” of pretrial
detainees “can consist of actions taken with an ‘expressed
intent to punish,’” proof of such intent is not required.
Kingsley, 135 S. Ct. at 2473 (emphasis added) (quoting Bell,

5
I disagree with the majority’s statement that we evaluate excessive
force claims, as distinct from deliberate indifference claims, without
regard to “whatever thoughts, knowledge, or motivation” drove the
defendant’s actions. Maj. op. at 14. When a convicted prisoner brings an
excessive force claim, “the core judicial inquiry is . . . whether force was
applied in a good-faith effort to maintain or restore discipline, or
maliciously and sadistically to cause harm.” Hudson v. McMillian,
503 U.S. 1, 7 (1992).
46 CASTRO V. COUNTY OF LOS ANGELES

441 U.S. at 538). In evaluating the challenged prison
conditions in Bell, the Court “did not consider the prison
officials’ subjective beliefs about the policy. Rather, the
Court examined objective evidence . . . before concluding that
the conditions were reasonably related to the legitimate
purpose of holding detainees for trial and did not appear
excessive in relation to that purpose.” Id. (citing Bell,
441 U.S. at 541–43). Thus, Clouthier’s reading of Bell, as
requiring a subjective state-of-mind inquiry with respect to
awareness of the risk, cannot survive Kingsley. And because
Clouthier’s only reason for applying the same test in the
Eighth and Fourteenth Amendment contexts was that now-
defunct reading of Bell, it is questionable whether Clouthier
remains good law on this point.

Moreover, Kingsley emphasized the importance of the
constitutional source of the asserted right: “The language of
the two Clauses differs, and the nature of the claims often
differs. And, most importantly, pretrial detainees (unlike
convicted prisoners) cannot be punished at all, much less
maliciously and sadistically.” 135 S. Ct. at 2475 (internal
quotation marks omitted). In light of Kingsley’s focus on the
differences between the relevant constitutional provisions, we
ought not apply a decision grounded in the Eighth
Amendment to a claim arising under the Fourteenth
Amendment. Cf. Graham v. Connor, 490 U.S. 386, 393–94
(1989) (“We reject this notion that all excessive force claims
brought under § 1983 are governed by a single generic
standard. As we have said many times, § 1983 is not itself a
source of substantive rights, but merely provides a method for
vindicating federal rights elsewhere conferred.” (internal
quotation marks omitted)). Thus, I do not think that either
Clouthier or Farmer fully answers what state-of-mind inquiry
is required in this case.
 CASTRO V. COUNTY OF LOS ANGELES 47

Because I would hold that the entity Defendants had
actual knowledge of the risk to Plaintiff, Kingsley would not
change the outcome that I would reach even if we were not
bound to follow Clouthier. Both the Supreme Court and we
have held that the due process rights of a pretrial detainee are
at least as great as the Eighth Amendment protections
available to a convicted prisoner. City of Revere v. Mass.
Gen. Hosp., 463 U.S. 239, 244 (1983) (citing Bell, 441 U.S.
at 535 n.16); accord Or. Advocacy Ctr. v. Mink, 322 F.3d
1101, 1120, 1121 n.11 (9th Cir. 2003). Thus, proof that a
defendant had actual knowledge of the risk of harm, which
amounts to proof that actions were taken “with an ‘expressed
intent to punish,’” Kingsley, 135 S. Ct. at 2473 (quoting Bell,
441 U.S. at 538), necessarily satisfies the Fourteenth
Amendment state-of-mind inquiry.

But, in my view, Kingsley strongly suggests that proof of
actual knowledge of the risk is not required for a claim
arising under the Fourteenth Amendment. In Kingsley, the
Supreme Court explained that, in an excessive force case,

there are . . . two separate state of mind
questions. The first concerns the defendant’s
state of mind with respect to his physical
acts—i.e., his state of mind with respect to the
bringing about of certain physical
consequences in the world. The second
question concerns the defendant’s state of
mind with respect to whether his use of force
was “excessive.”

Id. at 2472. As to the first inquiry, the Court stated that “the
defendant must possess a purposeful, a knowing, or possibly
a reckless state of mind,” because “’liability for negligently
48 CASTRO V. COUNTY OF LOS ANGELES

inflicted harm is categorically beneath the threshold of
constitutional due process.’” Id. (quoting County of
Sacramento v. Lewis, 523 U.S. 833, 849 (1998)). By contrast,
for the second inquiry, a pretrial detainee need provide “only
objective evidence that the challenged governmental action
is not rationally related to a legitimate governmental
objective or that it is excessive in relation to that purpose.”
Id. at 2473–74. In the excessive force context, that step
requires the plaintiff to demonstrate that the force used was
“objectively unreasonable.” Id. at 2473.

Farmer sets up an analogous two-part state-of-mind
inquiry for failure-to-protect claims. In order to be deemed
“deliberately indifferent” to a particular risk under the Eighth
Amendment, a defendant “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.”
Farmer, 511 U.S. at 837. Under Kingsley, the first part of the
standard—requiring subjective awareness of facts giving rise
to an inference of a substantial risk of serious harm—remains
unchanged.6 But I read Kingsley to suggest that, for claims
arising under the Fourteenth Amendment, a plaintiff need
only show that a reasonable person in the defendant’s shoes
would draw that inference.7

6
And the act or omission itself still must be intentional or possibly
reckless. For example, a guard who fails to take action because he or she
has suddenly fallen ill would not be deliberately indifferent.
7
This case illustrates why it is important that our precedent get this issue
right. Applying the post-Kingsley standard outlined in this section, the
majority would reach a different conclusion regarding the entity
Defendants’ liability, because we agree that the state regulations put the
entity Defendants on at least constructive notice that the failure to install
an inmate- or sound-actuated audio-monitoring system exposed inmates
 CASTRO V. COUNTY OF LOS ANGELES 49

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

to a substantial risk of violence at the hands of other inmates. We ought
to rehear this case en banc so that we can take up this important issue.