Shane Horton v. City of Santa Maria

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

SHANE HORTON, by his Guardian Ad No. 15-56339
Litem Yvonne Horton,
Plaintiff-Appellee, D.C. No.
2:14-cv-06135-
v. SJO-PJW

CITY OF SANTA MARIA; SANTA
MARIA POLICE DEPARTMENT; OPINION
ANDREW BRICE,
Defendants-Appellants.

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

Argued and Submitted February 15, 2018
Pasadena, California

Filed February 1, 2019

Before: Marsha S. Berzon and Jay S. Bybee, Circuit
Judges, and Sharon L. Gleason,* District Judge.

Opinion by Judge Berzon;
Dissent by Judge Bybee

*
The Honorable Sharon L. Gleason, United States District Judge for
the District of Alaska, sitting by designation.
2 HORTON V. CITY OF SANTA MARIA

SUMMARY**

Civil Rights

The panel reversed in part and affirmed in part the district
court’s order denying summary judgment to defendants in an
action brought pursuant to 42 U.S.C. § 1983 and California
law by a pretrial detainee who alleged that defendants
violated his Fourteenth Amendment right to be safeguarded
from injury and his state law right to medical care while in
custody.

After being arrested, plaintiff was detained in a temporary
holding cell and left unattended for around half an hour,
during which time he attempted suicide, causing permanent
and severe injury. With his mother acting as guardian ad
litem, plaintiff filed suit alleging, in part, that defendants
were deliberately indifferent to his safety because they failed
to take appropriate action after plaintiff’s mother had warned
a police officer over the phone that plaintiff was suicidal.

The panel held that defendant Officer Brice was entitled
to qualified immunity as a matter of law because a
reasonable officer would not have known that failing to
attend to plaintiff immediately after the phone call would be
unlawful under the law at the time of the incident. The panel
therefore reversed the district court’s denial of summary
judgment in favor of Officer Brice on the § 1983 claim.

**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 HORTON V. CITY OF SANTA MARIA 3

The panel next held that it lacked jurisdiction to review
the district court’s denial of summary judgment in favor of
the municipal defendants on the § 1983 claim. The panel
noted that when a municipal defendant’s motion for summary
judgment is “inextricably intertwined” with issues presented
in the individual officers’ qualified immunity appeal, this
court may exercise pendent party appellate jurisdiction. The
panel held that in this case appellate resolution of the
officer’s appeal did not “necessarily” resolve the pendent
claim of municipal liability. The panel noted that its holding
that Officer Brice was entitled to qualified immunity did not
preclude the possibility that a constitutional violation may
nonetheless have taken place, including as a result of the
collective acts or omissions of Santa Maria Police
Department officers. The panel remanded to permit the
district court to consider the claims in light of this court’s
recent guidance in Castro v. County of Los Angeles, 833 F.3d
1060 (9th Cir. 2016) (en banc), and Gordon v. County of
Orange, 888 F.3d 118, 1125–26 (9th Cir. 2018).

Finally, the panel affirmed the district court’s denial of
summary judgment to defendants on the state law claim
brought pursuant to California Government Code § 845.6,
concluding that there was a genuine issue of material fact as
to liability under state law.

Dissenting in part, Judge Bybee joined the majority’s
holding that Office Brice was entitled to qualified immunity
for plaintiff’s deliberate-indifference claim under 42 U.S.C.
§ 1983 and that the panel lacked jurisdiction over the
municipal liability claim. Judge Bybee would have reversed
the district court’s denial of summary judgment on the state
law claim, because he believed that there was no basis under
California law for subjecting Officer Brice to suit.
4 HORTON V. CITY OF SANTA MARIA

COUNSEL

Timothy T. Coates (argued) and Jonathan H. Eisenman,
Greines Martin Stein & Richland LLP, Los Angeles,
California; Kristine L. Mollenkopf, Assistant City Attorney,
Santa Maria, California; Bruce D. Praet, Ferguson Praet &
Sherman, Santa Ana, California; for Defendants-Appellants.

Martin N. Buchanan (argued), Law Offices of Martin N.
Buchanan, San Diego, California; Rafael Gonzalez and Jared
M. Katz, Mack Staton Mullen & Henzel LLP, Santa Barbara,
California; Joseph Robert Finnerty and Robert W. Finnerty,
Girardi Keese, Los Angeles, California; for Plaintiff-
Appellee.

OPINION

BERZON, Circuit Judge:

This case concerns the attempted suicide of a jailed
pretrial detainee. Shane Horton was arrested for slashing an
acquaintance’s car tire and taken to the local police
department, where he was detained in a temporary holding
cell. Left unattended for around half an hour while the officer
in charge spoke to his mother and completed paperwork,
Horton removed his belt, fed it through the cell door bars, and
hanged himself, causing permanent and severe brain damage.

With his mother acting as guardian ad litem, Horton
brought suit under 42 U.S.C. § 1983 and California law. He
contends that the City of Santa Maria, the Santa Maria Police
Department, and several individual officers violated his
Fourteenth Amendment right to be safeguarded from injury
 HORTON V. CITY OF SANTA MARIA 5

and his state law right to medical care while in custody. We
reverse the district court’s denial of qualified immunity on the
§ 1983 claims as to Officer Andrew Brice, conclude that we
lack jurisdiction to review the denial of summary judgment
on the § 1983 claims as to the municipal defendants, and
affirm the district court’s denial of summary judgment on the
state law claims.

I. Factual and Procedural History

In the months leading up to his arrest, eighteen-year-old
Horton had given his mother reason to be concerned. He
used drugs, including marijuana, “Molly” (a pure form of 3,4-
Methylenedioxymethamphetamine), and phencyclidine
(PCP), and contemplated suicide. On December 13, 2012, he
took PCP and “started freaking out.” He extinguished
cigarettes on his own face and hands, punched his fist through
a window, tried to cut his wrist with a piece of broken glass,
held a kitchen knife pointed at his throat, and, his mother
understood, threatened to kill himself. That night, he was
admitted to the emergency room, where he was initially held
as a suicide risk. But he specifically denied to hospital staff
any suicidal ideation, and the doctors came to suspect “that
[his problem] was mostly drugs.” Horton was discharged the
morning of December 14, 2012, after an emergency room
physician and a member of the county’s Crisis and Recovery
Emergency Services (“CARES”) team agreed that he was not
suicidal.

Approximately two weeks later, on the morning of
December 29, 2012, Horton and his girlfriend became
involved in a physical altercation. As his girlfriend was
driving away with a friend, Horton pulled out a folding knife
and slashed the tire of the friend’s car.
6 HORTON V. CITY OF SANTA MARIA

Officers Andrew Brice and Duane Schneider soon arrived
on the scene and found Horton. Horton admitted to slashing
the tire, pointed the police to the knife, and remained calm
and cooperative as the officers arrested him for misdemeanor
vandalism.

Officer Brice stayed to interview Horton’s girlfriend. She
disclosed that Horton had hit her several times in the past,
chased her with a knife, and stabbed a friend in the leg. She
also revealed that he had made comments about killing police
and sympathizing with the suspects in recent mass homicides.

While Officer Brice was speaking to Horton’s girlfriend,
Officer Schneider transported Horton to the police station,
where he patted Horton down, confiscated his wallet and
iPod, and placed him in a temporary holding cell. Officer
Schneider did not remove Horton’s jewelry or belt. As
Officer Schneider prepared to leave, Horton said he was
feeling anxious and “would really like to speak to someone”
— “not a therapist. Even you.” As they talked, Horton
explained to Officer Schneider that it had been “a really,
really, really rough three weeks straight.” He described his
recent drug use and the window-breaking incident, and said
that he “had the shit beat out of me fucking thousands of
times.” At one point, Officer Schneider asked if he had any
medical problems; Horton responded, “No, sir. Not that I
know of. I’m real healthy as I’m aware. I’m just — besides
feeling anxious right now and I hate being locked in a box
. . . . I don’t like being in a cell.”
 HORTON V. CITY OF SANTA MARIA 7

Eventually, Officer Schneider left, stating that he would
“[p]robably do a psych or something.”1 He instructed Horton
to wave at the security camera if he needed anything. A few
minutes later, another police officer asked Horton if he had
any medical problems; Horton again said he did not.

Approximately an hour and a half later, Officer Brice
returned to the police station. Officer Brice spoke to Horton
privately in an interview room, explaining that Horton’s
girlfriend and her friend both said that Horton slapped the
girlfriend, and reporting that she had a mark on her consistent
with that allegation. Officer Brice said that Horton’s
girlfriend had been granted a restraining order against him for
one week, that he would be charged with felony domestic
violence, and that he had the option to post bail. At one point
during the conversation, Officer Brice asked Horton if he had
any medical conditions, and Horton once again replied, “No,
sir.”

At the end of the interview, Officer Brice brought Horton
back to the holding cell and gave him the opportunity to call
his mother, Yvonne Horton.2 Horton told his mother, “I’m in
jail right now. I’m going to get booked and go to [the main
county jail in] Goleta. You can choose to be there, get me out
on bail or not. . . . I would appreciate it [if you came to get
me out on bail], but it is up to you.” Yvonne apparently said
she would not bail him out, and he ended the conversation by
saying, “It’s okay, Mom. I’m sorry . . . . All right. I love

1
Officer Schneider presumably meant that he was considering
ordering a psychiatric evaluation of Horton.
2
We use “Yvonne” in this opinion to distinguish the mother from her
son.
8 HORTON V. CITY OF SANTA MARIA

you.” Before hanging up, Yvonne requested to speak
privately to Officer Brice.

Officer Brice left Horton in the cell and, out of Horton’s
earshot, called Yvonne back. Officer Brice spoke with
Yvonne for ten to fifteen minutes, during which time, she
stated in her deposition, she relayed “everything” about the
December 13, 2012 incident — Horton’s use of drugs, the
cigarette marks on his face and hands, the knife he held to his
throat, his hospitalization with an initial “5150” hold for risk
of suicide,3 the CARES official’s conclusion that he could be
discharged because his conduct was due to drugs not suicidal
ideation, and her disagreement with that conclusion. Yvonne
testified that she also told Officer Brice that her son was
depressed and suicidal, that she was really worried about him,
and that she believed he could be helped in the judicial
system. And she recounted that she instructed Officer Brice
to “please, watch him, please look after him, please.”4

3
California Welfare and Institutions Code § 5150 authorizes qualified
officers or clinicians to involuntarily take into custody a person who, “as
a result of a mental health disorder, is a danger to others, or to himself or
herself, or gravely disabled.” Cal. Welf. & Inst. Code § 5150.
4
Officer Brice denies that Yvonne ever used the terms “suicidal” or
“tried to kill himself.” He testified that Yvonne instead told him that
CARES declined to keep Horton “because they believed his actions were
drug induced,” which she was upset about, and that she was equivocating
on whether to bail him out, because she felt her son would be safer in jail
than out. However, in deciding this qualified immunity interlocutory
appeal, we rely on the record as most favorable to Horton, see Saucier v.
Katz, 533 U.S. 194, 201 (2001), overruled in part on other grounds by
Pearson v. Callahan, 555 U.S. 223, 236 (2009), and so disregard Officer
Brice’s testimony to the extent it contradicts that of Yvonne.
 HORTON V. CITY OF SANTA MARIA 9

Officer Brice explained to Yvonne that he was getting
ready to transport Horton to jail, which Yvonne understood
to mean that they would be transporting him “very shortly.”
In response to Yvonne’s pleas to look after her son, Officer
Brice reassured her that “[h]e’s safe here.” When asked at
deposition whether she ever told the police officer he had to
go check on Horton immediately, she said, “I didn’t think that
I would have to do that. . . . I was under the impression, after
I spoke to [him] in that way, that he would go back and check
on him.”

Instead of going immediately back to the cell, Officer
Brice first went to complete the paperwork necessary to
transport Horton to jail and prepare the transport van. When
Officer Brice went to get Horton, approximately 27 minutes
after leaving him,5 Officer Brice discovered Horton hanging
from the cell door, not moving. Officer Brice immediately
called for assistance, administered CPR, and waited for the
paramedics to arrive to transport him to the hospital. Horton
survived the suicide attempt but suffered prolonged anoxia,6
resulting in severe and permanent brain damage.

5
As previously noted, Officer Brice’s conversation with Horton’s
mother lasted for approximately ten to fifteen minutes. In the first few
minutes of that conversation, Horton removed the belt he was wearing,
strung it through the cell door bars, looped it around his neck, and
slumped down. Approximately eight minutes before the phone call ended,
Horton was no longer seen moving in the security camera video. Another
twelve to seventeen minutes elapsed after the call ended before Officer
Brice returned to Horton’s cell and found him hanging.
6
Anoxia refers to a restriction in oxygen flow to the brain. The
longer the period of oxygen deprivation, the more severe the brain damage
and “the lower the chances of a full or meaningful recovery.” Daniels v.
Woodford, 428 F.3d 1181, 1194 n.18 (9th Cir. 2005).
10 HORTON V. CITY OF SANTA MARIA

With his mother acting as guardian ad litem, Horton filed
suit in October 2014 against the City of Santa Maria, the
Santa Maria Police Department, Officer Brice, Officer
Schneider, and other officers, claiming (1) negligence and
(2) § 1983 liability on the part of the individual officer
defendants, (3) liability on the part of the municipal
defendants, see Monell v. Dep’t of Soc. Servs., 436 U.S. 658
(1978), and (4) liability under California Government Code
§ 845.6 on the part of all defendants.

The district court granted summary judgment to all
defendants on the state law negligence claim and to all
officers except Officer Brice on the § 1983 claims. As to
Officer Brice, the district court held that there is a genuine
issue of fact regarding whether Officer Brice acted with
deliberate indifference to Horton’s safety after speaking with
his mother, and denied him qualified immunity. The court
also denied summary judgment to the municipal defendants
on Horton’s § 1983 claim that those defendants failed to
develop and adhere to a written policy regarding suicide
detection and prevention; failed to develop and adhere to
written policies regarding the identification and evaluation of
mentally disordered detainees; and failed adequately to train
their officers on such policies. Finally, the district court
denied summary judgment to Officer Brice and the municipal
defendants on the claim under California Government Code
§ 845.6, but granted summary judgment on that claim to the
other individual officers. Officer Brice and the municipal
defendants timely appealed. See Mitchell v. Forsyth,
472 U.S. 511, 530 (1985).
 HORTON V. CITY OF SANTA MARIA 11

II. Discussion

A. Section 1983 Claim Against Officer Brice

The district court concluded that there is a genuine issue
of fact regarding whether Officer Brice acted with deliberate
indifference to Horton’s safety after speaking with his
mother, and denied the officer qualified immunity. Qualified
immunity protects government officials from liability for civil
damages unless their conduct violates “clearly established
statutory or constitutional rights of which a reasonable person
would have known.” Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982). Plaintiffs bringing § 1983 claims against
individual officers therefore must demonstrate that (1) a
federal right has been violated and (2) the right was clearly
established at the time of the violation. Pearson v. Callahan,
555 U.S. 223, 232 (2009). We may “exercise [our] sound
discretion in deciding which of the two prongs of the
qualified immunity analysis should be addressed first.” Id. at
236. Here, we begin with the second, “clearly established”
prong, for reasons that will appear.

1. Clearly Established Law

“A clearly established right is one that is sufficiently clear
that every reasonable official would have understood that
what he is doing violates that right.” Isayeva v. Sacramento
Sheriff’s Dep’t, 872 F.3d 938, 946 (9th Cir. 2017) (quoting
Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)). At the time of
the events in this case, the generally applicable standard
established that officers who act with deliberate indifference
to the serious medical need of a pretrial detainee violated the
detainee’s constitutional rights under the Due Process Clause
of the Fourteenth Amendment. See, e.g., Conn v. City of
12 HORTON V. CITY OF SANTA MARIA

Reno, 591 F.3d 1081, 1090–91 (9th Cir. 2010), vacated,
563 U.S. 915 (2011), opinion reinstated in relevant part,
658 F.3d 897 (9th Cir. 2011).

Under Ninth Circuit law at the time of the incident,
Fourteenth Amendment claims that officers acted with
deliberate indifference to the medical needs of a pretrial
detainee were governed by the same “deliberate indifference”
standard as Eighth Amendment claims for failure to prevent
harm to convicted prisoners. See Simmons v. Navajo County,
609 F.3d 1011, 1017 (9th Cir. 2010), overruled in part by
Castro v. County of Los Angeles, 833 F.3d 1060 (9th Cir.
2016) (en banc); Clouthier v. County of Contra Costa,
591 F.3d 1232, 1241–43 (9th Cir. 2010), overruled by Castro,
833 F.3d 1060. That standard provided that an officer was
liable for deliberate indifference only if he “kn[ew] of and
disregard[ed] an excessive risk to inmate health or safety” —
that is, if he was “aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists”
and actually drew the inference. Simmons, 609 F.3d at 1017
(quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)).
“Deliberate indifference thus require[d] an objective risk of
harm and a subjective awareness of that harm.” Conn,
591 F.3d at 1095. (As we shall explain, that partially
subjective standard has since been revised to an entirely
objective standard for pretrial detainees. See Gordon v.
County of Orange, 888 F.3d 1118, 1125–26 (9th Cir. 2018);
Castro, 833 F.3d at 1068–71; infra pp. 16–18).

Two principles inform our clearly established law inquiry
in this case. First, the qualified immunity inquiry “must be
undertaken in light of the specific context of the case, not as
a broad general proposition.” Saucier, 533 U.S. at 201; see
also Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011) (“We have
 HORTON V. CITY OF SANTA MARIA 13

repeatedly told courts . . . not to define clearly established law
at a high level of generality.”). It is therefore critical whether
our case law had, at the time of the events in this case,
sufficiently clarified when a detainee’s imminent risk of
suicide was substantial enough to require immediate
attention.

Second, in Estate of Ford v. Ramirez-Palmer, we
recognized that deliberate indifference claims “depend in part
on a subjective test that does not fit easily with the qualified
immunity inquiry,” which is an objective inquiry. 301 F.3d
1043, 1049 (9th Cir. 2002). Estate of Ford concluded that
even where the clearly established legal standard requires
deliberate indifference, the qualified immunity inquiry should
concentrate on the objective aspects of the constitutional
standard. That is because “a reasonable prison official
understanding that he cannot recklessly disregard a
substantial risk of serious harm, could know all of the facts
yet mistakenly, but reasonably, perceive that the exposure in
any given situation was not that high.” Id. at 1050. We held
that “[i]n these circumstances, [an officer] would be entitled
to qualified immunity” under the deliberate indifference
standard. Id.

Thus, Horton must show that, given the available case law
at the time of his attempted suicide, a reasonable officer,
knowing what Officer Brice knew, would have understood
that failing to check on Horton immediately after the phone
call with Yvonne presented such a substantial risk of harm to
Horton that the failure to act was unconstitutional. We turn to
the directly applicable case law now, which is sparse.

At the time of Horton’s incident, we had held that officers
who failed to provide medical assistance to a detainee should
14 HORTON V. CITY OF SANTA MARIA

have known that their conduct was unconstitutional in two
instances, neither of which resemble the facts in this case.
See Clouthier, 591 F.3d at 1244–45; Conn, 591 F.3d at 1098.

Clouthier held that a mental health specialist who failed
to take adequate precautions to protect a detainee from
committing suicide was not entitled to qualified immunity.
591 F.3d at 1245. The specialist knew that the detainee was
suicidal, that he had attempted suicide multiple times, and
that another staff member had placed the detainee in a suicide
smock and warned that he needed to be “constantly
monitored throughout the day to ensure his safety.” Id. at
1244. Nevertheless, the specialist removed the detainee from
regular suicide monitoring and instructed officers to return
his regular clothes and bedding, which he eventually used to
commit suicide. Id. at 1245. Under these facts, we
concluded that “a reasonable mental health professional could
not have thought it was lawful to remove key suicide
prevention measures put in place by a prior Mental Health
staff member.” Id.7

In Conn, we denied qualified immunity at the summary
judgment stage to officers who, while transporting a detainee,
observed her wrap a seatbelt around her neck in an apparent
attempt to choke herself and who threatened to commit
suicide. 591 F.3d at 1098. The transporting officers did not
take the detainee to a medical center or alert subsequent

7
Clouthier also held that a prison deputy’s knowledge of the
detainee’s past suicide attempts and present suicidal tendency was
“insufficient to allow a jury to conclude that [the deputy] knew Clouthier
was suicidal and deliberately ignored that risk.” 591 F.3d at 1247. Because
that holding was on the subjective knowledge prong of the deliberate
indifference standard, it is not directly relevant to Estate of Ford’s
objective reasonable official inquiry.
 HORTON V. CITY OF SANTA MARIA 15

officers to the behavior; she then committed suicide. Id. We
concluded that “[w]hen a detainee attempts or threatens
suicide en route to jail, it is obvious that the transporting
officers must report the incident to those who will next be
responsible for her custody and safety.” Id. at 1102.8

The facts of Clouthier and Conn do not at all resemble
this case. Officer Brice’s interactions with Horton began with
his initial arrest, during which Horton remained cooperative.
Officer Brice also spoke with Horton’s girlfriend, who
informed him of Horton’s previous violent episodes, but did
not indicate any present suicidal intentions. At the jail,
Officer Brice asked Horton if he was having any medical
problems, to which Horton responded in the negative.

Officer Brice did know that Horton, according to his
mother, had been suicidal two weeks before the incident and
that his mother thought he remained a suicide risk.

Based on these facts, which are taken in the light most
favorable to Horton, a reasonable officer would not have
known that failing to attend to Horton immediately would be
unlawful under the law at the time of the incident. Horton did
not attempt suicide in the presence of Officer Brice, as the
detainee did in Conn. 591 F.3d at 1102. Nor, as was the case
in Clouthier, had he attempted suicide multiple times and
been deemed such a risk that medical specialists placed

8
While Conn did not cite expressly to Estate of Ford, it did cite to
Clouthier and did apply an objective test. See Conn, 591 F.3d at 1102
(“The relevant, dispositive inquiry in determining whether a right is
clearly established is whether it would be clear to a reasonable officer that
his conduct was unlawful in the situation he confronted.” (quoting
Saucier, 533 U.S. at 202)).
16 HORTON V. CITY OF SANTA MARIA

significant suicide prevention measures in place, measures
removed by the defendant. 591 F.3d at 1245. In short,
whether or not Officer Brice was in fact deliberately
indifferent to a substantial risk that Horton would attempt
suicide in the time before he was checked, there was no case
law at the time of the incident clearly establishing that a
reasonable officer should have perceived the substantial risk.9

In short, applying Estate of Ford, the case law at the time
of Horton’s attempted suicide was simply too sparse, and
involved circumstances too distinct from those in this case, to
establish that a reasonable officer would perceive a
substantial risk that Horton would imminently attempt
suicide. We therefore reverse the district court’s denial of
summary judgment on qualified immunity as to Officer Brice.

2. The Current Deliberate Indifference Standard

Since the incident in this case took place, this court has
announced a new liability standard governing Fourteenth
Amendment failure-to-protect claims by pretrial detainees.
Castro v. County of Los Angeles held that, in light of the
Supreme Court’s decision in Kingsley v. Hendrickson, 135 S.
Ct. 2466 (2015), Fourteenth Amendment failure-to-protect

9
Nor was there law at the time in other courts clearly establishing that
a reasonable officer would have known that failing to immediately check
up on Horton would have been unlawful. “In the absence of binding
precedent, we look to whatever decisional law is available to ascertain
whether the law is clearly established for qualified immunity purposes,
including decisions of state courts, other circuits, and district courts.”
Boyd v. Benton County, 374 F.3d 773, 781 (9th Cir. 2004) (citation and
internal quotation marks omitted). We have not found other cases applying
the objective qualified immunity inquiry prescribed by Estate of Ford to
facts similar to Horton’s case.
 HORTON V. CITY OF SANTA MARIA 17

claims must be analyzed under a purely objective standard.
Castro, 833 F.3d at 1068–71. Under Castro, we ask whether
there was “a substantial risk of serious harm to the plaintiff
that could have been eliminated through reasonable and
available measures that the officer did not take, thus causing
the injury that the plaintiff suffered.” Id. at 1070. There is no
separate inquiry into an officer’s subjective state of mind.

We have recently recognized that Castro’s objective
deliberate indifference standard extends to Fourteenth
Amendment claims by pretrial detainees for violations of the
right to adequate medical care. See Gordon, 888 F.3d at
1125–26. This objective standard would therefore guide our
analysis of whether a constitutional violation occurred here,
were we to reach that question. But it has no direct bearing
on the question of whether Officer Brice would have known
that a failure to immediately check on Horton violated a
clearly established right at the time of the incident.

As the pre-Castro standard is no longer applicable, no
purpose would be served for future cases from delineating the
application of that standard to the constitutional merits of this
case. The two-step qualified immunity procedure “is
intended to further the development of constitutional
precedent,” and we may decide “whether that procedure is
worthwhile in particular cases.” Pearson, 555 U.S. at 237,
242. We therefore tend to address both prongs of qualified
immunity where the “‘two-step procedure promotes the
development of constitutional precedent’ in an area where
this court’s guidance is . . . needed.” Mattos v. Agarano, 661
F.3d 433, 440 (9th Cir. 2011) (en banc) (quoting Pearson,
555 U.S. at 236); see also Thompson v. Rahr, 885 F.3d 582,
590 (9th Cir. 2018) (determining that a constitutional
violation occurred before holding that the officer was entitled
18 HORTON V. CITY OF SANTA MARIA

to qualified immunity so that “[g]oing forward, . . . the law is
clearly established in this scenario”). Here, Castro and
Gordon have established the law going forward, and further
delineation of the pre-Castro standard would serve little
purpose, as it is no longer applicable. We therefore confine
our inquiry to the second qualified immunity prong —
whether the constitutional right at issue was “clearly
established” at the time of the alleged violation.

B. Section 1983 Claim Against Municipal Defendants

As to the denial of summary judgment in favor of the
municipal defendants on Horton’s § 1983 claims, we lack
jurisdiction over the municipal defendants’ appeal of that
order.

Monell established that municipalities can be liable for
infringement of constitutional rights, under certain
circumstances. 436 U.S. at 690–95. In particular,
municipalities may be liable under § 1983 for constitutional
injuries pursuant to (1) an official policy; (2) a pervasive
practice or custom; (3) a failure to train, supervise, or
discipline; or (4) a decision or act by a final policymaker. A
municipality may not, however, be sued under a respondeat
superior theory. Id. at 693–95. A plaintiff must therefore
show “deliberate action attributable to the municipality [that]
directly caused a deprivation of federal rights.” Bd. of Cty.
Comm’rs v. Brown, 520 U.S. 397, 415 (1997). “Where a
court fails to adhere to rigorous requirements of culpability
and causation, municipal liability collapses into respondeat
superior liability.” Id.

Although the requisites for municipal liability under
§ 1983 can be stringent, municipalities sued under § 1983,
 HORTON V. CITY OF SANTA MARIA 19

unlike individuals, are not entitled to immunity, qualified or
otherwise, and so, unlike individuals, can never be immune
from trial.10 The denial of summary judgment to a municipal
defendant on a Monell claim is therefore no different from the
denial of any ordinary motion for summary judgment, and so
is not immediately appealable. See Collins v. Jordan,
110 F.3d 1363, 1366 n.1 (9th Cir. 1996); Henderson v.
Mohave County, 54 F.3d 592, 594 (9th Cir. 1995).

There is, however, one caveat to this rule. When a
municipal defendant’s motion for summary judgment is
“inextricably intertwined” with issues presented in the
individual officers’ qualified immunity appeal, this court may
exercise pendent party appellate jurisdiction. See Huskey v.
City of San Jose, 204 F.3d 893, 903–05 (9th Cir. 2000). In
this context, the “inextricably intertwined” concept is a
narrow one. “[A] pendent appellate claim can be regarded as
inextricably intertwined with a properly reviewable claim on
collateral appeal only if the pendent claim is coterminous

10
The collateral order doctrine allows for appeals from a narrow
category of interlocutory orders that do not fully resolve an action. See
Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545–47 (1949)
(holding that certain interlocutory decisions could be final for purposes of
28 U.S.C. § 1291). Denials of qualified immunity are among that
category. The qualified immunity defense shields government officials
from the costs and distractions of litigation and not just from liability. See
Mitchell, 472 U.S. at 526 (holding that the denial of qualified immunity
is immediately appealable, as officials enjoy “an entitlement not to stand
trial or face the other burdens of litigation, conditioned on the resolution
of the essentially legal question whether the conduct of which the plaintiff
complains violated clearly established law”). Therefore, even though
appellate review of a denial of qualified immunity would be possible after
a final judgment, immediate appeal is permitted to protect the right of
officials to be free from the burdens of litigation. Municipalities do not
enjoy any parallel right to be shielded from such burdens.
20 HORTON V. CITY OF SANTA MARIA

with, or subsumed in, the claim before the court on
interlocutory appeal — that is, when the appellate resolution
of the collateral appeal necessarily resolves the pendent claim
as well.” Id. at 905 (citation omitted). Here, appellate
resolution of the collateral appeal does not “necessarily”
resolve the pendent claim, for several reasons.

First, as we have explained, our qualified immunity
determination with respect to Officer Brice rests solely on the
“clearly established” law prong; we do not reach the question
of whether Officer Brice’s actions gave rise to a
constitutional violation. “[A] municipality may be liable if an
individual officer is exonerated on the basis of the defense of
qualified immunity, because even if an officer is entitled to
immunity a constitutional violation might still have
occurred.” Gibson v. County of Washoe, 290 F.3d 1175, 1186
n.7 (9th Cir. 2002), overruled on other grounds by Castro,
833 F.3d 1060. That is, the district court could still conclude
that Officer Brice did commit a constitutional violation under
the now-applicable standard and, if the other requisites of
Monell liability are met, hold the municipality liable.

Second, although the district court granted summary
judgment in favor of the individual defendants other than
Officer Brice on the ground that there was insufficient
evidence they committed a constitutional violation, the
district court could reconsider those summary judgments in
light of the new, purely objective standard for Fourteenth
Amendment failure-to-protect claims, which we announced
after the district court issued its order. See Castro, 833 F.3d
at 1068–70. Further, the district court’s grants of summary
judgment as to the individual officers other than Officer Brice
were not appealable, see 28 U.S.C. § 1291; Way v. County of
Ventura, 348 F.3d 808, 810 (9th Cir. 2003), and therefore
 HORTON V. CITY OF SANTA MARIA 21

cannot be assumed to be correct. As a result, the district court
could conclude that municipal constitutional violations
occurred involving the actions of officers other than Officer
Brice.

Third, municipal defendants may be liable under § 1983
even in situations in which no individual officer is held liable
for violating a plaintiff’s constitutional rights. As we have
previously acknowledged, constitutional deprivations may
occur “not . . . as a result of actions of the individual officers,
but as a result of the collective inaction” of the municipal
defendant. Fairley v. Luman, 281 F.3d 913, 917 (9th Cir.
2002). “If a plaintiff establishes he suffered a constitutional
injury by the City, the fact that individual officers are
exonerated is immaterial to liability under § 1983,” regardless
of whether their exoneration is “on the basis of qualified
immunity, because they were merely negligent, or for other
failure of proof.” Id. at 917 & n.4.11 Here, a reasonable jury

11
Other circuits apply the same principle in Monell cases. See Barrett
v. Orange Cty. Human Rights Comm’n, 194 F.3d 341, 350 (2d Cir. 1999)
(“[M]unicipal liability for constitutional injuries may be found to exist
even in the absence of individual liability, at least so long as the injuries
complained of are not solely attributable to the actions of named
individual defendants.”); Fagan v. City of Vineland, 22 F.3d 1283, 1292
(3d Cir. 1994) (“[A]n underlying constitutional tort can still exist even if
no individual police officer violated the Constitution. . . . If it can be
shown that the plaintiff suffered [an] injury, which amounts to deprivation
of life or liberty, because the officer was following a city policy reflecting
the city policymakers’ deliberate indifference to constitutional rights, then
the City is directly liable under section 1983 for causing a violation of the
plaintiff’s Fourteenth Amendment rights.”); Anderson v. City of Atlanta,
778 F.2d 678, 686 (11th Cir. 1985) (“Monell . . . and its progeny do not
require that a jury must first find an individual defendant liable before
imposing liability on local government.”); Garcia v. Salt Lake County,
768 F.2d 303, 310 (10th Cir. 1985) (“Monell does not require that a jury
22 HORTON V. CITY OF SANTA MARIA

might be able to conclude that Horton suffered a
constitutional deprivation “as a result of the collective
inaction” of the Santa Maria Police Department, id. at 917, or
of officers’ adherence to departmental customs or practices,
see, e.g., Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1143
(9th Cir. 2012); Long v. County of Los Angeles, 442 F.3d
1178, 1185–86 (9th Cir. 2006).

For example, taking the facts in the light most favorable
to the plaintiff, a jury might find that the Santa Maria Police
Department failed to ensure compliance with its written
policy of removing belts from detainees. The department’s
policy manual indicated that arresting or booking officers
“should” remove jackets, belts, and shoes. But, according to
Officer Schneider, the “should” was understood to be
optional and, before December 29, 2012, when the incident
occurred, the usual practice was not to remove belts. An
independent audit of the Santa Maria Police Department,
conducted shortly before the incident for unrelated reasons,
confirmed that “many SMPD members had only a passing
knowledge of Department policies,” and that custody
practices were “loose.”

Second, a reasonable jury might find that the Police
Department failed to assure proper monitoring of its security
cameras. Officer Schneider twice told Horton that, if he
needed anything, he could simply wave at the security
cameras and an officer would come over. But no officer
apparently observed Horton looping his belt through the cell
door and hanging from it for over twenty minutes before
Officer Brice returned to his cell.

find an individual defendant liable before it can find a local governmental
body liable.”).
 HORTON V. CITY OF SANTA MARIA 23

We do not decide whether any of these specific acts or
omissions, or any other, if proven, would give rise to a
municipal constitutional violation. Rather, our inquiry into
the Monell claims at this stage is purely jurisdictional. For
that purpose, we conclude that our holding that Officer Brice
is entitled to qualified immunity does not preclude the
possibility that a constitutional violation may nonetheless
have taken place, including as a result of the collective acts or
omissions of Santa Maria Police Department officers.

In sum, the pendent Monell claim is not inextricably
intertwined with a properly reviewable collateral appeal, as
our resolution of Officer Brice’s appeal from the denial of
summary judgment on qualified immunity does not
“necessarily” resolve Horton’s Monell claim. Huskey,
204 F.3d at 905. We therefore have no jurisdiction to review
the denial of summary judgment as to the municipal
defendants at this stage of the proceedings.

C. State Law Claim Against All Defendants

Finally, Officer Brice and the municipal defendants
contend they are entitled to immunity on Horton’s state law
claim. Under California law, prison officials generally cannot
be sued for failing to provide medical care to a prisoner,
unless the official knows, or reasonably should know, that the
prisoner requires immediate medical care. California
Government Code § 845.6 provides:

Neither a public entity nor a public employee
is liable for injury proximately caused by the
failure of the employee to furnish or obtain
medical care for a prisoner in his custody; but,
except as otherwise provided by Sections
24 HORTON V. CITY OF SANTA MARIA

855.8 and 856, a public employee, and the
public entity where the employee is acting
within the scope of his employment, is liable
if the employee knows or has reason to know
that the prisoner is in need of immediate
medical care and he fails to take reasonable
action to summon such medical care.

Cal. Gov’t Code § 845.6. Notably, under this statute, there is
no analogue to the second prong of federal qualified
immunity. Also, in contrast with Monell liability, California
law allows for vicarious liability of a municipality whose
employee violates the statute when acting within the scope of
employment. See Cal. Gov’t Code § 815.2.

The district court denied summary judgment to Officer
Brice and the municipal defendants on Horton’s § 845.6
claims, concluding that a reasonable jury could find that
Officer Brice had reason to know Horton faced a substantial
risk of attempting suicide and failed to take reasonable action
to summon immediate medical care.

One threshold matter: We have jurisdiction over the
denial of summary judgment as to the state law claims. For
state law immunity claims denied before trial, “the
availability of an appeal depends on whether, under state law,
the immunity functions as an immunity from suit or only as
a defense to liability.” Liberal v. Estrada, 632 F.3d 1064,
1074 (9th Cir. 2011). “A denial of summary judgment is
immediately appealable when the immunity is an immunity
from suit . . .” Id. Section 845.6 confers immunity from suit,
not only from liability, on public entities and public
employees for injuries caused by the failure to provide
 HORTON V. CITY OF SANTA MARIA 25

medical care. Castaneda v. Dep’t of Corr. & Rehab.,
212 Cal. App. 4th 1051, 1070–71 (Ct. App. 2013).

Reviewing the denial of summary judgment on the state
law immunity issue de novo, see, e.g., Hansen v. Dep’t of
Treasury, 528 F.3d 597, 600 (9th Cir. 2007), and construing
the facts in the light most favorable to Horton, the nonmoving
party, see Holmes v. Cal. Army Nat’l Guard, 124 F.3d 1126,
1131–32 (9th Cir. 1997), we hold that there is a genuine issue
of material fact as to liability on the state law claims.

“In order to state a claim under § 845.6, a prisoner must
establish three elements: (1) the public employee knew or had
reason to know of the need (2) for immediate medical care,
and (3) failed to reasonably summon such care.” Jett v.
Penner, 439 F.3d 1091, 1099 (9th Cir. 2006).

Officer Brice and the municipal defendants offer several
arguments for their immunity under § 845.6. First, they
contend that Officer Brice’s alleged failure promptly to
summon medical care is tantamount to a failure to diagnose,
for which defendants are immune from liability under
California Government Code § 855.8(a). See Cal. Gov’t
Code § 845.6 (excepting from liability claims of injury
resulting from diagnosing or failing to diagnose mental
illness). We disagree. The scope of liability for the failure to
summon medical care under § 845.6 is broader than the scope
of immunity for the failure to diagnose, prescribe, or
administer treatment under § 855.8.12 See Johnson v. County

12
California Government Code § 855.8 provides:

(a) Neither a public entity nor a public employee acting
within the scope of his employment is liable for injury
26 HORTON V. CITY OF SANTA MARIA

of Los Angeles, 143 Cal. App. 3d 298, 316–17 (Ct. App.
1983); Nelson v. State, 139 Cal. App. 3d 72, 80–81 (Ct. App.
1982). The complaint alleges that the defendants subjected
Horton to “a delay in and/or denial of medical or mental
health care,” not (or at least, not only) that they failed to
diagnose or treat his mental illness — a responsibility
typically entrusted to a medical professional. See Johnson,
143 Cal. App. 3d at 316 (“We hold that as a matter of law a
sheriff does not have the authority to make the final
determination of diagnosing that a person is, or is not,
afflicted with mental illness . . . . [S]uch determinations are
properly made by physicians and other persons trained in the
healing arts.”).

Relatedly, the defendants argue that the exception to
§ 845.6’s broad immunity rule concerns the failure to

resulting from diagnosing or failing to diagnose that a
person is afflicted with mental illness or addiction or
from failing to prescribe for mental illness or addiction.

(b) A public employee acting within the scope of his
employment is not liable for administering with due
care the treatment prescribed for mental illness or
addiction.

(c) Nothing in this section exonerates a public
employee who has undertaken to prescribe for mental
illness or addiction from liability for injury proximately
caused by his negligence or by his wrongful act in so
prescribing.

(d) Nothing in this section exonerates a public
employee from liability for injury proximately caused
by his negligent or wrongful act or omission in
administering any treatment prescribed for mental
illness or addiction.
 HORTON V. CITY OF SANTA MARIA 27

summon medical care, and Horton’s complaint centers on
Officer Brice’s own failure to return immediately to Horton’s
cell, rather than a failure to summon third-party medical care
upon finding Horton. But Horton’s complaint is not so
limited: It specifically alleges that defendants had reason to
know that “Horton was in need of immediate medical care”
and “failed to take reasonable action to summon such medical
care.” Officer Schneider’s statement that they should
“[p]robably do a psych,” indicates the kind of care that
Officer Brice could have been expected to summon once he
got off the phone with Yvonne.13 Had Officer Brice
requested a prompt psychiatric evaluation or otherwise
summoned psychiatric care, Horton could have been found
sooner and the period of anoxia he suffered shortened. We
cannot say, as a matter of law, that Officer Brice’s omissions
did not proximately cause injury to Horton. See Zeilman,
168 Cal. App. 3d at 1187.

Finally, defendants maintain that Officer Brice did not
know or have reason to know that Horton required immediate
medical care. As to this proposition, two California Court of
Appeal cases addressing § 845.6 claims premised on suicidal
ideation are instructive. In Lucas v. City of Long Beach,
60 Cal. App. 3d 341 (Ct. App. 1976), the decedent hung
himself in his cell after being arrested on charges of being
drunk and disorderly. Id. at 344–45. Reversing a jury verdict
in favor of the plaintiff, the Court of Appeal emphasized that

13
There is little doubt that ordering a psychiatric evaluation could
constitute “summoning medical care” under the California courts’ broad
view of “medical care.” See Zeilman v. County of Kern, 168 Cal. App. 3d
1174, 1187 (Ct. App. 1985) (indicating that having medical personnel
assist a pretrial detainee on crutches or providing a wheelchair would
constitute “summoning medical aid”).
28 HORTON V. CITY OF SANTA MARIA

there was “not a scintilla of evidence in the record indicating
that [the decedent’s] conduct was any different than one
might expect of a person intoxicated on either drugs or
alcohol.” Id. at 350.

By contrast, in Johnson v. County of Los Angeles, the
decedent had informed sheriffs “that he was attempting to
commit suicide and that ‘people’ were trying to torture and
kill him,” and the decedent’s wife had indicated that the
“Decedent was a paranoid schizophrenic, had been repeatedly
hospitalized, . . . required immediate medication . . . to
correct a chemical imbalance,” and “had suicidal tendencies.”
143 Cal. App. 3d at 304. The Court of Appeal reversed the
dismissal of the complaint alleging that the sheriffs breached
their statutory duty to summon medical care, and held that the
sheriffs’ “actual or constructive knowledge of Decedent’s
need for immediate care” and “reasonable action to summon
. . . such care” were “questions of fact to be determined at
trial.” Id. at 317.

This case falls between Lucas and Johnson as to the need
for mental health care. Officer Brice, unlike the sheriffs in
Johnson, was not specifically told by either Horton or his
mother that Horton “required immediate medication” or was
presently “attempting to commit suicide.” But there was
considerably more than “a scintilla of evidence” that Horton
required immediate medical attention: Officer Brice knew
from his conversation with Horton’s girlfriend that Horton
had chased his girlfriend with a knife, stabbed a friend in the
leg and sympathized with the suspects in mass homicides,
and, on the facts most favorable to Horton, had been told that
Horton was suicidal, had put cigarettes out on his face, had
recently been hospitalized after threatening to kill himself,
and would benefit from “access to mental health.” Moreover,
 HORTON V. CITY OF SANTA MARIA 29

“[i]t is significant that in . . . Lucas . . . the court’s rejection
of claims pursuant to section 845.6 was based in large part
upon failure of proof at trial.” Zeilman, 168 Cal. App. 3d at
1186. A “trier of fact” should be permitted to determine
whether the information Officer Brice had “should have given
rise to knowledge of [the] need for immediate medical care.”
Id. at 1186–87.

As to immediacy, the defendants argue that Officer Brice
could not reasonably be expected to have known the urgency
of the situation. “Liability under section 845.6 is limited to
serious and obvious medical conditions requiring immediate
care.” Watson v. State, 21 Cal. App. 4th 836, 841 (Ct. App.
1993); see id. at 843. But that immediacy standard is, under
the applicable case law, relaxed.14 In Jett v. Penner, we held
that the need for “immediate medical care” under § 845.6
arises when a prisoner is instructed that he must see a doctor
“this week” to have a fractured thumb set and placed in a
cast. 439 F.3d at 1099. Jett thus makes clear that
“immediate” does not signify urgent; rather, the obligation to
summon immediate medical care requires that the public
employee act in a “timely” manner, so as to prevent further
injury. Id. at 1093.

In sum, on the facts construed in the light most favorable
to Horton, a reasonable jury could conclude that Officer Brice
had “reason to know” Horton had a “serious” medical
condition and required “immediate medical care” as that term

14
Castro v. County of Los Angeles involved the risk of serious harm
associated with placing a combative inmate in the same cell as another
detainee. 833 F.3d at 1064. Castro did not address the question of how
“immediate” the risk of serious harm — or specifically of suicide — must
be to sustain a deliberate indifference claim under that objective standard.
30 HORTON V. CITY OF SANTA MARIA

is interpreted under California law, and that he failed timely
to summon such care. The partial dissent disagrees with us
that the evidence revealed Horton’s risk of suicide was
immediate enough to require prompt medical attention.
Partial Dissent 42–44. But this disagreement is precisely the
type of question that should be left to a jury and not decided
on summary judgement. “[Q]uestions about jail personnel’s
actual or constructive knowledge of a prisoner’s need for
immediate medical care as well as the reasonableness of
actions taken to meet this need are factual questions . . .”
Zeilman, 168 Cal. App. 3d at 1184. In reviewing the denial of
summary judgment, “[t]his court does not weigh the evidence
or determine the truth of the matter, but only determines
whether there is a genuine issue for trial.” Balint v. Carson
City, 180 F.3d 1047, 1054 (9th Cir. 1999); see also Zeilman,
168 Cal. App. 3d at 1187 (“[D]ifficulty in proof does not
equate to resolution as a matter of law.”). Whether Officer
Brice had reason to know that Horton faced a need for
immediate mental health care and failed to summon it is a
“question[] of fact to be determined at trial” on which “we
need not . . . speculate.” Johnson, 143 Cal. App. 3d at 316.
Having so determined, we affirm the district court’s denial of
summary judgment in favor of Officer Brice and the
municipal defendants on the § 845.6 claim.

Conclusion

We conclude that Officer Brice is entitled to qualified
immunity as a matter of law and so reverse the district court’s
denial of summary judgment in favor of Officer Brice on the
§ 1983 claim. We next hold that we lack jurisdiction to
review the district court’s denial of summary judgment in
favor of the municipal defendants on the § 1983 claim. In
doing so, we caution that, “it is not enough for a § 1983
 HORTON V. CITY OF SANTA MARIA 31

plaintiff merely to identify conduct properly attributable to
the municipality. The plaintiff must also demonstrate that,
through its deliberate conduct, the municipality was the
‘moving force’ behind the injury alleged.” Brown, 520 U.S.
at 404. In holding that municipal defendants may be liable in
a § 1983 action even absent a finding of liability on the part
of any individual officer — and that we therefore lack
jurisdiction to review the district court’s denial of summary
judgment in favor of the municipal defendants on Horton’s
§ 1983 claims — we express no views on whether the
municipal defendants here may properly be held liable.
Instead, we remand to permit the district court to consider the
remaining claims in light of this court’s recent guidance in
Castro and Gordon.

Finally, we affirm the district court’s denial of summary
judgment on the state law claim.

REVERSED in part, AFFIRMED in part, and
REMANDED.

BYBEE, Circuit Judge, dissenting in part:

This is a tragic case. Officer Brice’s phone call with
Horton’s mother likely left him with the impression that
Horton was a troubled young man experiencing a difficult
period in his life. The call could not have resulted in Officer
Brice preventing the suicide attempt, as it is undisputed that
Horton had already hanged himself and stopped moving by
the time the call ended. Maj. Op. 9 n.5. But had Officer
Brice checked on Horton immediately afterwards, his brain
damage could have been mitigated.
32 HORTON V. CITY OF SANTA MARIA

None of this means, however, that Officer Brice can be
held liable under the Fourteenth Amendment or California
law. I join the majority opinion in concluding that Officer
Brice is entitled to qualified immunity for Horton’s
deliberate-indifference claim under 42 U.S.C. § 1983.1 See
Maj. Op. § II.A. The evidence fails to establish that “a
reasonable officer would . . . have known that failing to attend
to Horton immediately would be unlawful.” See id. at 15.
The same reasoning dictates that we hold that Officer Brice
is entitled to state-law immunity under California
Government Code § 845.6. I would therefore also reverse the
district court as to this claim, and I respectfully dissent only
from this portion of the opinion. See Maj. Op. § II.C.

A deliberate-indifference claim under § 1983 is not
identical to a claim brought under § 845.6. The California
statute is unusual, as it “confers a broad general immunity”
on public entities and their employees, Watson v. State,
26 Cal. Rptr. 2d 262, 265 (Cal. Ct. App. 1993), yet
simultaneously imposes an affirmative duty on them that can
give rise to liability under narrow circumstances, Johnson v.
County of Los Angeles, 191 Cal. Rptr. 704, 717 (Cal. Ct. App.
1983); Nelson v. State, 188 Cal. Rptr. 479, 483 (Cal. Ct. App.
1982). Specifically, the statute’s first clause confers
immunity from suit “for injury proximately caused by the
failure of the employee to furnish or obtain medical care for
a prisoner in his custody . . . .” Cal. Gov’t Code § 845.6
(emphasis added); see also Castaneda v. Dep’t of Corr. &
Rehab., 151 Cal. Rptr. 3d 648, 663 (Cal. Ct. App. 2013). The
second clause is the exception to this rule, exposing a public

1
I also join the opinion’s subsequent section concluding that we lack
jurisdiction to review the denial of summary judgment as to Horton’s
Monell claim. See Maj. Op. § II.B.
 HORTON V. CITY OF SANTA MARIA 33

employee to suit only when he “knows or has reason to know
that the prisoner is in need of immediate medical care and he
fails to take reasonable action to summon such medical care.”
Cal. Gov’t Code § 845.6 (emphasis added). “Thus, section
845.6 creates out of the general immunity a limited cause of
action against a public entity for its employees’ failure to
summon immediate medical care only. The statute does not
create liability of the public entity for malpractice in
furnishing or obtaining that medical care.” Castaneda,
151 Cal. Rptr. 3d at 663 (first emphasis added) (citations
omitted).

To state a claim under § 845.6, a plaintiff must satisfy
three elements. See id. First, he must establish that whatever
action he contends that the defendant should have taken—the
statute is after all explicitly premised only on a failure to
act—constitutes summoning medical care. See Cal. Gov’t
Code § 845.6. Next, there is the knowledge component: the
plaintiff must prove that the defendant knew or should have
known that the plaintiff was in need of this medical care and
that the need was immediate. Id. Finally, the plaintiff must
establish that the defendant failed to act reasonably to meet
the medical need. Id.

Horton cannot satisfy either of the first two elements. He
has thus failed, as a matter of law, to establish that Officer
Brice may be subjected to suit under state law. I address each
element in turn.

I

Section 845.6 creates liability only for the failure to
summon medical care rather than for all omissions by a
public employee that cause injury to a person in his custody.
34 HORTON V. CITY OF SANTA MARIA

Consider, for instance, a Sheriff’s deputy who is tasked with
assembling a new bunk bed in a cell at a county jail and does
so negligently by failing to read the instructions and not using
all provided parts. If the bed later collapses and consequently
breaks its occupant’s leg, § 845.6 would not expose the
deputy to liability for that injury. The deputy might be liable
under some other law, but not for violating § 845.6.
Conversely, if a different deputy on duty witnessed the
accident and took no action despite the prisoner’s complaints
of pain to his leg, this second deputy would likely be liable;
he would not be immune from suit for any additional injury
caused by the delay in summoning medical care to treat the
leg. See, e.g., Jett v. Penner, 439 F.3d 1091, 1099 (9th Cir.
2006).

A claim premised on suicidal ideation creates a
particularly difficult question as to what types of omissions
would constitute a failure to summon medical care. Even if
an officer had knowledge that there was an imminent risk that
the prisoner would make an attempt on his own life, it would
be difficult to say that a failure to remove that prisoner’s
bedsheets and shoelaces would fall within this statute’s ambit
because it is not natural to describe the removal of such items
as summoning medical care. The failure to remove them
might violate some other provision of California law, but the
omission is not an obvious violation of § 845.6.

Here, our analysis is complicated by the fact that Horton’s
complaint consists of a single conclusory allegation regarding
what omissions purportedly violated § 845.6: “Defendants
. . . knew, or had reason to know, that Shane Horton was in
need of immediate medical care, supervision and
safeguarding and that he was suicidal and at risk of injuring
himself, but failed to take reasonable action to summon such
 HORTON V. CITY OF SANTA MARIA 35

medical care . . . .” Horton adds little clarity on appeal,
merely highlighting the fact that he was “already slumped on
the floor motionless when Officer Brice finished” the call as
evidence that he “was in immediate need of medical
attention.” But the fact that Horton needed to be resuscitated
once he had already hanged himself says nothing about what
actions Officer Brice should have taken before he returned to
Horton’s cell and discovered the suicide attempt.2 In other
words, Horton’s argument is circular; he implies that, because
he was in need of medical care once he had hanged himself,
any omission by Officer Brice constituted a failure to
summon medical care.

Ultimately, it is evident that Horton’s state-law claim, like
his § 1983 claim, is premised on his contention that “the
information communicated by . . . Horton’s mother should
have prompted [Officer Brice] to check on Horton promptly
and discover the need for immediate medical care.” As
addressed below, I do not believe Horton has provided any
evidence that Officer Brice knew or should have known that
Horton was in immediate danger of harming himself. But
even assuming that this knowledge component is satisfied,
the majority opinion does not address how Officer Brice’s
failure to check on Horton immediately after the phone call
constitutes a failure to summon medical care. The majority
has not explained why this statute even applies in this case.3

2
Horton has never alleged—nor does the record show—that Officer
Brice delayed in summoning emergency care after he discovered that
Horton had hanged himself. Rather, Officer Brice personally administered
CPR until paramedics arrived.
3
Section 845.6 grants immunity to an officer who fails to “furnish or
obtain medical care” but limits an officer’s liability to a failure “to
summon such medical care” when the officer has actual or constructive
36 HORTON V. CITY OF SANTA MARIA

The California Court of Appeal emphasized this precise
deficiency in Lucas v. City of Long Beach, where the
decedent hanged himself in his cell after being arrested on a
charge of being drunk and disorderly:

Plaintiff, [the decedent’s mother] . . . , offered
no evidence as to what kind of medical care
she claims should have been provided and
more importantly she offered no evidence as
to how such medical care could have
prevented the death. [The decedent] was not
in fact in need of immediate medical care and
clearly lack of medical care did not “cause”
the death.

True the continuous presence in the cell of a
doctor, a nurse, or, for that matter, a
policeman probably would have prevented the
suicide. The jury apparently reasoned along
these lines. Government Code section 845.6,

knowledge of its immediate need. Cal. Gov’t Code § 845.6 (emphasis
added). Therefore, this statute does not create an affirmative duty for an
officer to personally furnish medical care. Castaneda, 151 Cal. Rptr. 3d
at 666 (“Were we to conclude the duty under section 845.6 includes
furnishing, monitoring, followup, or subsequent care for the same
condition, . . . we would be expanding the liability of the public entity
beyond that contemplated by the Legislature.”). Accordingly, if an inmate
accidently severs his hand in the prison’s machine shop, a supervising
guard will undoubtedly be liable under § 845.6 for not radioing in for
immediate medical aid. The guard would, however, be immune from suit
if the inmate alleged only that the guard should have personally
administered a makeshift tourniquet. This distinction demonstrates why
California courts have concluded that the statute “is very narrowly
written,” id. at 663, and further highlights that Horton’s claim is not
premised on a failure to summon care.
 HORTON V. CITY OF SANTA MARIA 37

however, in affixing liability for failure to
summon “immediate medical care” for a
person in need thereof envisions liability for
injury resulting from the failure to treat the
physical condition requiring treatment and not
for some other incidental injury that might
have been prevented by the mere presence of
medical personnel. The jury’s findings that it
was negligence not to provide medical
treatment and that that failure was the “cause”
of death are not supported by any evidence to
be found in the record.

131 Cal. Rptr. 470, 475 (Cal. Ct. App. 1976) (emphasis
added). Lucas thus demonstrates that, as discussed above, not
all forms of omission give rise to liability under § 845.6.
Although Officer Brice’s presence in Horton’s cell
immediately after the call may have prevented Horton from
suffering the degree of brain damage that he did, any failure
to check on Horton sooner falls outside the statute’s narrow
exception to immunity.

Rather than confronting this dispositive flaw in Horton’s
state-law claim,4 the majority summarily asserts that the
claim is “not . . . limited” to “Officer Brice’s own failure to
return immediately to Horton’s cell . . . .” Maj. Op. 27.
Tellingly, the majority supports this conclusion by citing only
to Horton’s complaint, which, as seen above, does not allege

4
The majority fails to address the above-quoted reasoning in Lucas
regarding the medical-care element under § 845.6. Instead, the majority
addresses Lucas only in the context of the statute’s knowledge
element—i.e., whether Officer Brice should have known that Horton
posed an immediate suicide risk. Maj. Op. 27–29.
38 HORTON V. CITY OF SANTA MARIA

a single specific action that Officer Brice failed to take. See
id. This is unsurprising. Nothing in Horton’s briefing or the
record indicates that his claim, as to Officer Brice, is
premised on anything other than the officer not immediately
checking on him.

Undeterred, the majority supplements Horton’s claim for
him, concluding that Officer Brice could have ordered a
psychiatric evaluation for Horton—as Officer Schneider
suggested earlier that day.5 Id. I have two objections. First,
Horton has never contended that such an evaluation is the
type of medical care that Officer Brice should have
summoned after the call with his mother. It is improper for
the majority to deny Officer Brice state-law immunity based
on an argument that it manufactured. See Greenwood v. FAA,
28 F.3d 971, 977 (9th Cir. 1994).

But second, even if properly before us, this new argument
does not cure this claim. The majority’s assertion that Officer
Brice should have ordered a psychiatric evaluation is a
circuitous attempt to argue that the officer or third-party
medical personnel failed to furnish medical care and, in the
process, could have more quickly discovered the suicide
attempt. California cases have repeatedly rejected such
claims. See, e.g., Lucas, 131 Cal. Rptr. at 475 (“[S]ection
845.6 . . . , in affixing liability for failure to summon
‘immediate medical care’ for a person in need thereof
envisions liability for injury resulting from the failure to treat

5
Officer Schneider referenced “[p]robably do[ing] a psych or
something” to Horton after the two had a half-an-hour conversation.
Officer Brice was not at the police station at the time, and the record does
not show that Schneider later conveyed this suggestion or the
conversation’s content to Brice.
 HORTON V. CITY OF SANTA MARIA 39

the physical condition requiring treatment and not for some
other incidental injury that might have been prevented by the
mere presence of medical personnel.”); see also Castaneda,
151 Cal. Rptr. 3d at 663–64 (discussing “[t]he distinction
between failure to summon medical care—for which the State
can be held liable under section 845.6—on the one hand, and
negligence in providing care—for which the State is
immune—on the other hand”); id. at 664 n.10, 666 (repeating
the point); Nelson, 188 Cal. Rptr. at 485 (“Failure of a
practitioner to prescribe or provide necessary medication or
treatment . . . is . . . medical malpractice . . . [but] cannot be
characterized as a failure to summon medical care.”).

Moreover, the medical care that the majority insists upon
would not have addressed Horton’s medical needs—he had
already hanged himself by the time that the call ended. There
is also no evidence that ordering a psychiatric evaluation
would have resulted in Officer Brice more quickly checking
on Horton. Officer Brice could have ordered an
evaluation—a paperwork or telephone request—without
checking on Horton. It is likely that doing so would have
required the officer to spend additional time on administrative
tasks outside of Horton’s presence, only further delaying his
return to the cell. Accordingly, Horton has failed to show
that any purported omission by Officer Brice falls within the
scope of § 845.6 liability.

By disregarding the statute’s medical-care element, the
majority opinion undermines California’s intent to immunize
its employees and to allow suit only when an employee has
actual or constructive knowledge of an immediate medical
need. The opinion has converted § 845.6 into a general
negligence provision, ignoring “[t]he limited nature of the
40 HORTON V. CITY OF SANTA MARIA

duty to summon under section 845.6.” Castaneda, 151 Cal.
Rptr. 3d at 666.

II

Even if Horton could establish that any omission
constituted a failure to summon medical care, he has
separately failed to provide evidence that Officer Brice knew
or should have known that there was an immediate danger
that he would harm himself. In concluding that Horton has
raised a triable issue, the opinion cites to Zeilman v. County
of Kern for the proposition that “jail personnel’s actual or
constructive knowledge of a prisoner’s need for immediate
medical care as well as the reasonableness of actions taken to
meet this need are factual questions . . . .” 214 Cal. Rptr. 746,
753 (Cal. Ct. App. 1985); Maj. Op. 30. But even Zeilman
recognized that summary judgment on § 845.6 claims can be
appropriate in some circumstances, 214 Cal. Rptr. at 754, and
its facts are distinguishable from this case.

In Zeilman, the plaintiff was being booked at the county
jail following her arrest and was relying on crutches due to a
ski accident. Id. at 747–48. After the booking process was
complete, a deputy directed the plaintiff to sit down at a
nearby chair, but she fell when her crutches slipped out from
under her. Id. at 748–49, 754. In opposing summary
judgment on her § 845.6 claim, she presented a declaration
from her attorney “stating that he arrived at the jail during the
booking procedure and could observe his client being booked,
in an ‘aggitated [sic], emotional and weakened condition
which was easily apparent to him and any other person in his
vicinity.’” Id. at 748 (emphasis added). The Court of Appeal
reversed the trial court’s grant of summary judgment,
reasoning that a jury had to determine whether this evidence
 HORTON V. CITY OF SANTA MARIA 41

and the plaintiff’s use of crutches “should have given rise to
knowledge of her need for immediate medical care.” Id. at
754.

In reaching this conclusion, Zeilman distinguished these
facts from Lucas, the detainee-suicide case discussed above.
Id. at 753–55. In Lucas, the plaintiff not only failed to
establish that the officer’s purported omission constituted
medical care, but she also failed to provide evidence that the
officer should have known that there was an immediate
suicide risk. Lucas, 131 Cal. Rptr. at 475. Indeed the
decedent was merely drunk and visibly upset about “the
effect that his arrest would have on his mother . . . .” Id.
(“[T]here is not a scintilla of evidence in the record indicating
that his conduct was any different than one might expect of
a person intoxicated on either drugs or alcohol.”).

The Zeilman court also addressed Kinney v. County of
Contra Costa, where the detainee merely asked the officer if
she could be given something for “a very bad headache” and
was denied. 87 Cal. Rptr. 638, 644 (Cal. Ct. App. 1970).
Although the plaintiff claimed she was “ready to collapse” by
the time she was released from the police station, the Court of
Appeal held that a request for aspirin “cannot reasonably be
deemed notice ‘that the prisoner is in need of immediate
medical care.’” Id.

In distinguishing Lucas and Kinney, Zeilman emphasized
that both earlier cases had proceeded to a jury but that the
plaintiffs had failed to produce sufficient evidence at trial.6

6
In Lucas, a jury rendered a verdict in the plaintiff’s favor, but the
Court of Appeal reversed on a sufficiency-of-the-evidence claim. 131 Cal.
Rptr. at 474. The trial court in Kinney issued a judgment of nonsuit at the
42 HORTON V. CITY OF SANTA MARIA

214 Cal. Rptr. at 754. The majority in our case highlights this
point without acknowledging that the Zeilman court
nonetheless concluded that summary judgment might have
been proper in both Lucas and Kinney. Id. Accordingly,
Zeilman does not stand for the proposition that a § 845.6
claim per se precludes summary judgment. Such relief would
have certainly been warranted in Lucas, where the plaintiff
failed to provide evidence supporting the medical-care and
knowledge elements. In contrast, the plaintiff in Zeilman
came forward with at least some evidence that the deputy
should have known she was in need of immediate assistance7
in the form of her lawyer’s attestation that her weakened
condition was visibly and readily apparent.

This brings me to the evidence in this case. Horton’s
mother testified during her deposition that she told Officer
Brice “‘everything’ about the December 13, 2012
incident—Horton’s use of drugs, the cigarette marks on his
face and hands, the knife he held to his throat, his
hospitalization with an initial ‘5150’ hold for risk of suicide,
the CARES official’s conclusion that he could be discharged
because his conduct was due to drugs not suicidal ideation,
and [Mrs. Horton’s] disagreement with that conclusion.”
Maj. Op. 8. She “testified that she also told Officer Brice that
her son was depressed and suicidal, that she was really

close of the plaintiff’s case in chief, which the Court of Appeal affirmed.
87 Cal. Rptr. at 644.
7
I question whether failing to help the plaintiff in Zeilman to her chair
constitutes a failure to summon medical care. Although the Zeilman court
quoted the relevant medical-care language from Lucas, it did not address
that element in distinguishing the two cases, which appears not to have
been in dispute.
 HORTON V. CITY OF SANTA MARIA 43

worried about him, and that she believed he could be helped
in the judicial system.” Id.

This testimony admittedly distinguishes our case from
Lucas, where there was no evidence whatsoever that the
detainee suffered from suicidal ideation. But even when the
evidence here is taken in the light most favorable to Horton,
I would hold that no reasonable jury could find that Officer
Brice should have known that there was an immediate risk
that Horton would harm himself and that the officer therefore
needed to take immediate action. A person can suffer from
depression and suicidal thoughts for years without ever
harming himself. Indeed, the incident that Horton’s mother
described to Officer Brice occurred two weeks prior to the
arrest, and she provided no evidence that Horton had made
any attempts or threats on his life in the intervening period.
Seeking “help[] in the judicial system” is not close to a call
for immediate assistance for someone who recently exhibited
suicidal ideation.

This is not a case where Horton’s parents had imposed an
informal 24/7 suicide watch on him. His father had kicked
him out of the house after the glass-breaking incident, so it
appears Horton was living independently, without supervision
for the two weeks preceding his arrest. Moreover, his mother
did not rush down to the police station once she heard that her
son had been arrested; rather, she had just told Horton that
she would not bail him out. Horton’s mother was certainly
concerned about his well-being, but she never claims to have
expressed to Officer Brice that Horton would likely make an
attempt on his life if the officer did not take immediate action
to ensure Horton was unable to do so—e.g., by removing his
belt, moving him to a secured, padded cell, and monitoring
him constantly. It would certainly have been prudent of
44 HORTON V. CITY OF SANTA MARIA

Officer Brice to pass along the information Horton’s mother
claims to have given him to the officials at the county jail
once Horton was transferred, but that falls far short of failing
to recognize Horton’s immediate need for medical care.

Moreover, Horton’s mother testified that she spoke to
Officer Brice for ten to fifteen minutes—a substantial amount
of time. Had she thought her son was in immediate danger of
harming himself, she would have told Officer Brice to drop
the phone and rush to Horton’s cell. Indeed, if anything, the
officer’s patient call with Horton’s mother would have
reinforced that Horton needed a psychiatric
evaluation—which was likely obtainable at the county jail
rather than at the police station where Horton was being
temporarily held.

The majority does not address this absence of evidence.
Nor does it attempt to reconcile its conclusion that Officer
Brice, for the purpose of the state-law claim, should have
known that Horton posed an immediate suicide risk with our
holding regarding his § 1983 claim: “Based on these facts,
. . . a reasonable officer would not have known that failing to
attend to Horton immediately would be unlawful.” Maj. Op.
15.

The majority instead summarily cites Jett for the
proposition that the “immediacy standard” under § 845.6 is
more “relaxed” than under § 1983 deliberate-indifference
claims.8 Maj. Op. 29. But this conclusion misconstrues Jett.

8
Horton does not cite Jett. Nor does he contend that a claim
premised on suicidal ideation entails a lesser showing of immediacy of
harm under § 845.6 than under the deliberate-indifference standard.
 HORTON V. CITY OF SANTA MARIA 45

There, the emergency-room doctor instructed the prisoner-
plaintiff to follow-up with an orthopedic doctor “early this
week” after he fractured his thumb. Jett, 439 F.3d at 1094.
The plaintiff saw a prison doctor three days later, but his hand
was too swollen to be placed in a permanent cast. Id.
Despite reports of pain and numerous requests to visit an
orthopedist, it took an additional two months for the plaintiff
to be seen even by another prison doctor. Id. After four
additional months, the plaintiff finally visited an orthopedic
specialist, “who determined [the plaintiff] should be referred
to a hand specialist because the fracture had healed
improperly.” Id. at 1095. The evidence demonstrated that
the delay in seeing an orthopedist prevented the fracture from
correctly aligning. Id. at 1098.

We reversed the district court’s grant of summary
judgment on the plaintiff’s deliberate-indifference claims,
concluding that there was evidence that several prison
officials knew of but ignored the plaintiff’s need to set his
fracture. Id. In regard to his § 845.6 claim, we held that there
was “a triable issue of fact . . . as to whether [the plaintiff]
received immediate medical care for his diagnosed fractured
thumb because the fracture was not set and placed in a cast.”
Id. at 1099. We reasoned that “the need for ‘immediate
medical care’ can arise more than once in relation to an
ongoing serious medical condition” and that this need “arose
as soon as [the plaintiff’s] swelling subsided and his fracture
could be reduced and a cast applied.” Id. (emphasis added).

Accordingly, Jett provides no insight into how immediate
a medical need must be under § 845.6. The plaintiff’s

Again, it is improper for the majority to raise arguments that Horton has
failed to advance.
46 HORTON V. CITY OF SANTA MARIA

medical condition was ongoing and his need for care
resurfaced as soon as his reduced swelling made the original
prescribed treatment possible.9 Thus, the key point in Jett
regarding both § 845.6 and deliberate indifference is that
there was evidence that prison officials had actual knowledge
that the plaintiff had a time-sensitive medical need and took
no action for many months. The case does not support the
majority’s conclusion.

In my view, Horton’s claim fails because he has not
provided evidence that Officer Brice should have known that
Horton posed such a degree of suicide risk that the officer
should have immediately rushed to his cell instead of
spending twelve to seventeen minutes arranging to transfer
Horton and another detainee to county jail.

III

I sympathize deeply with Horton and his mother, but there
is no basis under California law for subjecting Officer Brice

9
The California Court of Appeal has criticized our conclusion in Jett,
reasoning that the duty to summon medical care does not extend to
ensuring that proper follow-up treatment—i.e., setting the fracture—is
eventually provided. Castaneda, 151 Cal. Rptr. 3d at 666 (“[T]he Ninth
Circuit’s application of section 845.6 ignores California authority
interpreting that statute. California courts hold the failure to prescribe
necessary medication or, once summoned to provide treatment, to ensure
proper diagnosis, or to monitor the progress of an inmate that the public
employee has been summoned to assist, are issues relating to the manner
in which medical care is provided, and do not subject the State to liability
under section 845.6 for failure to summon.”). The majority opinion
creates additional tension between Jett and Castaneda because Jett is
inapposite and should not have been cited. See Scalia v. County of Kern,
308 F. Supp. 3d 1064, 1087 (E.D. Cal. 2018) (declining to follow Jett’s
interpretation of § 845.6 in light of Castenada).
 HORTON V. CITY OF SANTA MARIA 47

to suit. Considered in the light most favorable to Horton, the
events earlier that day and the phone call with his mother did
not imbue Officer Brice with the actual or constructive
knowledge that Horton would attempt suicide at any moment.
And although it may have been prudent for Officer Brice to
immediately check on Horton, his decision not to do so is not
a failure to summon medical care. For these two independent
reasons, I would reverse the district court’s denial of
summary judgment to Officer Brice on Horton’s § 845.6
claim.

I respectfully dissent as to this claim.