Ana Sandoval v. County of San Diego

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ANA SANDOVAL, individually and as No. 18-55289
successor in interest to Ronnie
Sandoval, Jr.; RONNIE SANDOVAL, D.C. No.
JR.; JOSIAH SANDOVAL, 3:16-cv-01004-
Plaintiffs-Appellants, BEN-AGS

v.
OPINION
COUNTY OF SAN DIEGO; ROMEO DE
GUZMAN; MARIA LLAMADO; DANA
HARRIS,
Defendants-Appellees.

Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding

Argued and Submitted October 16, 2019
Submission Vacated March 16, 2020
Resubmitted January 6, 2021
Pasadena, California

Filed January 13, 2021
2 SANDOVAL V. COUNTY OF SAN DIEGO

Before: Kim McLane Wardlaw and Daniel P. Collins,
Circuit Judges, and Joseph F. Bataillon, * District Judge.

Opinion by Judge Wardlaw;
Partial Concurrence and Partial Dissent by Judge Collins

SUMMARY **

Civil Rights

The panel ordered the appeal resubmitted, reversed the
district court’s summary judgment and remanded in an
action brought pursuant to 42 U.S.C. § 1983 against the
County of San Diego and three nurses alleging that
defendants violated Ronnie Sandoval’s Fourteenth
Amendment right to adequate medical care while he was in
custody at the San Diego Central Jail.

Sandoval died of a methamphetamine overdose at the
San Diego Central Jail after medical staff left him
unmonitored for eight hours, despite signs that he was under
the influence of drugs, and then failed to promptly summon
paramedics when they discovered him unresponsive and
having a seizure.

Concluding that the district court abused its discretion by
summarily sustaining the defendants’ meritless—indeed

*
The Honorable Joseph F. Bataillon, United States District Judge
for the District of Nebraska, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 SANDOVAL V. COUNTY OF SAN DIEGO 3

frivolous—evidentiary objections, the panel considered the
objected-to evidence. Turning to the merits, the panel first
noted that after the district court issued its decision, this
court clarified in Gordon v. County of Orange, 888 F.3d
1118, 1124–25 (9th Cir. 2018), that an objective standard
applies to constitutional claims of inadequate medical care
brought by pretrial detainees. In light of Gordon, the district
court erred by applying the subjective deliberate indifference
standard to plaintiff’s Fourteenth Amendment claim.
Because the parties had briefed Gordon’s objective
framework on appeal, the panel applied it here.

Applying the Gordon framework and viewing the
evidence in plaintiff’s favor, the panel held that a jury could
conclude that Sandoval would not have died but for the
defendants’ unreasonable response to his obvious signs of
medical distress. Specifically, a jury could conclude that a
reasonable nurse who was told that Sandoval was shaking,
tired, and disoriented—and who was specifically directed by
a deputy to evaluate Sandoval more thoroughly—would
have understood that Sandoval faced a substantial risk of
suffering serious harm. Defendant Nurse Romeo de
Guzman therefore was not entitled to summary judgment on
liability. The panel reached the same conclusion for the
claims against Nurses Dana Harris and Maria Llamado,
concluding that their failure to promptly call paramedics was
objectively unreasonable.

The panel further held that plaintiff had demonstrated
that the available law was clearly established at the time as
to the unreasonableness of the nurses’ conduct. The panel
concluded that a reasonable nurse, knowing what Llamado,
Harris, and de Guzman knew, would have understood that
failing to call paramedics (Llamdo and Harris), or failing to
check on Sandoval for hours and failing to pass on
4 SANDOVAL V. COUNTY OF SAN DIEGO

information about his condition (de Guzman), presented
such a substantial risk of harm to Sandoval that the failure to
act was unconstitutional. Accordingly, the nurses were not
entitled to qualified immunity.

The panel held that viewing the evidence in the light
most favorable to plaintiff, there was a triable issue of fact
as to the County’s liability under Monell v. Department of
Social Services, 436 U.S. 658, 694 (1978).

Concurring in the judgment in part and dissenting in part,
Judge Collins agreed with the majority’s ultimate conclusion
that Nurses Harris and Llamado were not entitled to
summary judgment, but he would affirm the district court’s
grant of summary judgment to Nurse de Guzman and to the
County of San Diego. Judge Collins wrote that because in
2014, the then controlling deliberate-indifference liability
standards included a subjective element, plaintiff had to
make a showing of subjective deliberate indifference to
defeat qualified immunity, and she had to do so even though
that subjective element of the test for liability has since been
overruled. Because plaintiff failed to present sufficient
evidence to show that Nurse de Guzman was subjectively
aware of Sandoval’s serious medical needs, de Guzman was
entitled to qualified immunity. Judge Collins further stated
that there was no evidence that the County had an
unconstitutional policy, practice or custom. Finally, as to
Nurses Harris and Llamdo, the sharply conflicting evidence
indicated that they subjectively knew that the paramedics
needed to be called. Because Judge Collins’s reasoning
differed from the majority’s even with respect to Harris and
Llamado, he concurred only in the judgment in part, and
otherwise respectfully dissented.
 SANDOVAL V. COUNTY OF SAN DIEGO 5

COUNSEL

Christopher S. Morris (argued), Morris Law Firm APC, San
Diego, California, for Plaintiffs-Appellants.

Fernando Kish (argued) and James M. Chapin, Senior
Deputies; Thomas E. Montgomery, County Counsel; Office
of County Counsel, San Diego, California; for Defendants-
Appellees.

OPINION

WARDLAW, Circuit Judge:

Ronnie Sandoval died of a methamphetamine overdose
at the San Diego Central Jail after medical staff left him
unmonitored for eight hours, despite signs that he was under
the influence of drugs, and then failed to promptly summon
paramedics when they discovered him unresponsive and
having a seizure. Sandoval’s wife and successor-in-interest,
Ana Sandoval (Plaintiff), brought suit under 42 U.S.C.
§ 1983 against the County of San Diego and Nurses Romeo
de Guzman, Dana Harris, and Maria Llamado, alleging that
they violated Sandoval’s Fourteenth Amendment right to
adequate medical care in custody.

The district court granted summary judgment to the
defendants, concluding that there were no triable issues of
fact as to their liability and that the individual nurses were
entitled to qualified immunity. After the district court issued
its decision, we clarified that an objective standard applies
to constitutional claims of inadequate medical care brought
by pretrial detainees. Gordon v. County of Orange, 888 F.3d
1118, 1124–25 (9th Cir. 2018). Applying that standard here,
we reverse because genuine disputes of material fact
6 SANDOVAL V. COUNTY OF SAN DIEGO

preclude the award of summary judgment, and we remand
for further proceedings.

I.

Many of the facts underlying this case are in dispute. We
recount them in the light most favorable to Plaintiff, as the
non-moving party in the district court. Tuuamalemalo v.
Greene, 946 F.3d 471, 474 (9th Cir. 2019) (per curiam).

A.

On February 22, 2014, deputies from the San Diego
Sheriff’s Department went to Ronnie Sandoval’s residence
to conduct a probation compliance check. After the deputies
found a gram of methamphetamine and drug paraphernalia,
they placed Sandoval under arrest and took him to the San
Diego Central Jail. Unbeknownst to the arresting deputies,
Sandoval had swallowed an additional amount of
methamphetamine—later estimated to be several hundred
times the typical recreational dose—in an effort to prevent
its discovery.

At the jail, Deputy Matthew Chavez noticed that
Sandoval was sweating and appeared disoriented and
lethargic. When asked about these symptoms, Sandoval told
Chavez that he might be diabetic. A nurse tested Sandoval’s
blood sugar level, which came back normal, and Sandoval
was placed in a holding cell.

Approximately one hour later, Sandoval was removed
from the cell to have his booking photograph taken. Deputy
Chavez observed that Sandoval “was still sweating a lot and
appeared to be very tired and disoriented.” Chavez asked
Sandoval if he was ok. Sandoval responded that he was very
cold, which Chavez found odd because Sandoval was
 SANDOVAL V. COUNTY OF SAN DIEGO 7

sweating. Another deputy asked Sandoval if he had
swallowed anything, and Sandoval became agitated and
refused to answer further questions.

Deputy Chavez took Sandoval to the second-floor
medical station for an assessment. There he encountered
Nurse Romeo de Guzman. Chavez told de Guzman that
while Sandoval had been cleared by the medical staff
downstairs, he was sweating and appeared disoriented and
lethargic. According to Chavez, he specifically told de
Guzman, “there [is] still something going on [with
Sandoval], so you need to look at him more thoroughly.”1
De Guzman told Chavez to put Sandoval in Medical
Observation Cell No. 1 (MOC1).

Shortly thereafter, around 5:00 p.m., de Guzman entered
MOC1 to attend to Sandoval. Leonard Rodriguez, a deputy
who accompanied de Guzman into the cell, noticed that
Sandoval was “shaking mildly” and “appeared to be having
withdrawals from drugs.” De Guzman gave Sandoval a
second, and “very quick,” blood sugar test, which came back
normal and then left the cell without conducting any further
examination.

From there, accounts diverge. Nurse de Guzman claims
that he told deputies that Sandoval was “cleared for booking
process.” But according to Deputy Rodriguez’s written,
contemporaneous police report, de Guzman instead asked
whether Sandoval could be moved to a “sobering tank.” The
deputies conferred and determined that it would be better if

1
Nurse De Guzman contends that he was told only to check
Sandoval’s blood sugar level, but on summary judgment, we must accept
Deputy Chavez’s version of events.
8 SANDOVAL V. COUNTY OF SAN DIEGO

Sandoval remained in MOC1, presumably so that he would
be subject to closer observation by the medical staff.

All agree that Sandoval was not transferred and instead
remained in MOC1. And it is undisputed that even though
MOC1 was only 20 feet from the nursing station, Nurse de
Guzman did not check on Sandoval at any point during the
remaining six hours of his shift. When the next shift of
nurses arrived at 11:00 p.m., de Guzman did not tell them
anything about Sandoval either. When asked why he never
checked on Sandoval, de Guzman responded simply, “I
don’t have to.”

The failure to monitor Sandoval may have resulted in
part from the “mixed use” nature of MOC1. While MOC1
was sometimes used to hold inmates requiring medical care,
it was used at other times as an ordinary holding cell. Unlike
other cells used for inmates with medical issues, no nurses
were specifically assigned to monitor individuals being held
in MOC1. Instead, nurses would attend to MOC1 only if
told that an individual who was placed there needed care.

This sometimes caused confusion. For example, Nurse
de Guzman claims that he did not check on Sandoval
because he believed that MOC1 was used exclusively as an
ordinary holding cell and that Sandoval was being held there
for correctional, rather than medical, purposes. In contrast,
the deputies believed that by leaving Sandoval in MOC1,
they would ensure that he would be monitored by the
medical staff.

Whatever the cause, Sandoval remained almost entirely
unmonitored for nearly eight hours until Sergeant Robert
Shawcroft walked past MOC1 at 12:55 a.m. and noticed that
Sandoval’s eyes “weren’t tracking” and that his skin tone
 SANDOVAL V. COUNTY OF SAN DIEGO 9

“wasn’t a fleshy color.” 2 As Shawcroft watched, Sandoval
slumped over and his eyes rolled back in his head.
Shawcroft turned away to call for help, and when he turned
back, he saw Sandoval hit his head on the wall and slide
down to the floor.

Sergeant Shawcroft entered Sandoval’s cell and was
soon joined by Deputies Nolan Edge and Matthew Andrade,
and Nurses Dana Harris and Maria Llamado. Sergeant
Shawcroft, Deputy Andrade, Deputy Edge, and Nurse
Llamado all agree that Sandoval was unresponsive and
having a seizure or “seizure-like activity.” In contrast, Nurse
Harris contends that Sandoval was responsive, followed
verbal commands, and was not seizing.

Whether Sandoval was unresponsive and seizing bears
on an important distinction in this case between emergency
medical technicians (EMTs) and paramedics. While the
terms are sometimes used interchangeably, paramedics
receive more advanced training than EMTs. EMTs can
provide only basic life support (BLS) procedures, such as
performing CPR and providing a patient with an oxygen
mask. In contrast, paramedics are trained to perform
advanced cardiovascular life support (ACLS) procedures,
including establishing IVs, administering medications,
reading heart rhythms, and inserting breathing tubes.
Critically, when a patient is unresponsive, paramedics are
required. In San Diego at least, EMTs will not transport
unresponsive patients.

2
Other than one deputy who briefly checked on Sandoval around
7:30 p.m., it appears that nobody entered MOC1 between around
5:00 p.m., when Nurse de Guzman performed the blood test, and 12:55
a.m., when Sergeant Shawcroft observed Sandoval in medical distress.
10 SANDOVAL V. COUNTY OF SAN DIEGO

Because Nurse Harris was the first nurse to arrive on the
scene, she became the “team leader” with primary
responsibility for directing Sandoval’s treatment. The
evidence shows that even though Harris was told several
times to call paramedics because Sandoval was
unresponsive, she refused to do so.

Deputy Andrade, who happened to be a trained EMT,
asked two or three times for paramedics to be called. Harris
did not do so. Nurse Llamado says that she directly told
Harris, “He has to go out 9-1-1,” meaning that paramedics
were needed. Harris responded, “No, EMT.” Llamado then
telephoned the charge nurse, Shirley Bautista, who also said
that paramedics should be summoned. Llamado put the
phone down and told Harris, “Shirley said he has to go now
9-1-1.” Despite all of this, Harris still refused to call
paramedics. 3

It is undisputed that EMTs were initially summoned
instead of paramedics. When the EMTs arrived around
1:20 a.m., they informed the nurses and deputies that “they
would not be able to transport Sandoval in the current
condition he was in.” Paramedics were then called and
arrived at 1:42 a.m.—47 minutes after Sandoval was first
observed to be unresponsive and seizing. According to
Deputy Andrade, Sandoval still had a pulse when the
paramedics arrived. But he lost his pulse when he was
transferred to a gurney. Resuscitation efforts failed, and
Sandoval was pronounced dead at 2:11 a.m.

3
Harris denies that Deputy Andrade and Nurse Llamado told her to
call paramedics, and contends that she did not believe paramedics were
necessary because, in her view, Sandoval was responsive,
communicative, and breathing on his own. On summary judgment, we
must accept Andrade and Llamado’s very different version of events.
 SANDOVAL V. COUNTY OF SAN DIEGO 11

During discovery, it was revealed that Nurse Harris did
not know on the night of the incident that only paramedics,
and not EMTs, could provide the ACLS treatment that
Sandoval required—even though this was common
knowledge among nurses. Nurse Llamado later admitted
that she should have called paramedics herself when Harris
refused to do so, and that she had “learned [her] lesson.”

B.

Sandoval’s wife, Ana Sandoval, filed this suit in
California state court against Nurses de Guzman, Harris, and
Llamado, and the County of San Diego. The complaint
alleged that the individual nurses had violated the Fourteenth
Amendment by failing to provide Sandoval adequate
medical care, and that the County was likewise liable
because its policy of using MOC1 as a mixed used cell,
without proper communication protocols, created the
confusion among the medical staff that led to Sandoval’s
death. The complaint also asserted several state law claims. 4

The defendants removed the case to federal court and
later moved for summary judgment. For reasons discussed
in more depth below, the district court granted summary
judgment to the defendants on the constitutional claims
brought under 42 U.S.C. § 1983 and declined to exercise
supplemental jurisdiction over the state law claims. Plaintiff
timely appealed.

4
Sandoval’s children Ronnie Sandoval Jr. and Josiah Sandoval were
named as additional plaintiffs on some of the state law claims, but not on
the constitutional claims under § 1983.
12 SANDOVAL V. COUNTY OF SAN DIEGO

II.

We have jurisdiction under 28 U.S.C. § 1291. We
review the district court’s grant of summary judgment de
novo. “Summary judgment is appropriate when, with the
evidence viewed in the light most favorable to the non-
moving party, there are no genuine issues of material fact, so
that the moving party is entitled to judgment as a matter of
law.” Wilk v. Neven, 956 F.3d 1143, 1147 (9th Cir. 2020)
(citation omitted); Fed. R. Civ. P. 56(a). “Evidentiary
rulings made in the context of summary judgment motions
are reviewed for abuse of discretion . . . .” Bias v. Moynihan,
508 F.3d 1212, 1224 (9th Cir. 2007).

III.

Before discussing the merits, we address a significant
evidentiary ruling by the district court. During briefing on
the motion for summary judgment, the nurses and the
County submitted boilerplate one-word objections for
“relevance,” “hearsay,” and “foundation” to several pieces
of evidence important to Plaintiff’s case, including the report
of Plaintiff’s medical expert, the police reports of deputies at
the scene, and the San Diego County Sheriff’s Medical
Services’ standardized nursing procedures for treating
seizures. The district court sustained all of these objections
in a one-sentence ruling that read in full: “Defendants’
evidentiary objections, to which Plaintiffs did not respond,
are sustained.” This decision, which had the effect of
striking crucial evidence from the summary judgment
record, was an abuse of discretion.

The defendants’ failure to explain their one-word
objections, and the district court’s failure to explain its
ruling, makes it difficult to know precisely why the court
concluded that the evidence was inadmissible. But on the
 SANDOVAL V. COUNTY OF SAN DIEGO 13

record before us, it appears the objections were meritless, if
not downright frivolous.

To begin, objections for relevance are generally
unnecessary on summary judgment because they are
“duplicative of the summary judgment standard itself.”
Burch v. Regents of Univ. of Cal., 433 F. Supp. 2d 1110,
1119 (E.D. Cal. 2006) (Shubb, J.). On summary judgment,
a court must determine whether the evidence viewed in the
light most favorable to the non-moving party creates a
“genuine dispute as to any material fact” that must be
resolved at trial. Fed. R. Civ. P. 56(a). And under Federal
Rule of Evidence 401, evidence is relevant if it “has any
tendency to make a fact more or less probable” and that fact
“is of consequence in determining the action.” Fed. R. Evid.
401. Putting these two standards together, if evidence
submitted on summary judgment could create a genuine
dispute of material fact, it is, by definition, “of consequence
in determining the action,” and therefore relevant. Id.
Conversely, if the submitted evidence does not create a
genuine dispute of material fact, there is no need for the court
to separately determine whether it is relevant because, even
assuming it is not, it will not affect the ultimate summary
judgment ruling. We therefore agree with Judge Shubb’s
cogent observation that parties briefing summary judgment
motions would be better served to “simply argue” the import
of the facts reflected in the evidence rather than expending
time and resources compiling laundry lists of relevance
objections. Burch, 433 F. Supp. 2d at 1119.

In any event, the relevance objections here plainly lacked
merit. For example, the objected-to police reports provide
the deputies’ first-hand observations of Sandoval’s
condition, and the objected-to report of Plaintiff’s medical
expert is essential to her ability to show that Sandoval would
14 SANDOVAL V. COUNTY OF SAN DIEGO

not have died if not for the defendants’ failure to provide
adequate care. This evidence goes to the central issues in the
case and is therefore more than sufficient to clear the low bar
of relevance. 5 See Fed. R. Evid. 401.

We reach the same conclusion with regard to the hearsay
objections. Because the defendants did not explain these
objections, we are largely reduced to guessing at the
arguments underlying them. One possibility is that the
defendants objected on the ground that the documents
themselves would not be admissible at trial because they are
out-of-court statements offered for their truth. See Fed. R.
Evid. 801(c), 802. But “[a]t the summary judgment stage,
we do not focus on the admissibility of the evidence’s form.
We instead focus on the admissibility of its contents.”
Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003); see
Fed. R. Civ. P. 56(c)(2). If the contents of a document can
be presented in a form that would be admissible at trial—for
example, through live testimony by the author of the
document—the mere fact that the document itself might be
excludable hearsay provides no basis for refusing to consider
it on summary judgment. Fraser, 342 F.3d at 1036–37
(holding that the plaintiff’s diary could be considered on

5
The defendants provided an explanation for only one of their
several objections, but in a twist of irony, that explanation makes clear
that the objection lacked merit. The defendants objected to the Sheriff’s
Department Medical Services Standardized Nursing Procedure on
Seizure Disorder on the ground that “Nurse Harris determined that
[Sandoval] was not having a seizure.” But whether Nurse Harris knew
Sandoval was having a seizure is a hotly disputed issue in this case. It
goes without saying that a district court evaluating an objection on
summary judgment cannot simply accept the moving party’s version of
disputed facts when determining which evidence is relevant.
 SANDOVAL V. COUNTY OF SAN DIEGO 15

summary judgment because she could testify consistent with
its contents at trial).

Here, the objected-to documents either reflect the
personal knowledge of individuals who could be called to
testify at trial or will likely be admissible at trial under
exceptions to the hearsay rule. For example, Plaintiff’s
expert witnesses can testify about the opinions expressed in
their expert reports, and the deputies and medical examiner
can testify about the personal observations reflected in their
official reports. See id. To the extent the police reports
recount statements made by the defendants in this case, they
would be admissible as non-hearsay statements of a party
opponent. See Fed. R. Evid. 801(d)(2). Hearsay therefore
provided no basis for excluding the objected-to documents
in their entirety. And to the extent the defendants intended
to object to only parts of the documents, their unexplained
generalized objections were insufficient to raise such an
objection. See Fed. R. Evid. 103(a)(1)(B); United States v.
Holland, 880 F.2d 1091, 1095 (9th Cir. 1989) (“Holland’s
blanket objection to the admission of the tape does not
preserve an objection to failure to redact the tape.”).

As for the foundation objections, “an objection to
admission of evidence on foundational grounds must give
the basis for objection in a timely way to permit the
possibility of cure.” Jerden v. Amstutz, 430 F.3d 1231, 1237
(9th Cir. 2005); accord 21 Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 5036.7 (2d ed. 2020
update). The defendants’ one-word objections for
“foundation” fell well short of providing Plaintiff with notice
of the specific ground of objection and, consequently, what
could be done to cure any defects. Accordingly, these
objections also provided no basis for excluding the evidence.
16 SANDOVAL V. COUNTY OF SAN DIEGO

In an attempt to justify the district court’s evidentiary
ruling, the defendants point to a local rule of the District
Court for the Southern District of California that provides
that the failure to file timely opposition papers “may
constitute a consent to the granting of a motion or other
request for ruling by the court.” See S.D. Cal. Local Rule
7.1.f.3.c. It is not clear that this rule applies to a failure to
file a written response to evidentiary objections. 6 But in any
event, the district court did not mention this rule or any other
in sustaining the defendants’ objections, and we will not
simply assume that it formed the basis for the evidentiary
ruling. 7

Because we conclude that the district court abused its
discretion by summarily sustaining the defendants’
meritless—indeed frivolous—evidentiary objections, we
will consider that evidence.

6
Southern District of California Local Rule 7.1.f.3.c provides that
when a party “fails to file [opposition] papers in a manner required by
Civil Local Rule 7.1.e.2,” the court may grant the opposing party’s
request. S.D. Cal. Local Rule 7.1.f.3.c. The referenced rule—Rule
7.1.e.2, which sets the time for filing an opposition—applies only to
“motion[s], application[s], or order[s] to show cause.” S.D. Cal. Local
Rule 7.1.e.2. It is not clear that evidentiary objections submitted in
conjunction with a reply brief in support of a motion for summary
judgment constitute a “motion” or “application” within the meaning of
the rule. Other provisions of Local Rule 7.1 are ambiguous on this point.

7
We therefore have no occasion to address whether applying this
local rule rigidly would amount to an abuse of discretion where, as here,
it would effectively prevent a plaintiff from satisfying her burden on
summary judgment. See Ghazali v. Moran, 46 F.3d 52, 53–54 (9th Cir.
1995) (per curiam) (explaining the factors a district court must consider
when applying a local rule would result in the dismissal of a case).
 SANDOVAL V. COUNTY OF SAN DIEGO 17

IV.

Turning to the merits, we begin with a brief history of
constitutional claims based on inadequate medical care,
which, for reasons that will become apparent, provides
important context for understanding the issues presented by
this case.

A.

Individuals in state custody have a constitutional right to
adequate medical treatment. See Estelle v. Gamble, 429 U.S.
97, 104–05 (1976). For inmates serving custodial sentences
following a criminal conviction, that right is part of the
Eighth Amendment’s guarantee against cruel and unusual
punishment. Id. However, pretrial detainees have not yet
been convicted of a crime and therefore are not subject to
punishment by the state. Accordingly, their rights arise
under the Fourteenth Amendment’s Due Process Clause.
Bell v. Wolfish, 441 U.S. 520, 535–36, 335 n.16 (1979).

Claims brought by convicted prisoners under the Eighth
Amendment are governed by what we have called a
“subjective deliberate indifference” standard. Gordon,
888 F.3d at 1122; see Edmo v. Corizon, Inc., 935 F.3d 757,
786 (9th Cir. 2019) (per curiam), cert. denied sub nom. ID
DOC, ET AL. v. Edmo, No. 19-1280, 2020 WL 6037411
(U.S. Oct. 13, 2020). Under this standard, a prison official
will be liable for disregarding an inmate’s serious medical
needs only if he was both “aware of facts from which the
inference could be drawn that a substantial risk of serious
harm exists” and actually “dr[e]w the inference.” Peralta v.
Dillard, 744 F.3d 1076, 1086 (9th Cir. 2014) (en banc)
(quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)).
Thus, a prison official who “should have been aware” of a
medically related risk to an inmate, but in fact was not, “has
18 SANDOVAL V. COUNTY OF SAN DIEGO

not violated the Eighth Amendment, no matter how severe
the risk.” Id. (quoting Gibson v. Cnty. of Washoe, 290 F.3d
1175, 1188 (9th Cir. 2002)).

Because pretrial detainees “retain at least those
constitutional rights that we have held are enjoyed by
convicted prisoners,” Bell, 441 U.S. at 545, we have
sometimes looked to the Eighth Amendment as a starting
point for determining the rights of pretrial detainees under
the Fourteenth Amendment. Carnell v. Grimm, 74 F.3d 977,
979 (9th Cir. 1996) (“[T]he [E]ighth [A]mendment
guarantees provide a minimum standard of care for
determining a prisoner’s rights as a pretrial detainee,
including the prisoner’s rights to medical care.” (emphasis
removed and cleaned up)). And in the context of claims of
inadequate medical care, we had previously concluded that
the Eighth Amendment and Fourteenth Amendment
standards were precisely the same. See, e.g., Simmons v.
Navajo Cnty., 609 F.3d 1011, 1017 (9th Cir. 2010). That is,
to succeed on a claim of inadequate medical care, both
convicted prisoners and pretrial detainees were required to
establish subjective deliberate indifference on the part of the
defendant. Id.

The Supreme Court’s decision in Kingsley v.
Hendrickson, 576 U.S. 389 (2015), however, cast doubt on
our practice of evaluating Eighth Amendment and
Fourteenth Amendment claims under the same standard.
Kingsley involved claims that jail officials had used
excessive force against a pretrial detainee. Id. at 391. When
such claims are brought by convicted prisoners under the
Eighth Amendment, liability turns on “whether force was
applied in a good faith effort to maintain or restore
discipline.” Whitley v. Albers, 475 U.S. 312, 320 (1986)
(citation omitted); see also Hoard v. Hartman, 904 F.3d 780,
 SANDOVAL V. COUNTY OF SAN DIEGO 19

787–88 (9th Cir. 2018). The question presented in Kingsley
was whether the Eighth Amendment subjective good faith
standard also applies to Fourteenth Amendment excessive
force claims brought by pretrial detainees. 576 U.S. at 391–
92.

The Court held that the Eighth Amendment and
Fourteenth Amendment standards were not the same. Id.
at 400 (“The language of the two Clauses differs, and the
nature of the claims often differs.”). It concluded that for
Fourteenth Amendment claims, the relevant question is not
whether the defendant acted in good faith, but instead
whether the force used was “objectively unreasonable.” Id.
at 396–97.

Recognizing that Kingsley called into question our
practice of applying Eighth Amendment standards to other
varieties of Fourteenth Amendment claims brought by
pretrial detainees, we addressed the issue en banc in Castro
v. County of Los Angeles, 833 F.3d 1060 (9th Cir. 2016). In
Castro, a pretrial detainee alleged that prison officials had
failed to protect him from violence at the hands of another
inmate placed in his cell. Id. at 1064. We were mindful that
when such failure-to-protect claims are brought by convicted
prisoners under the Eighth Amendment, they are governed
by a subjective deliberate indifference standard similar to the
one that applies to claims of inadequate medical care. Id.
at 1067–68.

However, in Castro, we concluded that while we had
previously also applied the Eighth Amendment failure-to-
protect standard to similar Fourteenth Amendment claims
brought by pretrial detainees, we could no longer do so after
Kingsley. Id. at 1069–70. We held instead that Fourteenth
Amendment failure-to-protect claims should be analyzed
under an objective framework, under which the critical
20 SANDOVAL V. COUNTY OF SAN DIEGO

question is whether the defendant failed to take reasonable
measures to abate a serious risk of harm to an inmate “even
though a reasonable officer in the circumstances would have
appreciated the high degree of risk involved—making the
consequences of the defendant’s conduct obvious.” Id.
at 1071.

This was the state of the law at the time the district court
ruled on the summary judgment motion here. Citing Castro,
Plaintiff argued in the district court that an objective
standard should apply to her Fourteenth Amendment claim
that the defendants failed to provide Sandoval with adequate
medical care. But the district court concluded that Castro,
which had specifically addressed only failure-to-protect
claims, had not overruled Ninth Circuit precedent applying
the Eighth Amendment subjective deliberate indifference
standard to inadequate medical care claims brought by
pretrial detainees. Accordingly, the district court applied
that subjective standard to Plaintiff’s claims and granted
summary judgment in favor of the defendants.

After the district court’s ruling, however, we issued our
opinion in Gordon, which made clear that Castro and
Kingsley had in fact displaced our prior precedent for claims
brought by pretrial detainees alleging inadequate medical
care. Gordon, 888 F.3d at 1124–25. In Gordon, we adopted
an objective framework for such claims that mirrored the
framework Castro had adopted for failure-to-protect claims.
Id. Under that standard, pretrial detainees alleging that jail
officials failed to provide constitutionally adequate medical
care must show:

(1) The defendant made an intentional
decision with respect to the conditions
under which the plaintiff was confined
 SANDOVAL V. COUNTY OF SAN DIEGO 21

[including a decision with respect to
medical treatment];

(2) Those conditions put the plaintiff at
substantial risk of suffering serious harm;

(3) The defendant did not take reasonable
available measures to abate that risk, even
though a reasonable official in the
circumstances would have appreciated
the high degree of risk involved—making
the consequences of the defendant’s
conduct obvious; and

(4) By not taking such measures, the
defendant caused the plaintiff’s injuries.

Id. at 1125. To satisfy the third element, the plaintiff must
show that the defendant’s actions were “objectively
unreasonable,” which requires a showing of “more than
negligence but less than subjective intent—something akin
to reckless disregard.” Id. (quoting Castro, 833 F.3d
at 1071).

In light of our holding in Gordon, it is clear that the
district court here erred by applying the subjective deliberate
indifference standard to Plaintiff’s Fourteenth Amendment
claim. Because the parties have briefed Gordon’s objective
framework on appeal, we apply it here.

B.

Beginning with Nurse de Guzman, the evidence viewed
in the light most favorable to Plaintiff shows that Deputy
Chavez told de Guzman that Sandoval was sweating, tired,
and disoriented. Deputy Chavez insisted that he told de
22 SANDOVAL V. COUNTY OF SAN DIEGO

Guzman, “There [is] still something going on [with
Sandoval] so you need to look at him more thoroughly.”
Despite receiving this information, de Guzman did nothing
more than administer a duplicative blood sugar test—a test
de Guzman admitted took only about ten seconds. Without
conducting any further evaluation, de Guzman then told
deputies that Sandoval was cleared for booking.

When the deputies left Sandoval in MOC1, de Guzman
asked them if Sandoval could “go into a sobering tank.” A
jury could conclude, based on this statement, that de
Guzman suspected Sandoval was under the influence of
drugs or alcohol. Yet although de Guzman knew that
Sandoval remained in MOC1, which was only 20 feet away
from the nursing station, he failed to check on Sandoval at
any point during the remaining six hours of his shift. Worse
still, when his shift was over, de Guzman did not relay any
information about Sandoval to the nurses who replaced him.
This left the night shift nurses with no way of knowing that
Sandoval was being held in MOC1 for medical reasons.

Applying the Gordon framework, a jury could conclude
that a reasonable nurse who was told that Sandoval was
shaking, tired, and disoriented—and who was specifically
directed by a deputy to evaluate Sandoval “more
thoroughly”—would have understood that Sandoval faced a
“substantial risk of suffering serious harm.” Gordon,
888 F.3d at 1125. Sweating and being so disoriented that
officers observe and comment about it are not everyday
conditions. A jury could further conclude that de Guzman’s
actions toward Sandoval—which were limited to
administering a quick blood test and then ignoring Sandoval
for the remaining six hours of his shift—were “akin to
reckless disregard.” Id. De Guzman is therefore not entitled
to summary judgment on liability.
 SANDOVAL V. COUNTY OF SAN DIEGO 23

C.

We reach the same conclusion for the claims against
Nurses Harris and Llamado.

There can be no debate that a reasonable nurse would
understand that an individual who is unresponsive and
seizing faces a substantial risk of suffering serious harm.
Thus, the question with regard to Nurses Harris and Llamado
is whether a jury could find that their failure to promptly call
paramedics was objectively unreasonable.

On summary judgment, we must accept the extensive
evidence that all reasonable nurses would know that only
paramedics, not EMTs, had the training necessary to allow
them to transport patients in Sandoval’s condition. This is
reflected in the Sheriff’s Department Medical Services
Division Policy and Procedure Manual, which lists “status
epilepticus”—i.e. a severe seizure—as a condition that
“require[s] 911 Paramedic Emergency Response.” And it is
echoed by Deputy Andrade (a trained EMT) and Nurse
Llamado, who testified that they told Nurse Harris during the
incident that paramedics were needed because EMTs could
not transport unresponsive patients. Indeed, Llamado later
admitted that she should have called paramedics herself
when Harris refused to do so. This evidence is more than
sufficient to allow a jury to find that Llamado and Harris’s
failure to summon paramedics was objectively
unreasonable. See Gordon, 888 F.3d at 1125.

Arguing that they are entitled to summary judgment,
Nurses Harris and Llamado point to cases in which we have
held that “a difference of medical opinion regarding . . .
treatment” does not amount to a constitutional violation. See
Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); see also
Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004).
24 SANDOVAL V. COUNTY OF SAN DIEGO

These cases applied the Eighth Amendment subjective
deliberate indifference standard and therefore are of limited
relevance to the Fourteenth Amendment claims here. But
even under the Eighth Amendment standard, a defendant can
be held liable for actions that were “medically unacceptable
under the circumstances.” Toguchi, 391 F.3d at 1058
(internal quotation marks and citation omitted). Here, there
is ample evidence from which a jury could conclude that
promptly calling paramedics was the only medically
acceptable option. 8

Finally, to the extent Nurses Harris and Llamado argue
that Sandoval would not have survived even if they had
promptly summoned paramedics, Plaintiff’s expert, Dr.
Michael Falgiani, opined that it was more likely than not that
Sandoval’s life could have been saved if he “had been taken
to an emergency department at any time during the time he
was in Central Jail up to the time that he lost pulses and went
into cardiac arrest.” And according to Deputy Andrade,
Sandoval still had a pulse when the paramedics first arrived.
Crediting Dr. Falgiani’s opinion, and taking Deputy
Andrade’s account as true, a jury could find that Sandoval
would not have died but for the delay in calling paramedics.

In sum, viewing the evidence in the light most favorable
to Plaintiff, there are triable issues of fact on the claims
against each of the individual nurses. Accordingly, the
nurses are not entitled to summary judgment on liability.

8
Nurse Harris’s arguments to the contrary rest in large part on her
assertions that Sandoval “did not have any of the symptoms commonly
associated with seizures” and that she “could not have anticipated” that
EMTs would not transport Sandoval. Both of these propositions are
contradicted by evidence in the record. They therefore serve only to
support our view that summary judgment was inappropriate.
 SANDOVAL V. COUNTY OF SAN DIEGO 25

V.

We now turn to whether the nurses are entitled to
qualified immunity.

“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). In determining whether a state
official is entitled to qualified immunity in the context of
summary judgment, we consider (1) whether the evidence
viewed in the light most favorable to the plaintiff is sufficient
to show a violation of a constitutional right and (2) whether
that right was “clearly established at the time of the
violation.” Horton by Horton v. City of Santa Maria,
915 F.3d 592, 599 (9th Cir. 2019) (citing Pearson, 555 U.S.
at 232).

A.

We begin with whether the shift in the legal framework
governing Plaintiff’s claims—from subjective deliberate
indifference to objective unreasonableness—has any bearing
on the qualified immunity analysis. The nurses argue, and
the dissent agrees, that in determining whether the nurses are
entitled to qualified immunity, we must apply all elements
of an inadequate medical care claim exactly as they stood at
the time of the incident at issue here, including the subjective
deliberate indifference requirement. But we have already
rejected this approach in Horton by Horton v. City of Santa
Maria. 915 F.3d at 599–603. Under Horton, when we
assess qualified immunity for a claim of inadequate medical
care of a pre-trial detainee arising out of an incident that took
place prior to Gordon, we apply the current objective
26 SANDOVAL V. COUNTY OF SAN DIEGO

deliberate indifference standard to analyze whether there
was a constitutional violation, id. at 602, and “concentrate
on the objective aspects of the [pre-Gordon] constitutional
standard” to evaluate whether the law was clearly
established, id. at 600.

To fully understand Horton, we must first address Estate
of Ford v. Ramirez-Palmer, 301 F.3d 1043 (9th Cir. 2002).
Jeffrey Ford was killed by his cellmate, James Diesso, who
had a history of violent behavior against other prisoners. Id.
at 1045–47. Ford’s family and estate brought an Eighth
Amendment deliberate indifference claim against the
correctional officers who allowed Diesso to be housed with
Ford. Id. at 1047–48. The district court concluded that
genuine issues of material fact existed as to whether the
officers were aware of Diesso’s history of violence. Id. at
1048. Because our circuit had “held in Hamilton v. Endell,
981 F.2d 1062 (9th Cir.1992), that a finding of deliberate
indifference (or of a triable issue as to it) necessarily
precludes a finding of qualified immunity,” id. at 1045, the
district court denied qualified immunity, id. at 1048. On
appeal, the Ford panel reversed, concluding “that Hamilton,
which collapse[d] the deliberate indifference part of the
constitutional inquiry into the qualified immunity inquiry,
ha[d] been undermined by Saucier [v. Katz, 533 U.S. 194
(2001), overruled on other grounds by Pearson, 555 U.S.
223],” id. at 1050, because the “key point” in Saucier “is that
the qualified immunity inquiry is separate from the
constitutional inquiry,” id. at 1049.

We further explained that “the qualified immunity
inquiry ‘has a further dimension.’” Id. (quoting Saucier,
533 U.S. at 205). That dimension is the clearly established
law inquiry, which allows “‘all but the plainly incompetent
or those who knowingly violate the law’ [to] have immunity
 SANDOVAL V. COUNTY OF SAN DIEGO 27

from suit.” Id. (quoting Saucier, 533 U.S. at 202). However,
we noted that “[w]hile Eighth Amendment claims depend in
part on a subjective test that does not fit easily with the
qualified immunity inquiry, there is an objective component
as well. To violate the Eighth Amendment, the deprivation
alleged must objectively be sufficiently serious.” Id. If the
law at the time of an alleged violation did not clearly
establish that the specific situation faced by an officer was
sufficiently serious, “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. Thus,
the “dispositive inquiry” in the clearly-established analysis
is “whether it would be clear to a reasonable officer that his
conduct was unlawful in the situation he confronted,” based
on the law at the time. Id. (quoting Saucier, 533 U.S. at 202)
(emphasis added).

Turning to the Estate of Ford facts, we concluded that “if
any of the officers knew that Diesso was acting out
dangerously with cellmates or that he was a threat to Ford
but housed Ford with him anyway, this would violate the
Eighth Amendment.” Id. Nonetheless, the officers were
entitled to qualified immunity, because no law at the time of
the incident “fleshed out ‘at what point a risk of inmate
assault becomes sufficiently substantial for Eighth
Amendment purposes.’” Id. at 1051 (quoting Farmer,
511 U.S. at 834 n.3). Therefore, “we c[ould not] say that a
reasonable correctional officer would have clearly
understood that the risk of serious harm was so high that he
should not have authorized the double-celling.” Id.

Horton built upon Estate of Ford’s rationale. There, an
officer left Horton, a pre-trial detainee, alone in his jail cell
28 SANDOVAL V. COUNTY OF SAN DIEGO

for a prolonged period of time, despite having been warned
by Horton’s mother in a phone call that he was a suicide risk.
Horton, 915 F.3d at 597–98. After turning to some
paperwork, the officer went to check on Horton and found
him hanging from the cell door, unmoving. Although
Horton survived, the delay in treatment led to severe and
permanent brain damage. The law at the time of the incident
was the pre-Gordon deliberate indifference standard. Id.
at 599. Relying on Estate of Ford, we observed that
“deliberate indifference claims [under the pre-Gordon
standard] ‘depend in part on a subjective test that does not
fit easily with the qualified immunity inquiry,’ which is an
objective inquiry.” Id. (quoting Estate of Ford, 301 F.3d
at 1050); see also Harlow v. Fitzgerald, 457 U.S. 800, 817–
18 (1982) (explaining that qualified immunity examines “the
objective reasonableness of an official’s conduct, as
measured by reference to clearly established law”).
Therefore, “even where the clearly established legal standard
requires [subjective] deliberate indifference, the qualified
immunity inquiry should concentrate on the objective
aspects of the constitutional standard.” Horton, 915 F.3d at
600.

Thus, the officer would enjoy qualified immunity unless
Horton demonstrated that, “given the available case law at
the time of his attempted suicide, a reasonable officer,
knowing what [the officer] knew, would have understood
that failing to check on Horton immediately after the phone
call with [Horton’s mother] presented such a substantial risk
of harm to Horton that the failure to act was
unconstitutional.” Id. As in Estate of Ford, we concluded
that the officer was entitled to qualified immunity, because
“the case law at the time of Horton’s attempted suicide was
simply too sparse, and involved circumstances too distinct
from those [of Horton], to establish that a reasonable officer
 SANDOVAL V. COUNTY OF SAN DIEGO 29

would perceive a substantial risk that Horton would
imminently attempt suicide.” Id. at 601–02.

After determining that the officer was entitled to
qualified immunity because the law was not clearly
established that the officer’s failure to immediately act upon
the suicide warning violated the constitutional right to
adequate medical care, it was unnecessary for us to reach the
question whether a constitutional violation had actually
occurred, and we declined to do so. Id. at 602. However,
we explicitly recognized that were we required to address
whether the officer’s conduct violated the constitution, the
Gordon objective standard would “guide our analysis of
whether a constitutional violation occurred.” Id. This was
because in Gordon we had “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.” Id.

The rule of Horton, aside from the fact that it is
controlling precedent, makes sense. The purpose of
determining whether there has been a constitutional
violation has always been to “further the development of
constitutional precedent.” Pearson, 555 U.S. 237; see also
Saucier, 533 U.S. at 201. It would run counter to that goal
to apply the pre-Gordon standard now, because “no purpose
would be served for future cases from delineating the
application of that standard to the constitutional merits of
this case.” Horton, 915 F.3d at 602. 9

9
The dissent misreads Horton to conclude that the subjective
element of the pre-Gordon standard governs the analysis of whether the
nurses violated Sandoval’s clearly established constitutional right to
adequate medical care. Dissent at 58–59. In Horton, we simply
30 SANDOVAL V. COUNTY OF SAN DIEGO

Horton’s recognition that the objective deliberate
indifference standard applies even when the incident
occurred pre-Gordon comports with the purpose underlying
the clearly established law requirement. As the Supreme
Court has explained, this requirement is designed to “give[]
government officials breathing room to make reasonable but
mistaken judgments about open legal questions.” Ashcroft
v. al-Kidd, 563 U.S. 731, 743 (2011). “[T]he focus is on
whether the [defendant] had fair notice that her conduct was
unlawful . . . .” Kisela v. Hughes, 138 S. Ct. 1148, 1152
(2018) (per curiam) (quoting Brosseau v. Haugen, 543 U.S.
194, 198 (2004) (per curiam)). Thus, as the Supreme Court
has often repeated, the defense of qualified immunity
protects “all but the plainly incompetent or those who
knowingly violate the law.” Ziglar v. Abbasi, 137 S. Ct.
1843, 1867 (2017) (quoting Malley v. Briggs, 475 U.S. 335,
341 (1986)).

Because the premise of qualified immunity is that state
officials should not be held liable for money damages absent
fair warning that their actions were unconstitutional, the
clearly established law standard “requires that the legal
principle clearly prohibit the [defendant’s] conduct in the
particular circumstances before him.” District of Columbia
v. Wesby, 138 S. Ct. 577, 590 (2018). This inquiry is an
objective one that compares the factual circumstances faced
by the defendant to the factual circumstances of prior cases
to determine whether the decisions in the earlier cases would

observed that there was no purpose in analyzing the issue of whether,
applying the Gordon objective deliberate indifference standard, there
was a constitutional violation, as the Horton court had already
determined that the law as to the need for immediate care of a potential
suicide victim was not clearly established, and thus the officers were
entitled to qualified immunity in any event. 915 F.3d at 602.
 SANDOVAL V. COUNTY OF SAN DIEGO 31

have made clear to the defendant that his conduct violated
the law. See e.g., Abbasi, 137 S. Ct. at 1866 (“Whether
qualified immunity can be invoked turns on the ‘objective
legal reasonableness’ of the official’s acts.” (citation
omitted)); Harlow, 457 U.S. at 819 (qualified immunity
“turn[s] primarily on objective factors”). The focus is on the
standards governing the defendant’s conduct, not legal
arcana. See Saucier, 533 U.S. at 202–03 (if “various courts
have agreed that certain conduct is a constitutional violation
under facts not distinguishable in a fair way from the facts
presented in the case at hand, the officer would not be
entitled to qualified immunity based simply on the argument
that courts had not agreed on one verbal formulation of the
controlling standard”).

Consistent with this purpose, the qualified immunity
analysis remains objective even when the constitutional
claim at issue involves subjective elements. Crawford-El v.
Britton, 523 U.S. 574, 588–89 (1998) (“[A]lthough evidence
of improper motive is irrelevant on the issue of qualified
immunity, it may be an essential component of the plaintiff’s
affirmative case.”). Thus, in the Eighth Amendment
deliberate indifference context, we have recognized that “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. In
these circumstances, he would be entitled to qualified
immunity.” Estate of Ford, 301 F.3d at 1050. We are not
aware of a single case in which we have examined the
defendant’s mental state in assessing the clearly established
law prong of qualified immunity.

Several other circuits have concluded, as we did in
Horton, that because the clearly established law prong
32 SANDOVAL V. COUNTY OF SAN DIEGO

focuses objectively on whether it would be clear that the
defendant’s conduct violated the Constitution, lack of notice
regarding the mental state required to establish liability has
no bearing on the analysis.

Take, for example, the Seventh Circuit’s decision on
remand from the Supreme Court in Kingsley itself. See
Kingsley v. Hendrickson, 801 F.3d 828 (7th Cir. 2015) (per
curiam) (“Kingsley II”). At the trial that took place before
the case reached the Supreme Court, the district court’s
instructions on the excessive force claims “suggested the
jury should weigh [the defendants’] subjective reasons for
using force and subjective views about the excessiveness of
the force.” Kingsley, 576 U.S. at 403–04. Under that
standard, the jury found in the defendants’ favor. Id. at 394.
The Supreme Court later concluded, however, that the
standard should have been objective unreasonableness. Id.
at 392. On remand, the Kingsley defendants advanced a
view of qualified immunity similar to the one the nurses
offer here. They argued that because the Supreme Court’s
decision had “altered the substantive law of liability,” their
liability should not be assessed under the new objective
unreasonableness standard, which had not been clearly
established at the time of the incident in the case. Kingsley
II, 801 F.3d at 831.

In addressing this argument, the Seventh Circuit first
concluded that prior cases had clearly established that the
force used by the officers was excessive—i.e., that their
conduct was unlawful. Id. at 832. It then turned to the
defendants’ argument that they were nevertheless entitled to
qualified immunity because the standard had changed from
subjective awareness to objective unreasonableness during
the course of the litigation. Id. 832–33. Rejecting this
position, the Seventh Circuit explained that it “would
 SANDOVAL V. COUNTY OF SAN DIEGO 33

untether the qualified immunity defense from its moorings
of protecting those acting in reliance on a standard that is
later determined to be infirm.” Id. at 832. Reliance interests
were not implicated there, it said, because before and after
the Supreme Court’s decision, “the standards for the amount
of force that c[ould] be permissibly employed remain[ed] the
same.” Id. The Seventh Circuit concluded that to decide
otherwise would require it “to accept the dubious proposition
that, at the time the officers acted, they were on notice only
that they could not have a reckless or malicious intent and
that, as long as they acted without such an intent, they could
apply any degree of force they chose.” Id. at 833. It declined
to do so. Id.

Like the Seventh Circuit, the Sixth Circuit has rejected
the argument that defendants facing claims of excessive
force based on pre-Kingsley conduct are entitled to qualified
immunity simply because it would not have been clear at the
time of their unconstitutional conduct that any claims against
them would be governed by an objective standard. Hopper
v. Plummer, 887 F.3d 744, 755–56 (6th Cir. 2018). As the
court there explained, “a defendant is not entitled to qualified
immunity simply because the courts have not agreed upon
the precise formulation of the applicable standard. Rather,
the relevant question under the clearly established prong is
whether defendants had notice that their conduct was
unlawful in the situation they confronted.” Id. (emphasis
added, internal citations omitted, and cleaned up). The First
and Fifth Circuits have reached similar conclusions.
Miranda-Rivera v. Toledo-Davila, 813 F.3d 64, 72–73 (1st
Cir. 2016) (Ninth Circuit Judge Hawkins, sitting by
designation) (holding that despite uncertainty about the
governing legal standard, the defendants were not entitled to
qualified immunity because “a reasonable officer would
have known that using force in the way that the officers here
34 SANDOVAL V. COUNTY OF SAN DIEGO

appear to have done in the particular factual circumstances
that they encountered violated [the plaintiff’s] constitutional
rights”); Dyer v. Houston, 964 F.3d 374, 384 (5th Cir. 2020)
(concluding that confusion in the case law about whether
subjective intent was required to prove an inadequate
medical care claim did not mean the defendants were per se
entitled to qualified immunity, and that “the district court
was still required to analyze whether the [defendants’]
alleged conduct contravened clearly established law”).

Rather than sticking to our settled approach, the dissent
would, for the first time, drag a subjective element into the
question of whether a defendant violated clearly established
law. For example, the dissent concludes Nurse de Guzman
is entitled to qualified immunity—regardless of whether it
would have been clear to every reasonable nurse that his
conduct was unlawful—because there is, supposedly,
insufficient evidence that de Guzman subjectively
understood that Sandoval faced a serious medical need. 10
Dissent at 65–68.

This radical reimagination of qualified immunity would
produce results directly contrary to the purposes served by
the doctrine—giving “government officials breathing room
to make reasonable but mistaken judgments about open legal
questions,” al-Kidd, 563 U.S. at 743, while at the same time
ensuring that a plaintiff can recover damages from a
defendant who acts so unreasonably in light of established
case law that he is appropriately described as “plainly
incompetent,” Abbasi, 137 S. Ct. at 1867. Consider how the
dissent’s approach would play out in practice. Here, there is

10
As discussed below, infra note 16, this conclusion is incorrect
even on its own terms, viewing the facts in the light most favorable to
plaintiff, as we must on summary judgment.
 SANDOVAL V. COUNTY OF SAN DIEGO 35

no dispute that the objective unreasonableness standard from
Gordon governs the merits of Plaintiff’s claims. Thus, had
the nurses not raised a qualified immunity defense,
presumably even the dissent would agree that objective
unreasonableness alone would be sufficient to establish their
liability.11 Yet the dissent would use qualified immunity, a
defense designed “to shield officials . . . when they perform
their duties reasonably,” Pearson, 555 U.S. at 231 (emphasis
added), to require Plaintiff to satisfy a standard under which
the nurses would be protected from liability—no matter how
unreasonable their conduct—as long as they did not
subjectively appreciate that their actions put Sandoval at a
substantial risk of suffering serious harm. We cannot accept
this extraordinary proposition, which would transform a
defense that protects “all but the plainly incompetent,” into
one that provides immunity to defendants precisely because
they were so incompetent that they did not understand the
patent unreasonableness of their conduct as already
established by law. 12 See Abbasi, 137 S. Ct. at 1867

11
Or, perhaps not. It is not clear the dissent appreciates that the
affirmative defense of qualified immunity is distinct from the merits of
the plaintiff’s constitutional claim. See Estate of Ford, 301 F.3d at 1049.
While the plaintiff’s claim may have subjective elements, as inadequate
medical care claims did before Gordon, the clearly established law
inquiry is always an objective one that looks to whether it would have
been clear to a reasonable person in the defendant’s position that his
conduct was unlawful. Horton, 915 F.3d at 600. Here, the subjective
aspect of Plaintiff’s claim for relief changed during the course of this
litigation. The objective nature of the qualified immunity defense did
not.

12
As support for its position, the dissent cites only our unpublished
memorandum disposition in Acosta v. Hill, 244 F. App’x 792 (9th Cir.
2007). Dissent at 54. Putting aside that Acosta is not binding precedent,
it also has nothing to do with the issues in this case. Acosta involved a
change in the law governing what constituted “deadly force.” Id. at 794;
36 SANDOVAL V. COUNTY OF SAN DIEGO

(explaining that a defendant can be either plainly
incompetent or entitled to qualified immunity, but not, as the
dissent would have it, both at the same time).

The dissent’s position might be justified if we could
somehow conclude that the nurses relied on the subjective
deliberate indifference standard in determining how to treat
Sandoval. But to speak the thought is to recognize that it
makes little sense. As the clearly established law prong of
qualified immunity is typically applied, we impute to the
defendant knowledge of the relevant case law governing his
conduct. Thus, if there is binding precedent holding that a
police officer may not use deadly force against an unarmed
fleeing suspect, 13 future officers are expected to tailor their
conduct accordingly. Those who fail to do so are not entitled

see Smith v. City of Hemet, 394 F.3d 689, 705–07 (9th Cir. 2005) (en
banc). Given constitutional restrictions on when a police officer may use
deadly force, the change in the definition of deadly force necessarily
affected when officers could justifiably use certain types of force. In
other words, as the decision itself makes clear, Acosta involved a change
in the law governing the defendants’ conduct. 244 F. App’x at 794
(“Under qualified immunity, the officers didn’t have ‘fair warning’ that
their actions may have been unconstitutional.”). Acosta therefore stands
for nothing more than the well-settled rule that clearly established law
must provide the defendant with notice that his conduct was unlawful in
the situation he confronted—exactly the standard we apply in this case.
It provides no support for the dissent’s far more reaching assertion: even
if prior case law made clear that the nurses’ response to Sandoval’s
condition was constitutionally inadequate—even if there were a
precedential case finding a constitutional violation on exactly the same
facts—the nurses would still be entitled to qualified immunity as long as
they did not subjectively understand that their actions were unlawful.

13
See Tennessee v. Garner, 471 U.S. 1 (1985).
 SANDOVAL V. COUNTY OF SAN DIEGO 37

to qualified immunity.14 They have received their “fair
notice” and squandered it. Hughes, 138 S. Ct. at 1152.

But how would an official who believes any claims
against him would be tried under a subjective deliberate
indifference standard act any differently than one who
knows that an objective unreasonableness standard applies?
It is not as if an individual can consciously control the extent
to which he is subjectively aware of the wrongfulness of his
conduct. It therefore seems likely that officials responsible
for providing medical care to inmates will act in exactly the
same manner after Gordon as they did before. They will
provide the treatment they think necessary under the
circumstances, mindful of what our cases dictate is
appropriate conduct in different factual scenarios, and, in the
event they subjectively believe the treatment they are
providing is inadequate, they will, we would hope, adjust
their conduct accordingly.

It is true that after Gordon, state officials may now be
held liable for providing inadequate medical care even when
they were not subjectively aware of the unreasonableness of
their conduct. But as the Seventh Circuit has explained, this
change could affect an official’s on-the-ground actions only
if we were to assume that before Gordon, officials acted in
reliance on the belief that as long as they were not
subjectively aware that their conduct created a substantial
risk of serious harm to an inmate, they could provide any
level of medical care they so chose, no matter how obviously
deficient. Kingsley II, 801 F.3d at 832–33. Like the Sixth

14
E.g., A.K.H. ex rel. Landeros v. City of Tustin, 837 F.3d 1005,
1013 (9th Cir. 2016).
38 SANDOVAL V. COUNTY OF SAN DIEGO

and Seventh Circuits, we refuse to accept this “dubious
proposition.” Id.; Hopper, 887 F.3d at 755. 15

In sum, as we previously concluded in Horton, when the
governing law has changed since the time of the incident, we
apply the current law to determine if a constitutional
violation took place under the first prong of qualified
immunity analysis, and the second prong remains what it has
always been: an objective examination of whether
established case law would make clear to every reasonable
official that the defendant’s conduct was unlawful in the
situation he confronted. Horton, 915 F.3d at 600–602. We
will approach our analysis accordingly.

We have already determined that there is a triable issue
of fact whether the nurses committed constitutional
violations under the Gordon standard, which governs the
violation prong of our qualified immunity analysis. See id.
at 602. We turn now to whether the right was clearly
established at the time.

15
We recognize that three circuits appear to have concluded after
Kingsley that they were required to apply a subjective framework for
purposes of qualified immunity, even though it had since been replaced
by an objective standard. Quintana v. Santa Fe Cnty. Bd. of
Commissioners, 973 F.3d 1022 (10th Cir. 2020); Kedra v. Schroeter,
876 F.3d 424, 440 (3d Cir. 2017); Hall v. Ramsey County, 801 F.3d 912,
917 n.3 (8th Cir. 2015). But in their cursory discussions of the issue,
none of these courts appear to have contemplated that the clearly
established law analysis may apply differently when a post-incident
change in law concerns the mental state required to prove a claim rather
than the lawfulness of the defendants’ conduct. Nor do they explain why
applying a since-abrogated subjective standard would be consistent with
the purpose of qualified immunity: providing defendants with “fair
notice that [their] conduct was unlawful.” Hughes, 138 S. Ct. at 1152.
We are therefore not persuaded by their analyses.
 SANDOVAL V. COUNTY OF SAN DIEGO 39

B.

Applying Horton’s approach here, to defeat qualified
immunity for the Officers, Plaintiff must show that, given
the available case law at the time, a reasonable nurse,
knowing what Llamado, Harris, and de Guzman knew,
would have understood that failing to call paramedics
(Llamdo and Harris), or failing to check on Sandoval for
hours and failing to pass on information about his condition
(de Guzman), “presented such a substantial risk of harm to
[Sandoval] that the failure to act was unconstitutional.”
Horton, 915 F.3d at 600. The nurses’ actual subjective
appreciation of the risk is not an element of the established-
law inquiry. We conclude that Sandoval has demonstrated
that the available law was clearly established as to the
unreasonableness of the nurses’ conduct.

Beginning with Nurses Harris and Llamado, it has long
been established that “failing to provide . . . life-saving
measures to an inmate in obvious need can provide the basis
for liability under § 1983 for deliberate indifference.”
Lemire v. Cal. Dep’t of Corr. & Rehab., 726 F.3d 1062, 1082
(9th Cir. 2013). In Lemire, we held that officers who
discovered an inmate unconscious after a suicide attempt
could be liable when they failed to immediately begin
performing CPR or any other “life saving action[s]” on the
inmate and instead waited several minutes for medical
professionals to arrive. Id. at 1083.

The case for deliberate indifference is at least as strong
here. Viewing the evidence in the light most favorable to
Plaintiff, Nurses Llamado and Harris, trained medical
professionals, knew that Sandoval was unresponsive and
seizing but failed to promptly summon paramedics. Calling
paramedics was “[s]tandard nursing protocol” for prolonged
seizures, and every reasonable nurse would have understood
40 SANDOVAL V. COUNTY OF SAN DIEGO

that paramedics were the only individuals capable of
transporting Sandoval to the hospital. Because every
reasonable nurse, knowing what Llamado and Harris knew,
would have understood that not calling paramedics
amounted to an unconstitutional failure to provide “life-
saving measures to an inmate in obvious need,” id. at 1082,
Harris and Llamado are not entitled to qualified immunity,
see Horton, 915 F.3d at 600.

We reach the same conclusion with regard to Nurse de
Guzman. As we have previously explained, a reasonable
nurse in de Guzman’s position—i.e., a nurse who was told
that Sandoval was sweating, tired, and disoriented, and that
“there was still something going on” that needed to be
“look[ed] at . . . more thoroughly”—would understand that
Sandoval faced a substantial risk of serious harm. The
question thus becomes whether every reasonable nurse
would understand, in light of established case law, that de
Guzman violated Sandoval’s constitutional right to adequate
medical care when he responded by merely performing a 10-
second blood sugar test—a test performed earlier to no
avail—and then walking away, leaving Sandoval unattended
for six hours despite the fact that he was only 20 feet from
de Guzman’s nursing station. In light of our precedent, all
reasonable nurses would understand that de Guzman’s
minimal—almost non-existent—course of treatment
violated the Constitution.

Our cases make clear that prison officials violate the
Constitution when they “deny, delay or intentionally
interfere” with needed medical treatment. Jett v. Penner,
439 F.3d 1091, 1096 (9th Cir. 2006) (citation omitted). The
same is true when prison officials choose a course of
treatment that is “medically unacceptable under the
circumstances.” Snow v. McDaniel, 681 F.3d 978, 988 (9th
 SANDOVAL V. COUNTY OF SAN DIEGO 41

Cir. 2012) (quoting Jackson v. McIntosh, 90 F.3d 330, 332
(9th Cir. 1996)), overruled on other grounds by Peralta,
744 F.3d 1076.

We have applied this standard on several occasions. In
Clement v. Gomez, we held that correctional officers could
be liable for failing to provide constitutionally adequate
medical care when they knew that inmates had been exposed
to pepper spray but waited four hours before allowing them
to leave their cells to shower. 298 F.3d 898, 902, 904–05
(9th Cir. 2002). Similarly, in Jett v. Penner, we held that a
doctor could be held liable for a constitutional violation
when he knew that an inmate’s thumb was fractured but
failed to ensure that the fracture was set and cast. 439 F.3d
at 1097–98; see also Hunt v. Dental Dep’t, 865 F.2d 198,
200 (9th Cir. 1989) (plaintiff could establish a constitutional
violation when prison officials were aware that he was
suffering from bleeding gums and broken teeth as a result of
broken dentures but “failed to take any action to relieve his
pain or to prescribe a soft food diet until new dentures could
be fitted”). The rule reflected in these decisions is clear: a
prison official who is aware that an inmate is suffering from
a serious acute medical condition violates the Constitution
when he stands idly by rather than responding with
reasonable diligence to treat the condition.

To be sure, we have never before addressed the specific
factual circumstances here, where a nurse is told that a
patient is sweating, disoriented, and in need of a more
thorough look but does nothing more than perform a quick
10-second blood test. But de Guzman is not entitled to
qualified immunity simply because “the very action in
question has [not] previously been held unlawful.” Hope v.
Pelzer, 536 U.S. 730, 739 (2002) (quoting Anderson v.
Creighton, 483 U.S. 635, 640 (1987)). State “‘[o]fficials can
42 SANDOVAL V. COUNTY OF SAN DIEGO

still be on notice that their conduct violates established law
even in novel factual circumstances’—i.e., even without a
prior case that had ‘fundamentally similar’ or ‘materially
similar’ facts.” Wilk, 956 F.3d at 1148 (quoting Hope,
536 U.S. at 741); cf. Castro, 833 F.3d at 1067 (“The
Supreme Court need not catalogue every way in which one
inmate can harm another for us to conclude that a reasonable
official would understand that his actions violated Castro’s
right.”).

If it is a constitutional violation to delay treatment for
four hours for inmates exposed to pepper spray, Clement,
298 F.3d at 905, or to fail to promptly set a fractured thumb,
Jett, 439 F.3d at 1097–98—neither of which are potentially
life-threatening conditions—the same must be true for
failing to provide any meaningful treatment to an inmate
who was sweating and appeared so tired and disoriented that
a deputy urged that he be re-evaluated. Accordingly, every
reasonable nurse in Nurse de Guzman’s position would have
understood that his treatment of Sandoval, or lack thereof,
was constitutionally inadequate. 16

16
Even under the dissent’s subjective standard, Nurse de Guzman
would not be entitled to qualified immunity because a jury could
conclude from his suggestion that Sandoval be moved to a sobering tank,
where individuals under the influence of drugs or alcohol are placed for
observation by medical staff, that de Guzman himself subjectively
understood that Sandoval had a serious condition requiring medical
treatment. The dissent reaches a contrary conclusion only by adopting a
view of the evidence that not even Nurse de Guzman has advanced. It
interprets de Guzman’s recommendation that Sandoval be moved to a
sobering tank to negate any inference that de Guzman understood the
seriousness of Sandoval’s condition, ostensibly because de Guzman
knew that inmates in a sobering cell would be checked only every four
hours. Dissent at 67–68. Perhaps a jury could come to this conclusion,
if de Guzman were to actually argue it. But it is not the only reasonable
 SANDOVAL V. COUNTY OF SAN DIEGO 43

We emphasize that this is not a case where a nurse
mistakenly misdiagnosed a patient after reasonably
attempting to ascertain the cause of unexplained symptoms.
Instead, viewing the evidence in the light most favorable to
Plaintiff, Nurse de Guzman made essentially no effort to
determine why Sandoval was suffering the symptoms
reported by Deputy Chavez, nor did he attempt to treat those
symptoms. He then abandoned Sandoval for the remaining
six hours of his shift and failed to pass along any information
to the nurses who relieved him. On these facts, de Guzman
is not entitled to qualified immunity. Of course, it remains
to be determined at trial whether the nurses violated
Sandoval’s clearly established rights. Thus, summary
judgment on qualified immunity should not have been
awarded to defendant nurses.

VI.

Having determined that the individual nurse defendants
are not entitled to summary judgment, we now turn to the
claims against the County. Under Monell v. Department of
Social Services, the County can be liable under § 1983 if its
“policy or custom” caused Sandoval’s injuries through
deliberate indifference to his constitutional right to adequate

inference that could be drawn from de Guzman’s sobering tank
comment. For example, a jury could find that de Guzman attempted to
send Sandoval to a sobering cell, where another nurse would be
responsible for his care, precisely because he understood that Sandoval
required treatment and did not want to deal with the hassle of providing
it. Because de Guzman’s statement is susceptible of interpretations
under which he would not be entitled to qualified immunity, it cannot be
used to justify a grant of summary judgment. Tuumalemalo, 946 F.3d
at 478.
44 SANDOVAL V. COUNTY OF SAN DIEGO

medical care. 436 U.S. 658, 694 (1978); see also Castro,
833 F.3d at 1073.

The practice or custom at issue here is the County’s use
of MOC1 as a “mixed use” cell—sometimes used to hold
inmates requiring medical care and other times used as a
general holding cell—without adequate safeguards in place
to ensure that jail staff were made aware when an individual
was placed in MOC1 for medical, rather than correctional,
reasons. According to Nurse Llamado, unlike with other
medical cells at the jail (so-called sobering or safety cells),
there was “no standing obligation . . . for a nurse to routinely
monitor somebody in [MOC1].” Instead, a nurse would
attend to MOC1 only when told by a deputy or another nurse
that an inmate there required treatment.

Crucially, this system depended entirely on verbal
communication. Unless directly told otherwise, nurses
assumed that individuals in MOC1 were being held there for
non-medical purposes. And even when deputies verbally
passed off responsibility for the cell to one shift of nurses,
the relief shift had no way of knowing whether to monitor
MOC1 unless specifically told to do so by the nurses they
were replacing. Unlike with the jail’s sobering and safety
cells, there were no written nursing logs for MOC1. And
though the nursing unit had a whiteboard listing the names
of inmates in the sobering and safety cells, the board had no
space to list inmates being held in MOC1. These practices
created a substantial risk of turning MOC1 into a veritable
no man’s land, where deputies believed the cell was being
monitored by nurses, and nurses believed it was being
monitored by deputies.

Nurses at the jail explained that the informal verbal pass-
off system for MOC1 created confusion. The facts of this
case bear that out. The deputies believed that Nurse de
 SANDOVAL V. COUNTY OF SAN DIEGO 45

Guzman knew that Sandoval was in MOC1 because he
required monitoring by the medical staff. In contrast, Nurse
de Guzman was adamant that because he had ostensibly
cleared Sandoval for booking, Sandoval must have been left
in MOC1 for correctional purposes. As a result, de Guzman
did not inform the night shift nurses that Sandoval required
care. This evidence is sufficient to allow a jury to find that
the County had an established practice of using MOC1 as a
mixed-use cell without the safeguards necessary to ensure
that the jail’s medical staff knew when an inmate held there
required medical treatment or observation.

The next question is whether there is a “direct causal
link” between the County’s practice with regard to MOC1
and Sandoval’s injuries. Castro, 833 F.3d at 1075 (quoting
City of Canton v. Harris, 489 U.S. 378, 385 (1989)). As
Nurses de Guzman and Llamado acknowledged, inmates in
other medical cells were checked at least once every four
hours. A jury could infer that Sandoval would have received
similar monitoring had the County put in place measures to
ensure the nursing staff knew when an inmate was placed in
MOC1 for medical reasons. Moreover, had the nursing staff
maintained written logs for patients held in MOC1, as they
did for other medical cells, the incoming night shift nurses
might have learned of Sandoval’s condition from those logs
and monitored him more closely. A jury could find that had
Sandoval been monitored by the nursing staff—instead of
being abandoned for nearly eight hours—his deteriorating
medical condition would have been discovered earlier. And
Plaintiff’s expert, Dr. Falgiani, opined that Sandoval likely
would have survived the overdose if he had been taken to the
hospital at any time before he went into cardiac arrest. This
is sufficient to create a genuine dispute of material fact as to
whether the County’s practices caused Sandoval’s death.
46 SANDOVAL V. COUNTY OF SAN DIEGO

Finally, we address whether the evidence would support
a finding of objective deliberate indifference on the part of
the County. Id. at 1076. This requires a showing that the
facts available to the County put it on “actual or constructive
notice” that its practices with regard to MOC1 were
“substantially certain to result in the violation of the
constitutional rights of [its] citizens.” 17 Id. (emphasis
removed) (quoting Harris, 489 U.S. at 396 (O’Connor, J.,
concurring)).

In granting summary judgment to the County, the district
court concluded that Plaintiff could not establish deliberate
indifference because there was no evidence that the failure
to implement adequate communication safeguards had
caused “prior injury or death to MOC1 inhabitants.” The
County does not defend this rationale on appeal, and for
good reason. To establish her claim, Plaintiff must show that
the County had actual or constructive knowledge that its
practices were substantially certain to cause a constitutional

17
This deliberate indifference standard does not apply when a
Monell defendant’s policies, customs, or practices directly require
unconstitutional conduct—for example, “a city’s policy of
discriminating against pregnant women in violation of the Fourteenth
Amendment.” Gibson, 290 F.3d at 1185–86, overruled on other grounds
by Castro, 833 F.3d 1060. Plaintiff suggests that the County had a direct
policy requiring the medical staff to “ignore the inmates in [MOC1]
unless told otherwise.” But there is no evidence that the County wanted
nurses to ignore all inmates in MOC1, even those suffering from medical
problems. To the contrary, the evidence shows that nurses understood
they were supposed to monitor MOC1 when it was being used to hold
inmates requiring medical care. That Sandoval was ignored for almost
eight hours was not the purpose of the County’s policies but rather a
tragic consequence of its failure to implement measures necessary to
ensure the nursing staff knew when an individual was being held in
MOC1 for medical reasons. Deliberate indifference is therefore the
appropriate standard.
 SANDOVAL V. COUNTY OF SAN DIEGO 47

violation. Id. This standard does not require proof of a prior
injury. A constitutional injury can be substantially certain to
follow from a practice even if an injury has yet to occur.
Otherwise, every Monell defendant would get “one free . . .
pass” for policies or practices that are substantially certain to
violate an individual’s constitutional rights. Woodward v.
Corr. Med. Servs. of Ill., Inc., 368 F.3d 917, 929 (7th Cir.
2004) (cleaned up).

Under the proper standard, it is a close question whether
Plaintiff has mustered sufficient evidence to create a triable
issue of fact on whether the County was deliberately
indifferent. There is certainly enough evidence to support a
finding of negligence. But to establish deliberate
indifference, Plaintiff must prove that the County had actual
or constructive knowledge that the failure to implement
protocols necessary to ensure that nurses knew when inmates
in MOC1 required medical care was “substantially certain”
to result in inmates failing to receive the proper treatment,
creating a likelihood of serious injury or death. Castro,
833 F.3d at 1076.

Ultimately, we conclude that summary judgment should
not have been granted on the County’s liability under
Monell. Plaintiff has put forward sufficient circumstantial
evidence of the County’s knowledge such that a reasonable
jury could find deliberate indifference.

To begin, a jury could infer from the more rigorous
policies the County put in place for the sobering and safety
cells that it was aware of the importance of ensuring that the
nursing staff knew which inmates required medical
treatment or observation. For the sobering and safety cells,
the medical staff listed the name and location of each patient
on a whiteboard. Specific nurses were assigned to monitor
each cell. And nurses filled out written logs with their
48 SANDOVAL V. COUNTY OF SAN DIEGO

observations of the inmates held in those cells. A reasonable
jury could conclude that the County implemented these
practices because it understood they were necessary to
ensure that inmates requiring medical care would not fall
through the cracks. Cf. id. at 1077 (explaining that a
county’s knowledge can be inferred from its ordinances).

This conclusion is only reinforced by the fact that, after
Sandoval’s death, the County put in place a new practice for
MOC1. Now, when a deputy places an inmate requiring
medical care in MOC1, he must place a magnetic placard on
the door indicating that the inmate is there for medical
reasons. A jury could view this as an acknowledgement by
the County that its prior practices—which relied exclusively
on verbal communication—were insufficient. 18 And, as
explained, it could be reasonably inferred from the fact that
the County had implemented more extensive tracking
measures for the sobering and safety cells that it knew at the
time that relying on verbal communications alone would
create a substantial risk that an inmate’s serious medical
needs could go unaddressed.

That is not to say that a jury is required to find deliberate
indifference on the record before us. Perhaps the County
could show at trial that there were good reasons for treating
MOC1 differently from the other medical cells, and that
despite the policies put in place for the sobering and safety
cells, it was not aware that similar practices were required to

18
To the extent the dissent suggests that evidence of the County’s
change in policy would be inadmissible as a subsequent remedial
measure under Federal Rule of Evidence 407, Dissent at 73, the County
forfeited this objection by failing to raise it in the district court. Skillsky
v. Lucky Stores, Inc., 893 F.2d 1088, 1094 (9th Cir. 1990) (“[F]ailure to
object to allegedly defective evidence waives the objection for purposes
of summary judgment[.]”).
 SANDOVAL V. COUNTY OF SAN DIEGO 49

provide adequate medical care in MOC1. But viewing the
evidence in the light most favorable to Plaintiff, we conclude
that there is a triable issue of fact as to the County’s liability
under Monell.

* * *

Viewing the evidence in Plaintiff’s favor, a jury could
conclude that Ronnie Sandoval would not have died but for
the defendants’ unreasonable response to his obvious signs
of medical distress. The district court therefore erred in
granting summary judgment. We reverse and remand for
further proceedings consistent with this opinion.

REVERSED.

COLLINS, Circuit Judge, concurring in the judgment in part
and dissenting in part:

Plaintiff Ana Sandoval (“Plaintiff”) brought this action
under 42 U.S.C. § 1983 as the successor in interest to Ronnie
Sandoval (“Sandoval”), who tragically died in custody at the
San Diego Central Jail. 1 During a probation search of his
residence, Sandoval surreptitiously swallowed some
methamphetamine in an apparent effort to avoid its
detection. After he was taken into custody for possession of
drugs and drug paraphernalia that were nonetheless found
during the search, the medical staff at the jail subsequently

1
Ana Sandoval and her children also assert additional state-law
claims on their own behalf, but the district court remanded those claims
to state court after dismissing the § 1983 claims. Ana Sandoval, as
successor in interest to Ronnie Sandoval, is the sole plaintiff in the
§ 1983 claims asserted in the operative complaint.
50 SANDOVAL V. COUNTY OF SAN DIEGO

failed to detect that Sandoval had overdosed and that he was
lying when he said that he was not under the influence.
Compounding these problems, when Sandoval ultimately
collapsed in his cell, there was a delay in summoning the
paramedics needed to address his dire condition. Alleging
that the jail employees violated Sandoval’s constitutional
rights through deliberate indifference to his medical needs,
Plaintiff asserted claims under § 1983 against three of the
jail’s nurses and against the county as operator of the jail.
The district court subsequently granted summary judgment
to all Defendants, and Plaintiff appeals the dismissal of the
§ 1983 claims.

I agree with the majority’s ultimate conclusion that
Nurses Dana Harris and Maria Llamado were not entitled to
summary judgment, but I would affirm the district court’s
grant of summary judgment to Nurse Romeo de Guzman and
to the County of San Diego. Because my reasoning differs
from the majority’s even with respect to Harris and Llamado,
I concur only in the judgment in part, and I otherwise
respectfully dissent.

I

Before turning to the merits, I must first briefly respond
to the majority’s unsolicited essay on the district court’s
evidentiary rulings. The district court held that, by failing to
respond to Defendants’ evidentiary objections to the
evidence Plaintiff had submitted in opposition to
Defendants’ summary judgment motion, Plaintiff forfeited
any challenge to those evidentiary objections, which the
court therefore sustained. In her opening brief in this court,
Plaintiff challenged the district court’s evidentiary ruling
with respect to only one item of evidence that she had
submitted—viz., the report prepared by one of the police
officers in this matter. As I explain below, I agree with
 SANDOVAL V. COUNTY OF SAN DIEGO 51

Plaintiff that this document was admissible and that the
district court erred in concluding otherwise. See infra at 65
n.4. That observation suffices to dispose of the evidentiary
issues raised in the parties’ briefs in this court, and we should
have stopped there.

Nonetheless, the majority gratuitously proceeds to
engage in a lengthy lecture about the perceived inadequacy
of the Defendants’ evidentiary objections below and of the
district court’s ruling on them. See Maj. Opin. at 12–16. But
given that no party asked us in the merits briefs to review
any other evidentiary issue, the majority should not have
raised this panoply of additional issues sua sponte. See
United States v. Sineneng-Smith, 140 S. Ct. 1575, 1579
(2020) (“In our adversarial system of adjudication, we
follow the principle of party presentation,” under which
“‘we rely on the parties to frame the issues for decision and
assign to courts the role of neutral arbiter of matters the
parties present.’” (citation omitted)); Independent Towers of
Washington v. Washington, 350 F.3d 925, 929 (9th Cir.
2003) (“Our circuit has repeatedly admonished that we
cannot ‘manufacture arguments for an appellant’ and
therefore we will not consider any claims that were not
actually argued in appellant’s opening brief.” (citation
omitted)).

II

The district court granted summary judgment to the three
individual Defendants (the “Nurses”), concluding that
Plaintiff had failed to establish the requisite deliberate
indifference and that, in any event, the Nurses were entitled
to qualified immunity. In reversing the judgment as to the
Nurses, the majority applies the wrong legal standards to the
qualified immunity inquiry and, as to Nurse de Guzman,
reaches the wrong result.
52 SANDOVAL V. COUNTY OF SAN DIEGO

A

In opposing the Nurses’ claim of qualified immunity,
Plaintiff had to show that the Nurses violated clearly
established law as it stood in 2014, when they acted.
Because the then-controlling deliberate-indifference liability
standards included a subjective element, Plaintiff therefore
had to make a showing of subjective deliberate indifference
to defeat qualified immunity, and she had to do so even
though that subjective element of the test for liability has
since been overruled. The majority errs—and expressly
creates a circuit split—in reaching the oxymoronic
conclusion that a county employee who did not even violate
the law at the time he or she acted can nonetheless be said to
have violated clearly established law at that time.

1

Jail employees are entitled to qualified immunity “unless
(1) they violated a federal statutory or constitutional right,
and (2) the unlawfulness of their conduct was ‘clearly
established at the time.’” District of Columbia v. Wesby,
138 S. Ct. 577, 589 (2018) (quoting Reichle v. Howards,
566 U.S. 658, 664 (2012)). Whether an employee’s conduct
violated clearly established law must be “‘judged against the
backdrop of the law at the time of the conduct.’” Kisela v.
Hughes, 138 S. Ct. 1148, 1152 (2018) (quoting Brosseau v.
Haugen, 543 U.S. 194, 198 (2004)). Changes in the
applicable law that occur subsequent to the employee’s
actions are “therefore ‘of no use in the clearly established
inquiry.’” Id. at 1154 (quoting Brosseau, 543 U.S. at 200
n.4). Because the conduct here occurred in 2014, “the law
at that time must be our guide.” Robinson v. Solano Cnty.,
278 F.3d 1007, 1015 (9th Cir. 2002) (en banc).
 SANDOVAL V. COUNTY OF SAN DIEGO 53

Current Ninth Circuit law holds that, in light of the
Supreme Court’s decision in Kingsley v. Hendrickson,
576 U.S. 389 (2015), a pretrial detainee’s claim of deliberate
indifference to serious medical needs “must be evaluated
under an objective deliberate indifference standard,” Gordon
v. County of Orange, 888 F.3d 1118, 1124–25 (9th Cir.
2018) (emphasis added). But at the time the Nurses acted in
this case—i.e., 2014, before the decision in Kingsley—the
then-established Ninth Circuit law provided that the same
“deliberate indifference” standard that applies to Eighth
Amendment medical care claims asserted by convicted
prisoners also “applie[d] to claims that correction facility
officials failed to address the medical needs of pretrial
detainees” in violation of the Fourteenth Amendment.
Clouthier v. County of Contra Costa, 591 F.3d 1232, 1242
(9th Cir. 2010), overruled by Castro v. County of Los
Angeles, 833 F.3d 1060 (9th Cir. 2016) (en banc). 2 Under
this standard, a detainee had to show both a “serious medical
need” and the defendant’s “deliberate indifference” to that
need. Conn v. City of Reno, 591 F.3d 1081, 1095–96 (9th
Cir. 2010), vacated, 563 U.S. 915 (2011), reinstated in
relevant part, 658 F.3d 897 (9th Cir. 2011). To establish the
requisite deliberate indifference, a detainee had to “show

2
In Castro, we expressly “overrule[d] Clouthier to the extent that it
identified a single deliberate indifference standard for all § 1983 claims
and to the extent that it required a plaintiff to prove an individual
defendant’s subjective intent to punish in the context of a pretrial
detainee’s failure-to-protect claim.” 833 F.3d at 1070 (emphasis added).
We instead held that a pretrial detainee’s “due process claim for failure
to protect” is governed by a purely objective test. Id. at 1071. In Gordon,
we extended Castro’s reasoning to “claims for violations of the right to
adequate medical care ‘brought by pretrial detainees against individual
defendants under the Fourteenth Amendment,’” and held that such
claims “must be evaluated under an objective deliberate indifference
standard.” 888 F.3d at 1124–25 (quoting Castro, 833 F.3d at 1070).
54 SANDOVAL V. COUNTY OF SAN DIEGO

that the [jail employees] were (a) subjectively aware of the
serious medical need and (b) failed to adequately respond.”
591 F.3d at 1096. In turn, in order for a jail employee to be
found to have such subjective awareness, the employee
“‘must both be aware of facts from which the inference could
be drawn that a substantial risk of serious harm exists, and
he [or she] must also draw the inference.’” Id. (quoting
Farmer v. Brennan, 511 U.S. 825, 837 (1994)).

Because the qualified immunity issue turns on whether
“‘any reasonable official in the defendant’s shoes would
have understood that he [or she] was violating’” then-
existing law, Kisela, 138 S. Ct. at 1153 (quoting Plumhoff v.
Rickard, 572 U.S. 765, 779 (2014)), and because then-
existing law required subjective awareness of a serious
medical need, Conn, 591 F.3d at 1096, it follows that a nurse
who, at the time, did not subjectively apprehend Sandoval’s
serious medical needs is entitled to qualified immunity. Put
simply, a nurse who did not violate then-existing law cannot
possibly be said to have violated clearly established law, and
such a nurse is therefore entitled to qualified immunity.
Consequently, unless Plaintiff presented sufficient evidence
to raise a triable issue with respect to (inter alia) a given
nurse’s subjective awareness of Sandoval’s serious medical
needs, that nurse would be entitled to qualified immunity.
See, e.g., Acosta v. Hill, 244 F. App’x 792, 794 (9th Cir.
2007) (where “standard for deadly force” changed by virtue
of intervening en banc decision, qualified immunity was still
analyzed under the previously applicable standard)
(applying Vera Cruz v. City of Escondido, 139 F.3d 659, 660
(9th Cir. 1997), overruled by Smith v. City of Hemet,
394 F.3d 689, 706 (9th Cir. 2005) (en banc)).
 SANDOVAL V. COUNTY OF SAN DIEGO 55

2

The majority nonetheless contends that the qualified
immunity inquiry in this case is governed by a purely
objective standard, viz., whether “a reasonable nurse,
knowing what Llamado, Harris, and de Guzman knew,
would have understood that [his or her actions] ‘presented
such a substantial risk of harm to [Sandoval] that the failure
to act was unconstitutional.’” Maj. Opin. at 39 (citation
omitted). According to the majority, the qualified immunity
inquiry requires an exclusively objective focus that
effectively shears off any subjective element of the
previously existing liability standard. As explained above,
this position cannot be correct, because it rests on the self-
contradictory premise that one can violate the clearly
established law at the time without even violating the law at
the time. See supra at 54. Although the majority argues that
its position is required by Ninth Circuit precedent, its ruling
here is both contrary to our caselaw and creates a split with
at least three other circuits.

a

The majority wrongly asserts that its approach was
endorsed in Horton ex rel. Horton v. City of Santa Maria,
915 F.3d 592 (9th Cir. 2019), where we observed that, under
Estate of Ford v. Ramirez-Palmer, 301 F.3d 1043 (9th Cir.
2002), the qualified immunity inquiry in a deliberate
indifference case “should concentrate on the objective
aspects of the constitutional standard.” Horton, 915 F.3d
at 600 (emphasis added). But as a review of our decisions in
Estate of Ford and Horton confirms, this observation merely
reflects the fact that, in most deliberate indifference cases,
the subjective elements of the liability standard have little
work to do at the qualified immunity stage, so that the
resulting focus should ordinarily be on the objective aspects.
56 SANDOVAL V. COUNTY OF SAN DIEGO

The fact that, as a practical matter, the inquiry should
ordinarily “concentrate” on the objective aspects does not
imply (as the majority would have it) that any consideration
of the subjective aspects of the test is forbidden, and in fact
Horton clearly rejects the majority’s view.

In Estate of Ford, we addressed the continued validity of
our prior decision in Hamilton v. Endell, 981 F.2d 1062 (9th
Cir. 1992), which had held that a “finding of deliberate
indifference necessarily precludes a finding of qualified
immunity” inasmuch as “prison officials who deliberately
ignore the serious medical needs of inmates cannot claim
that it was not apparent to a reasonable person that such
actions violated the law.” Id. at 1066 (first emphasis added).
Estate of Ford did not dispute Hamilton’s underlying
premise that, with respect to the subjective aspect of the
deliberate indifference test, the constitutional merits inquiry
and the qualified immunity inquiry collapsed into one
another. But given the Supreme Court’s subsequent
emphasis on maintaining the distinction between the
underlying merits of a claim and the qualified immunity
inquiry, Estate of Ford concluded that Hamilton had erred in
completely “collaps[ing] the deliberate indifference part of
the constitutional inquiry into the qualified immunity
inquiry.” 301 F.3d at 1050 (citing Saucier v. Katz, 533 U.S.
194 (2001)). As Estate of Ford explained, in addition to the
subjective element, the deliberate indifference test has “an
objective component as well,” and with respect to that
component, the merits inquiry and the qualified immunity
inquiry do not collapse together. Id. at 1049–50. Because
the objective component of the deliberate indifference test
requires a “substantial risk of serious harm,” a “reasonable
prison official” could know all the relevant facts and “yet
mistakenly, but reasonably, perceive that the exposure in any
given situation was not that high.” Id. at 1050. In such
 SANDOVAL V. COUNTY OF SAN DIEGO 57

circumstances, an officer “would be entitled to qualified
immunity” despite the subjectively malign disregard of what
was wrongly (but reasonably) perceived to be a minor risk.
Id.

Estate of Ford thus did not hold that the qualified
immunity inquiry is exclusively objective and that it
affirmatively disregards any subjective elements of the
underlying liability standard. Rather, Estate of Ford
recognized that, when the underlying liability standard
remains unchanged and has both subjective and objective
components, the merits inquiry and the qualified immunity
inquiry will overlap completely with respect to the subjective
element, but that the same cannot be said of the objective
element. 301 F.3d at 1049–50. In such circumstances, the
qualified immunity inquiry will necessarily focus on the
objective aspects of the test, because the subjective
component of the test “does not fit easily with the qualified
immunity inquiry.” Id. at 1049.

But the situation is different if, after the defendant acted,
the subjective element of the liability standard is modified or
eliminated. In that circumstance, the merits inquiry (which
no longer has that subjective element) will not overlap
completely with the qualified immunity inquiry (which,
because it examines the law at the time the defendant acted,
still does have a subjective element). Thus, in contrast to the
situation in Hamilton and Estate of Ford, the merits and
qualified immunity inquiries in the change-of-law scenario
do not collapse into each other with respect to the previously
applicable subjective element of the liability test. In such a
case, the court therefore must separately consider at the
qualified immunity stage whether the Defendants violated
the law at the time of the conduct, which includes a
58 SANDOVAL V. COUNTY OF SAN DIEGO

consideration of the since-rejected subjective deliberate
indifference standard.

Our decision in Horton, which involved the “attempted
suicide of a jailed pretrial detainee,” confirms this analysis.
915 F.3d at 596. The district court in Horton, applying the
then-applicable subjective test, denied qualified immunity to
defendant police officer Brice, holding that “there is a
genuine issue of fact regarding whether Officer Brice acted
with deliberate indifference to Horton’s safety.” Id. at 598.
Consistent with Estate of Ford, we recognized that, “even
where the clearly established legal standard requires
deliberate indifference”—as it did at the time Brice acted—
“the qualified immunity inquiry should concentrate on the
objective aspects of the constitutional standard.” Id. at 600
(emphasis added). Under Estate of Ford, the fact that there
was a triable issue as to Brice’s subjective knowledge under
the “clearly established legal standard” was not enough to
defeat qualified immunity, because Horton also had to show
that any reasonable officer would have known that Brice’s
actions objectively “presented such a substantial risk of harm
to Horton that the failure to act was unconstitutional.” Id.
Reviewing the caselaw on that objective aspect of the
qualified immunity inquiry at the time that Brice acted, we
held that it was “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.” Id. at 601–02.

Because we reversed the district court’s denial of
qualified immunity based on the objective elements of
clearly established law, we expressly declined to consider,
for qualified immunity purposes, how the subjective
elements of the pre-Castro deliberate indifference test—
which governed at the time of the conduct—applied to
 SANDOVAL V. COUNTY OF SAN DIEGO 59

Horton’s case. 915 F.3d at 602. But in discussing this issue,
we expressly noted that the new Gordon objective standard
would not govern this aspect of the inquiry. The objective
standard, we explained, would “guide our analysis” of the
merits 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.” Id.
(emphasis in original). Because the subjective standard was
no longer applicable to future cases and Brice’s entitlement
to qualified immunity had already been established on other
grounds, “no purpose would be served for future cases from
delineating the application of that [pre-Castro] standard to
the constitutional merits of this case.” Id. Thus, although
our finding of qualified immunity based on the objective
element of the pre-Castro test made it unnecessary to
address the subjective element of the test under the
previously applicable law, Horton clearly recognized—
contrary to the majority’s ruling—that the subjective
element remained an aspect of “the two-step qualified
immunity procedure” in the change-of-law scenario. Id.
The “rule of Horton,” see Maj. Opin. at 30, is thus exactly
the opposite of what the majority claims it is.

b

In addition to being inconsistent with our precedent, the
majority’s ruling creates a clear split with the decisions of at
least three other circuits. Indeed, the majority opinion
candidly acknowledges that the Third, Eighth, and Tenth
Circuits have held that courts addressing comparable claims
must “apply a subjective framework for purposes of
qualified immunity, even though it ha[s] since been replaced
60 SANDOVAL V. COUNTY OF SAN DIEGO

by an objective standard.” See Maj. Opin. at 38 n.15
(emphasis added).

For example, in Kedra v. Schroeter, 876 F.3d 424 (3d
Cir. 2017), the Third Circuit addressed a substantive due
process claim arising from an alleged “state-created danger”
involving an accidental shooting during a firearms training
exercise. Id. at 432. Although current Third Circuit law
would apply an “objective” standard in addressing such a
claim, the court held that this standard could not be applied
to the qualified immunity inquiry because “the objective
theory of deliberate indifference was not clearly established
at the time of the shooting.” Id. at 432. As the court
explained, “we assess qualified immunity based on the law
that was ‘clearly established at the time an action occurred,’”
and at the time of the shooting in Kedra, “it was not yet
clearly established whether deliberate indifference in the
substantive due process context was governed by an
objective or subjective standard.” Id. at 440 (citation
omitted). The qualified immunity inquiry thus turned on
whether the plaintiff had “pleaded deliberate indifference
under the subjective test, which was then-clearly
established,” and after reviewing the complaint, the court
concluded that the plaintiff had sufficiently alleged a “state-
created danger based on actual knowledge of a substantial
risk of serious harm—the subjective theory of deliberate
indifference that was then-clearly established.” Id. at 440,
444 (emphasis added).

Likewise, in Hall v. Ramsey County, 801 F.3d 912 (8th
Cir. 2015), the Eighth Circuit held that any change in
liability standards effected by the Supreme Court’s decision
in Kingsley could not have any impact on the qualified
immunity analysis. The court there addressed a Fourteenth
Amendment excessive force claim asserted by an
 SANDOVAL V. COUNTY OF SAN DIEGO 61

involuntarily committed person, and the court noted that the
ruling in Kingsley suggested that such a claim would now be
governed by an objective test. Id. at 917 n.3. But the court
held that, because the question of qualified immunity turns
on whether the law was “‘clearly established at the time of
the’ alleged violation,” the decision in “Kingsley does not
[a]ffect the standard against which we evaluate the
[defendants’] conduct in the qualified immunity analysis.”
Id. (citation omitted).

More recently, the Tenth Circuit similarly applied the
subjective deliberate indifference test in addressing whether
jail officials were entitled to qualified immunity with respect
to claims that they had failed to provide necessary medical
care to a pretrial detainee who was experiencing drug
withdrawal symptoms. Quintana v. Santa Fe Cnty. Bd. of
Comm’rs, 973 F.3d 1022, 1027–28 (10th Cir. 2020).
Applying the law that was established at the time the
defendants acted, the court held that the qualified immunity
analysis “requires both an objective and a subjective
inquiry.” Id. at 1028. In a footnote, the majority addressed
Judge Bacharach’s separate opinion concurring in part and
dissenting in part and explicitly “endorse[d] Judge
Bacharach’s rejection of the argument that Kingsley . . .
requires us to conduct only an objective inquiry.” Id. at 1028
n.1. In the referenced discussion, Judge Bacharach
explained that, although the “subjective prong” of the
deliberate indifference test “has been altered for at least
some claims involving pretrial detainees,” the court had to
“apply the subjective prong as it was clearly established at
the time of [the plaintiff’s] detention.” Id. at 1038 n.2 (opin.
of Bacharach, J.); see also id. at 1049 (“Kingsley did not
clearly apply to pretrial detainees’ claims of inadequate
medical care, so the district court did not err in applying the
subjective prong for purposes of qualified immunity.”). The
62 SANDOVAL V. COUNTY OF SAN DIEGO

Tenth Circuit’s approach is thus also directly contrary to the
majority’s analysis here. See also Perry v. Durborow,
892 F.3d 1116, 1122 n.1 (10th Cir. 2018) (to the extent that
the governing standard was now “objective deliberate
indifference, this lower standard wasn’t clearly established
as of” the date of the incident in question and could not be
applied in analyzing qualified immunity).

Although the majority’s position is directly contrary to
that of the Third, Eighth, and Tenth Circuits, the majority
claims that its approach is supported by the decisions of
several other circuits. See Maj. Opin. at 32–34. That is
doubtful. Only two of these cases involved a claim of
deliberate indifference to the serious medical needs of a
pretrial detainee, and the court in both cases applied the
subjective test in addressing qualified immunity. Dyer v.
Houston, 964 F.3d 374, 383–84 (5th Cir. 2020) (holding that
confusion over the exact nature of the subjective element did
not absolve the district court of having to decide whether the
defendants were liable under the then-clearly established
standards); Hopper v. Plummer, 887 F.3d 744, 756–57 (6th
Cir. 2018) (declining to disturb district court’s denial of
qualified immunity in light of its “finding of a genuine issue
of material fact as to defendants’ ‘knowledge of a substantial
risk of serious harm’”).

The majority instead cites the portion of Hopper that
involved an excessive force claim, as well as two other
decisions involving such claims. Hopper, 887 F.3d at 755–
56; Miranda-Rivera v. Toledo-Davila, 813 F.3d 64 (1st Cir.
2016); Kingsley v. Hendrickson, 801 F.3d 828 (7th Cir.
2015) (decision on remand from the Supreme Court’s
Kingsley decision). The courts in all three of these cases
dismissed the notion that any previously applicable
subjective element of the excessive force test provided any
 SANDOVAL V. COUNTY OF SAN DIEGO 63

basis for granting qualified immunity, and to that extent
those cases bear some arguable similarity to the majority’s
conclusion here. Hopper, 887 F.3d at 755; Miranda-Rivera,
813 F.3d at 73; Kingsley, 801 F.3d at 831. But there is a
critical difference between the role of the subjective element
in an excessive force claim (in which the officer
affirmatively applies force, see Kingsley, 576 U.S. at 395–
96) and a claim of deliberate indifference to serious medical
needs (in which the official fails to act). In excessive force
cases in which the objective component of the qualified
immunity inquiry is met—meaning that the officer has
applied an objective level of force that any reasonable officer
would know is excessive—there are likely to be few, if any,
cases in which the officer who is knowingly and
affirmatively applying that force could plausibly assert that
he did not simultaneously act with the requisite subjective
intent of “at least recklessness.” Kingsley v. Hendrickson,
744 F.3d 443, 453 (7th Cir. 2014) (describing the prior law
in the decision that was later reversed by the Supreme Court
in Kingsley). In other words, satisfying the objective
standard for qualified immunity in such excessive force
cases almost certainly means that the subjective element is
met as well. By contrast, where the gravamen of the
violation is a failure to act (as in the context of deliberate
indifference to serious medical needs), the objective
unreasonableness of a nurse’s failure to detect a serious
medical risk does not similarly lead to an inescapable
conclusion that the nurse must have actually subjectively
appreciated that risk. People can, and do, sometimes
subjectively overlook what they should obviously detect.

These three cases thus supply little support for the
majority’s sweeping rule that the qualified immunity inquiry
is exclusively objective and requires courts to affirmatively
and always disregard any subjective elements of the
64 SANDOVAL V. COUNTY OF SAN DIEGO

previously clearly established law. In all events, to the
extent that these cases could be read to endorse the
majority’s flawed analysis, then they are wrong as well. 3

* * *

Accordingly, each of the Nurses here is entitled to
qualified immunity unless Plaintiff presented sufficient
evidence to show (inter alia) that that Nurse was
subjectively “‘aware of facts from which the inference could
be drawn that a substantial risk of serious harm [to Sandoval]
exists,’” and that he or she actually “‘dr[e]w the inference.’”
Conn, 591 F.3d at 1096 (quoting Farmer, 511 U.S. at 837).

B

The district court correctly concluded that Plaintiff failed
to create a genuine dispute of material fact under the
applicable subjective standard as to Nurse Romeo de
Guzman, but it erred in finding that Harris and Llamado
were entitled to qualified immunity.

3
The majority opinion also misleadingly quotes, out of context, the
Supreme Court’s observation in Crawford-El v. Britton, 523 U.S. 574
(1998), that “evidence of improper motive is irrelevant on the issue of
qualified immunity.” Id. at 589 (quoted at Maj. Opin. at 31). Crawford-
El was merely referring to the now well-settled rule that an otherwise
valid “defense of qualified immunity may not be rebutted by evidence
that the defendant’s conduct was malicious or otherwise improperly
motivated.” Id. at 588. Crawford-El did not address the distinctive
question presented here concerning how to apply qualified immunity
principles in the context of a change in liability standards from subjective
to objective.
 SANDOVAL V. COUNTY OF SAN DIEGO 65

1

The district court correctly held that Plaintiff had not
presented sufficient evidence to permit a reasonable jury to
find that de Guzman “was actually aware Sandoval had a
serious medical need.” As the district court noted, the
undisputed evidence confirms that “Sandoval did not advise
any prison official of his drug overdose condition”; on the
contrary, he “lied and denied his use of drugs to Nurse de
Guzman.” In arguing that de Guzman nonetheless actually
became subjectively aware of Sandoval’s acute
methamphetamine intoxication, Plaintiff places primary
weight on two statements in the police report by one of the
involved officers (Deputy Rodriguez): (1) de Guzman’s
statement, as recorded by Rodriguez, that Sandoval should
be sent to a “sobering tank”; and (2) Rodriguez’s own
observation that Sandoval “was shaking mildly” and
“appeared to be having withdrawal[] from drugs.” While I
agree with the majority that these statements in this
document should not have been held inadmissible, 4 neither

4
In opposing Defendants’ summary judgment motion below,
Plaintiff specifically argued that the police reports she submitted are not
hearsay under Federal Rule of Evidence 803(8). That statement was
sufficient to preserve this position, notwithstanding Plaintiff’s
subsequent failure to file any response to the evidentiary objections that
Defendants submitted with their reply, and the district court therefore
erred in concluding that Plaintiff forfeited her admissibility arguments
concerning those reports. We have explained that police reports are
admissible under Rule 803(8) as to the reporting officer’s own
observations, United States v. Pazsint, 703 F.2d 420, 424 (9th Cir. 1983),
and we have also explained that statements made to a government
official and recorded in an official report may also be admissible if they
are covered by a separate hearsay exception (or if they are not themselves
hearsay), see United States v. Morales, 720 F.3d 1194, 1202 (9th Cir.
2013). Under this framework, any statements of de Guzman that are
66 SANDOVAL V. COUNTY OF SAN DIEGO

of these statements creates a triable issue as to de Guzman’s
subjective awareness of Sandoval’s medical predicament.

As to the first statement, de Guzman’s suggestion that
Sandoval should be sent to a “sobering tank” does not
support a reasonable inference that de Guzman was
subjectively aware that Sandoval faced a serious medical
need. If anything, it shows the exact opposite. I agree with
Plaintiff that this comment supports an inference that de
Guzman was aware that Sandoval might be under the
influence of something, 5 but that is not enough to carry
Plaintiff’s burden of proof. Plaintiff had to show that de
Guzman was subjectively aware that Sandoval was under the
influence in a manner that presented a serious medical need.
De Guzman’s “sobering tank” comment is insufficient to
permit a jury to draw that inference. On the contrary, the
suggestion that Sandoval should be removed from the
current cell adjacent to the nurses’ station (“Medical
Observation Cell #1” or “MOC1”) and sent to a sobering cell
negates any suggestion that de Guzman actually drew the
inference that Sandoval faced a serious medical need.
Because de Guzman knew that an inmate in a sobering cell
would only be checked every four hours, his suggestion that
Sandoval could be sent there reflects, at most, a subjective

recorded in Rodriguez’s report would be admissible against de Guzman
as a non-hearsay opposing-party statement. See FED. R. EVID. 801(d)(2).

5
That inference is further supported by de Guzman’s comment,
during his deposition, that he may have overheard an officer say
“[s]omething like—‘I just found out that [Sandoval’s] under the
influence.’”
 SANDOVAL V. COUNTY OF SAN DIEGO 67

belief that Sandoval was under the influence in a manner that
did not present a substantial risk of serious harm. 6

Plaintiff argues that, in light of an additional statement
in Rodriguez’s report, a reasonable jury could find that de
Guzman was aware that Sandoval’s condition was serious.
Specifically, Plaintiff notes that, in his report, Rodriguez
stated that “Sandoval appeared to be having withdrawal[]
from drugs.” But as the district court noted, Rodriguez’s
report does not say that Rodriguez ever told de Guzman that
he (Rodriguez) thought Sandoval was experiencing
withdrawal symptoms—much less that Sandoval was
experiencing symptoms that suggested a substantial risk of
serious harm.

None of the other evidence cited by Plaintiff would
permit a reasonable jury to find that de Guzman became
subjectively aware that Sandoval’s situation presented a
substantial risk of serious harm. Plaintiff points out that, in
response to de Guzman’s suggestion that Sandoval should
be moved to a sobering cell, Deputy Wilkinson and Corporal
Powell relayed back to de Guzman their view that Sandoval
should stay in MOC1, but Plaintiff does not point to any
evidence that Wilkinson or Powell ever told de Guzman that
they thought that Sandoval faced any specific, much less
serious, medical risk. Plaintiff cites only Rodriguez’s report,
but that report merely states that Wilkinson and Powell

6
The majority surmises that perhaps de Guzman knew that Sandoval
had a serious medical need but nonetheless wanted to send him to a
sobering cell because de Guzman “did not want to deal with the hassle
of providing” the necessary care. See Maj. Opin. at 42 n.16. No record
evidence supports the majority’s speculation, which provides no basis
for denying summary judgment here. See Nelson v. Pima Cmty. Coll.,
83 F.3d 1075, 1081–82 (9th Cir. 1996) (“mere allegation and speculation
do not create a factual dispute for purposes of summary judgment”).
68 SANDOVAL V. COUNTY OF SAN DIEGO

“determined it would be better if Sandoval remained in [his]
observation cell”; it does not state that they provided any
details as to why they had that view (much less whether they
had determined that Sandoval faced any sort of serious
medical need).

Because Plaintiff failed to present sufficient evidence to
show that de Guzman was subjectively aware of Sandoval’s
serious medical needs, de Guzman was entitled to qualified
immunity. I therefore dissent from the majority’s reversal of
the district court’s grant of summary judgment to de
Guzman.

2

Under the correct qualified immunity standards, I
conclude that Nurse Dana Harris was not entitled to
summary judgment.

Plaintiff has presented ample evidence to support her
theory that, under an objective standard, Harris was grossly
incompetent because she did not understand that in San
Diego, the Emergency Medical Technicians (“EMTs”) that
she had initially summoned could not perform the Advanced
Cardiac Life Support (“ACLS”) that Sandoval needed. But
as explained earlier, the qualified immunity inquiry also has
a subjective component and requires Plaintiff to present
sufficient evidence to establish that Harris was subjectively
aware that her actions were creating or exacerbating a
substantial risk of serious harm. I agree with Plaintiff that
the evidence in the summary judgment record is sufficient to
permit a jury to find that Harris was subjectively aware that
Sandoval was having a seizure and that the seizure posed a
substantial risk of serious harm, but that is not enough to
show that Harris acted with deliberate indifference. Rather,
Plaintiff had to show that Harris was subjectively aware that
 SANDOVAL V. COUNTY OF SAN DIEGO 69

her response to the situation was inadequate and placed
Sandoval at a substantial risk of serious harm. But Plaintiff’s
above-described theory that Harris was “[t]oo
[i]ncompetent” to subjectively know that EMTs could not
perform ACLS is affirmatively inconsistent with the view
that Harris subjectively drew the inference that her actions
were placing Sandoval at a substantial risk of serious harm.
Accordingly, under this view of the evidence, the very fact
of Harris’s subjective obliviousness would entitle her to
qualified immunity.

Nonetheless, I believe that the district court erred in
granting summary judgment to Harris. In my view, the
sharply conflicting evidence in the summary judgment
record is sufficient to permit the alternative inference that
Harris did subjectively know that she needed to call 911 for
paramedics (who could perform ACLS) and that EMTs
would be inadequate, but that for whatever reason (e.g.,
panic, stubbornness, foolishness, etc.), she refused to do so.
Although Harris insisted that no one told her to call 911 or
paramedics, Plaintiff presented competing evidence that:
(1) Deputy Matthew Andrade (who had himself been trained
as an EMT) told Harris two or three times that paramedics
should be called; (2) very early into the emergency, Nurse
Llamado concluded that “9-1-1 should be called,” and she
said out loud to Harris and the others multiple times that
Sandoval “has to go out 9-1-1”; (3) after consulting with the
supervising nurse (Shirley Bautista), Llamado told Harris
that “Shirley said he has to go now 9-1-1”; and (4) Llamado
confirmed that calling paramedics was “[s]tandard nursing
protocol” at the jail in the case of a prolonged seizure. Based
on this evidence, a rational jury could readily conclude that
Harris well knew that she needed to call 911 and
inexplicably failed to do so. See Farmer, 511 U.S. at 842
(“Whether a[n] . . . official had the requisite knowledge of a
70 SANDOVAL V. COUNTY OF SAN DIEGO

substantial risk is a question of fact subject to demonstration
in the usual ways, including inference from circumstantial
evidence.”). And, based on the same evidence, a jury could
reasonably conclude that the resulting deprivation was
“objectively . . . sufficiently serious,” thereby satisfying the
objective component of then-existing law concerning
deliberate indifference to serious medical needs. Estate of
Ford, 301 F.3d at 1049.

Moreover, I would further conclude that, under then-
existing law, it was clearly established that Harris’s conduct
violated Sandoval’s constitutional rights. Long before this
incident, the Supreme Court had held that, to show deliberate
indifference to a serious medical need, “it is enough that the
official acted or failed to act despite his knowledge of a
substantial risk of serious harm.” Farmer, 511 U.S. at 842.
Given that the evidence here amply supports the view that
Harris subjectively knew that paramedics needed to be called
to avoid objectively serious harm to Sandoval, and given that
Harris’s behavior was so obviously objectively
unreasonable, it follows that, “at the time of [Harris’s]
conduct, the law was ‘sufficiently clear’ that every
‘reasonable official would understand that what [s]he is
doing’ is unlawful.” Wesby, 138 S. Ct. at 589 (quoting
Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)) (emphasis
added). Harris therefore violated clearly established law at
the time she acted. See id.

The only remaining question is whether, under existing
law, Harris deprived Sandoval of a constitutional right.
Pearson v. Callahan, 555 U.S. 223, 232 (2009). I agree with
the majority that Plaintiff presented sufficient evidence to
permit a jury to find that Harris violated Sandoval’s
constitutional rights under the now-governing objective test
set forth in Gordon. See Maj. Opin. at 39–40.
 SANDOVAL V. COUNTY OF SAN DIEGO 71

For the foregoing reasons, I concur in the judgment
reversing the grant of summary judgment to Harris.

3

For substantially similar reasons, I concur in the
judgment reversing the district court’s grant of summary
judgment to Nurse Maria Llamado. Indeed, Plaintiff’s
evidence as to Llamado is, if anything, even stronger than as
to Harris. Llamado’s own deposition testimony confirms
that she was subjectively aware that Harris was wrong in
summoning only EMTs and not paramedics. Llamado also
admitted at her deposition that she should have called
paramedics herself, stating that she had “learned [her]
lesson.” Under the facts that could reasonably be found by
the jury on this record, Llamado violated Sandoval’s clearly
established rights under then-existing law, and her actions
also violated Sandoval’s rights under current law. Summary
judgment for Llamado was therefore improper.

III

In my view, the district court correctly granted summary
judgment to the county on Plaintiff’s § 1983 claims against
it, and I therefore dissent from that aspect of the majority’s
judgment.

Under Monell v. Department of Social Services, 436 U.S.
658 (1978), a local government entity “may not be held
liable under 42 U.S.C. § 1983, unless a policy, practice, or
custom of the entity can be shown to be a moving force
behind a violation of constitutional rights.” Dougherty v.
City of Covina, 654 F.3d 892, 900 (9th Cir. 2011). To
establish such liability, Plaintiff “must prove (1) that
[Sandoval] possessed a constitutional right of which [he]
was deprived; (2) that the municipality had a policy; (3) that
72 SANDOVAL V. COUNTY OF SAN DIEGO

this policy amounts to deliberate indifference to
[Sandoval’s] constitutional right; and, (4) that the policy is
the moving force behind the constitutional violation.” Id.
(citation and internal quotation marks omitted) (emphasis
added). Plaintiff contends that the county was deliberately
indifferent in having a policy or practice of using MOC1 as
a “mixed use” cell “for both correctional and medical
purposes” without imposing “appropriate safeguards,” such
as “routine medical monitoring, tracking logs and proper . . .
procedures” for transmitting information to incoming nurses
at the end of a given nurse’s shift. On the record presented
at summary judgment, this contention fails as a matter of
law, and summary judgment was properly granted.

Negligence alone is insufficient to plead a constitutional
tort, see County of Sacramento v. Lewis, 523 U.S. 833, 848–
49 (1998), and Plaintiff concedes that she must go further
and show that the policy, practice, or custom she challenges
“amounts to deliberate indifference to the plaintiff’s
constitutional right,” Dougherty, 654 F.3d at 900 (emphasis
added). The applicable “deliberate indifference” standard
for Monell claims, however, differs from the above-
discussed standard that applied to the individual Defendants
under then-existing law for qualified immunity purposes:
whereas the latter applies both an objective and a subjective
standard, the former is purely objective. See Farmer,
511 U.S. at 840–41; Castro, 833 F.3d at 1076. In the context
of an analogous claim about inadequate monitoring of jail
cells, we held in Castro that the objective deliberate
indifference standard for municipal liability under § 1983
requires a showing that “‘the facts available to city
policymakers put them on actual or constructive notice that
the particular omission is substantially certain to result in the
violation of the constitutional rights of their citizens.’” Id.
at 1076 (citation omitted); see also Board of Cnty. Comm’rs
 SANDOVAL V. COUNTY OF SAN DIEGO 73

v. Brown, 520 U.S. 397, 410 (1997) (“‘[D]eliberate
indifference’ is a stringent standard of fault, requiring proof
that a municipal actor disregarded a known or obvious
consequence of his action.”).

Plaintiff failed to present sufficient evidence to satisfy
this demanding standard, and the county was therefore
entitled to summary judgment. Plaintiff’s evidence of prior
confusion concerning why particular inmates were placed in
MOC1 may well support a claim that the county was
negligent, 7 but that evidence does not come close to showing
that the county had “‘actual or constructive notice’” that this
practice was “‘substantially certain’” to result in an
unconstitutional disregard of a serious medical need.
Castro, 833 F.3d at 1076 (citation omitted) (emphasis
altered). The fact that the county changed its practices
concerning MOC1 after this incident—even if admissible for
purposes going beyond merely proving that a policy,
practice, or custom existed, but see Conn, 591 F.3d at 1104
n.7 (applying Fed. R. Evid. 407 to cabin the use of post-event
practice)—does not establish that the county had the pre-
incident actual or constructive notice Castro requires. I
therefore disagree with the majority’s finding that a
reasonable jury could infer that the county had actual or
constructive knowledge that its practices in regard to the

7
The Plaintiff opening brief cites as evidence of confusion a
comment by one of her experts that the county’s practice “created a
constant state of chaos and lack of communication between the deputies
and the nursing staff.” The expert’s lengthy report, however, cites
nothing in the record to support this particular remark. Nurse Llamado
and Shirley Bautista, the charge nurse on the night in question, also
testified that the mixed-used nature of MOC1 was confusing to nursing
staff. However, this evidence of confusion does not create a triable issue
under the Castro standard.
74 SANDOVAL V. COUNTY OF SAN DIEGO

MOC1 cell were substantially certain to result in an
unconstitutional disregard of a serious medical need.

Plaintiff contends that the constructive notice standard
should not apply because here the county’s “policy itself
directs the unconstitutional action.” Plaintiff, however, has
presented no evidence that the policy itself is
unconstitutional. In particular, to the extent that Plaintiff
contends that the county had an unconstitutional policy,
practice, or custom to affirmatively and completely ignore
persons placed in MOC1, there is no evidence that the
county had such a policy: it is undisputed that the MOC1 cell
is visible to personnel at the nurses’ station; and, indeed, it
is undisputed that Sandoval’s eventual seizure and collapse
onto the floor was immediately detected.

For the foregoing reasons, I concur in the judgment in
part and respectfully dissent in part.