FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CLAUDIA HERRERA; CESAR ORTIZ, No. 20-55054
Plaintiffs-Appellants,
D.C. No.
v. 8:17-cv-00069-
JVS-KES
LOS ANGELES UNIFIED SCHOOL
DISTRICT, a public entity; JOSE
HUERTA; JOSE LOPEZ; DOES; LOS OPINION
ANGELES UNIFIED SCHOOL DISTRICT,
Defendants-Appellees,
and
COUNTY OF LOS ANGELES,
Defendant.
Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Argued and Submitted August 30, 2021
Pasadena, California
Filed December 1, 2021
Before: Sandra S. Ikuta, Mark J. Bennett, and
Ryan D. Nelson, Circuit Judges.
Opinion by Judge R. Nelson
2 HERRERA V. LAUSD
SUMMARY *
Civil Rights
The panel affirmed the district court’s order granting
summary judgment to defendants on a claim for deprivation
of familial relationship, brought under 42 U.S.C. § 1983 by
the parents of a disabled high school student who drowned
while on a field trip to a pool.
The panel held that the Fourteenth Amendment’s Due
Process Clause generally does not provide an affirmative
right to government aid, but a state’s failure to protect may
give rise to a § 1983 claim under the state-created danger
exception, which applies when the state affirmatively places
the plaintiff in danger by acting with deliberate indifference
to a known or obvious danger. The panel held that following
Kingsley v. Hendrickson, 576 U.S. 389 (2015), and Castro
v. Cty. of L.A., 833 F.3d 1060 (9th Cir. 2016) (en banc), an
objective deliberate-indifference standard has been applied
in excessive force and detention cases, but this court has
continued to apply a subjective standard in all state-created
danger claims and in non-detainee failure-to-protect claims.
The panel therefore applied a subjective standard.
Plaintiffs contended that a school aide was deliberately
indifferent because he recognized an unreasonable risk to
their son and intended to expose him to that risk without
regard for the consequences when (1) the boy returned to the
pool after entering the locker room area and (2) earlier in the
day when the aide allowed the boy to go to the pool, did not
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
HERRERA V. LAUSD 3
enter the pool to watch him, and lost sight of him for at least
a few minutes. The panel held that these facts, viewed in the
light most favorable to plaintiffs, did not constitute
deliberate indifference under the subjective test.
The panel addressed additional claims in an
accompanying memorandum disposition.
COUNSEL
Holly N. Boyer (argued) and Kathleen J. Becket, Esner
Chang & Boyer, Pasadena, California; Michael S. Carrillo
and Luis A. Carrillo, Carrillo Law Firm LLP, South
Pasadena, California; for Plaintiffs-Appellants.
Joseph R. Zamora (argued), Law Offices of Joseph R.
Zamora, Santa Monica, California; Rudulfo F. Ruiz,
Vanderford & Ruiz LLP, Pasadena, California; for
Defendants-Appellees.
OPINION
R. NELSON, Circuit Judge:
Erick Ortiz, an autistic high school student, drowned
while on a field trip in June 2014. The district court granted
summary judgment to the school defendants on the parents’
§ 1983 claim for deprivation of familial relationship.
Because there is no dispute that the school aide was unaware
that Erick was in the pool area when he drowned, the school
defendants cannot be liable under our subjective test for the
4 HERRERA V. LAUSD
state-created danger exception. We therefore affirm the
district court.
I
On a sunny summer day, young Erick and his tenth-grade
classmates attended an end-of-year party at the Atlantic
Avenue Park. In the afternoon, Erick told school aide Lopez
that he was going to the park’s swimming pool, which was
monitored by three lifeguards. Lopez did not enter the pool
area himself but watched Erick from a designated
observation area, as required by pool rules. 1 According to
Plaintiffs, Lopez knew that Erick had asthma and could not
swim.
Lopez generally watched Erick while he was in the
swimming pool, although the parties contest his
attentiveness. It is undisputed, however, that Lopez saw
Erick “exit[] the shallow end of the pool” and enter the
locker room area. He then left the observation deck to wait
for Erick at the locker room exit. Unbeknownst to Lopez,
Erick did not change and instead returned to the pool. Five
minutes later, Lopez began to search for Erick. When he
checked the pool, he found lifeguards trying unsuccessfully
to resuscitate Erick, who had drowned. The summer day had
ended in tragedy.
Erick’s parents sued Lopez, the school district, and other
employees on state law claims for negligence and wrongful
death and a federal § 1983 claim for deprivation of familial
relationship. The district court granted summary judgment
to Defendants on all claims. We address Plaintiffs’ § 1983
1
Despite the rules, another individual aide did enter the pool area to
observe another student.
HERRERA V. LAUSD 5
claim in this opinion and their negligence and wrongful
death claims in an accompanying memorandum disposition.
II
A district court’s grant of summary judgment is reviewed
de novo. Dees v. Cnty. of San Diego, 960 F.3d 1145, 1151
(9th Cir. 2020). We “must view the evidence in the light
most favorable to the nonmoving party . . . and draw all
reasonable inferences in that party’s favor.” Id. (quoting
E.E.O.C. v. Go Daddy Software, Inc., 581 F.3d 951, 961 (9th
Cir. 2009)).
III
To recover damages under 42 U.S.C. § 1983, a plaintiff
must prove that the defendant deprived him of a
“constitutional right while acting under color of state law.”
Tatum v. City & Cnty. of San Francisco, 441 F.3d 1090,
1094 (9th Cir. 2006). The Fourteenth Amendment’s Due
Process Clause generally does not provide an affirmative
right to government aid. DeShaney v. Winnebago Cnty.
Dep’t of Soc. Servs., 489 U.S. 189, 195–96 (1989). A state’s
failure to protect, however, may give rise to a § 1983 claim
under the state-created danger exception “when the state
affirmatively places the plaintiff in danger by acting with
‘deliberate indifference’ to a ‘known or obvious danger.’”
Patel v. Kent Sch. Dist., 648 F.3d 965, 971–72 (9th Cir.
2011) (quoting L.W. v. Grubbs, 92 F.3d 894, 900 (9th Cir.
1996)).
For a defendant to act with deliberate indifference, he
must “recognize[] the unreasonable risk and actually
intend[] to expose the plaintiff to such risks without regard
to the consequences to the plaintiff.” Grubbs, 92 F.3d at 899
(citation omitted). Ultimately, a state actor needs to “know[]
6 HERRERA V. LAUSD
that something is going to happen but ignore[] the risk and
expose[] [the plaintiff] to it.” Id. at 900.
In Castro v. County of Los Angeles, 833 F.3d 1060 (9th
Cir. 2016) (en banc), we departed from the deliberate
indifference standard we had established in Patel. Relying
on the Supreme Court’s analysis of an excessive force claim
in Kingsley v. Hendrickson, 576 U.S. 389, 395 (2015), we
held that a pretrial detainee can state a due process violation
for a government official’s failure to act by showing
(1) [t]he defendant made an intentional
decision with respect to the conditions under
which the plaintiff was confined; (2) [t]hose
conditions put the plaintiff at substantial risk
of suffering serious harm; (3) [t]he defendant
did not take reasonable available measures to
abate that risk, 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; and (4) [b]y
not taking such measures, the defendant
caused the plaintiff’s injuries.
Castro, 833 F.3d at 1071. The deliberate indifference
inquiry in this context is set out in the third prong: the
objective determination that “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. Later cases have applied the objective
standard in excessive force and detention cases. But we have
continued to apply the subjective standard in all state-created
danger claims and in non-detainee failure-to-protect claims
like the one presented here.
HERRERA V. LAUSD 7
A
Before Castro v. County of Los Angeles, 833 F.3d 1060
(9th Cir. 2016) (en banc), we evaluated § 1983 claims under
the single “deliberate indifference” standard articulated in
Clouthier v. County of Contra Costa, 591 F.3d 1232, 1243–
44 (9th Cir. 2010), overruled by 833 F.3d at 1070. The
Clouthier standard incorporated Farmer’s subjective test,
under which “the official must both be aware of facts from
which the inference could be drawn that a substantial risk of
serious harm exists, and he must also draw the inference.”
591 F.3d at 1242 (quoting Farmer v. Brennan, 511 U.S. 825,
837 (1994)). “[A]n official’s failure to alleviate a significant
risk that he should have perceived but did not” could not
support liability under that subjective test. Id. (quoting
Farmer, 511 U.S. at 838).
Then came Kingsley, in which the Supreme Court held
that a pretrial detainee’s excessive force claim could be
proven by showing that the officers’ use of force was
objectively unreasonable. 576 U.S. at 395–97. The Court in
Kingsley explained that an excessive force claim raises two
questions about the defendant’s state of mind: the first with
respect to his intent to “bring[] about certain physical
consequences,” and the second regarding “whether his use
of force was ‘excessive.’” Id. at 395. The objective standard
applied only to the latter; i.e., whether the use of force was
excessive. Id. at 396–97. The Court gave three justifications
for using an objective standard. First, it noted that plaintiffs
can succeed on due process claims with only objective
evidence that the challenged use of force was unreasonable.
Id. at 398–99. Second, it found the objective standard
workable. Id. at 399. And third, it concluded that the
objective standard adequately protected officers acting in
good faith. Id. at 399–400.
8 HERRERA V. LAUSD
B
Following Kingsley, we overruled 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.” Castro, 833 F.3d at
1070. In Castro, we explained that, as to a defendant’s
mental state, detainee failure-to-protect claims require us to
consider whether the defendant (1) “made an intentional
decision with respect to the conditions under which the
plaintiff was confined” and (2) “did not take reasonable
available measures to abate that risk.” Id. at 1071. The
objective standard applied only to analyzing whether the
defendant’s actions were reasonable. Id. We thus continued
to require a pretrial detainee’s failure-to-act claim to
establish that the state defendant made an intentional
decision regarding conditions of confinement. The objective
standard applied only to the deliberate indifference prong:
whether the defendant’s decision to bring about (or allow)
those conditions was objectively unreasonable in light of the
risk to the pretrial detainee.
To be sure, the failure-to-protect claim in Castro differed
from the excessive force claim in Kingsley in one important
aspect: excessive force claims, unlike failure-to-protect
claims, require an affirmative act. Id. at 1067. But we
ultimately concluded that there were “significant reasons” to
extend the objective standard to detainee failure-to-protect
claims. Id. at 1067–70. Those reasons included the lack of
a state-of-mind requirement in § 1983, the common federal
right and nature of harm involved, the claims’ shared basis
in the Fourteenth Amendment Due Process Clause, and
HERRERA V. LAUSD 9
Kingsley’s broad reference to “challenged governmental
action” (rather than only “force”). Id. at 1069–70.
We have since held that Castro’s rule applies to at least
two other types of due process claims in the detention
context: medical-care claims, see Gordon v. County of
Orange, 888 F.3d 1118, 1124–25 (9th Cir. 2018), and civil
immigration detainee failure-to-protect claims under the
Fifth Amendment, see Roman v. Wolf, 977 F.3d 935, 943
(9th Cir. 2020). In Gordon, we echoed Castro’s “significant
reasons” for applying the objective standard. 888 F.3d at
1124. We also noted that both the Supreme Court and our
court have treated medical-care claims “substantially the
same as other conditions of confinement violations.” Id.
And in Roman, we recognized the government’s
constitutional duty “to provide conditions of reasonable
health and safety to people in its custody.” 977 F.3d at 943
(citing DeShaney, 489 U.S. at 199–200). We cited Castro
and Gordon to apply the objective standard to analyze
whether the defendant’s actions were reasonable. Id.
C
Outside the detention context, we have also applied the
objective standard to excessive force claims. See, e.g.,
Cortesluna v. Leon, 979 F.3d 645, 651–52 (9th Cir. 2020)
(applying objective standard without discussion). But for
failure-to-act claims brought by non-detainees, we have
declined to decide whether Castro applies, see Dent v.
Sessions, 900 F.3d 1075, 1083 (9th Cir. 2018), and continued
to apply a purely subjective test for deliberate indifference,
see, e.g., Martinez v. City of Clovis, 943 F.3d 1260, 1274
(9th Cir. 2019) (officers’ failure to protect domestic abuse
victim); Pauluk v. Savage, 836 F.3d 1117, 1125 (9th Cir.
2016) (employee’s exposure to dangerous mold). Because
Erick was not detained at the time of his death and his
10 HERRERA V. LAUSD
parents’ § 1983 claim arises out of Lopez’s alleged failure to
protect their son, their claim is a non-detainee failure-to-
protect claim. We therefore apply a purely subjective
standard, consistent with our precedent, requiring the
plaintiff to show that the state actor recognized an
unreasonable risk and actually intended to expose the
plaintiff to such risk. Martinez, 943 F.3d at 1274.
Two justifications could be raised in favor or applying a
purely subjective standard in failure-to-protect claims
brought by non-detained plaintiffs, but neither is persuasive.
First, failure-to-protect claims do not include the kind of
affirmative action involved in an excessive force claim. But
this is also the case for detainee failure-to-protect claims, to
which we apply the objective standard. See Castro, 833 F.3d
at 1069. Second, the government does not have an
obligation to provide food, medical care, and safety to those
not in its custody. Even so, Castro’s “significant reasons”
to extend the objective standard apply regardless of that
obligation. See id.
Absent our precedent in Dent, Martinez, and Pauluk, we
may have been inclined to interpret Kingsley and Castro to
require Plaintiffs to show (1) that Lopez made an intentional
decision to allow Erick to be exposed to the risk posed by
the pool without Lopez’s supervision, and (2) it was
objectively unreasonable to expose Erick to that risk. This
formulation of the failure-to-protect test would mirror the
logic of Kingsley and Castro, which looks to whether the
defendant intended the physical consequences of his actions
and applies the objective deliberate indifference standard
only to evaluate whether the action taken, considering what
was known to the defendant at the time, was reasonable. See
Kinglsey, 576 U.S. 395–96; Castro, 833 F.3d at 1070. But
because, post-Kingsley and post-Castro, we have continued
HERRERA V. LAUSD 11
to apply a purely subjective deliberate indifference test to
non-detainee failure-to-protect claims, we also do so here.
See Dent, 900 F.3d at 1083; Martinez, 943 F.3d at1274;
Pauluk, 836 F.3d at 1125.
IV
According to Plaintiffs, the evidence when viewed in
their favor could lead a reasonable juror to conclude that
Lopez was deliberately indifferent because he recognized an
unreasonable risk to Erick and intended to expose him to that
risk without regard for the consequences. They contend that
Lopez was deliberately indifferent (1) when Erick returned
to the pool after entering the locker room area and (2) earlier
in the day when Lopez allowed Erick to go to the pool, did
not enter the pool area to watch Erick, and lost sight of Erick
for at least a few minutes. But these facts, when taken in the
light most favorable to Plaintiffs, do not constitute deliberate
indifference under our subjective test.
A
Concerning Erick’s return to the swimming pool, the
district court held that there was no genuine dispute
regarding the fact that “Lopez was not aware that there was
any immediate danger in losing sight of [Erick] because he
thought he was in the locker room changing,” and that even
if Lopez did not supervise Erick as closely as he could have,
Lopez “did not abandon [Erick] to an unattended pool: three
life guards were present.” Herrera v. Los Angeles Unified
Sch. Dist., No. SACV1700069JVSKESX, 2018 WL
3816741, at *9 (C.D. Cal. July 3, 2018). The court therefore
held that there was no genuine dispute as to any material fact
regarding whether Lopez acted with deliberate indifference.
12 HERRERA V. LAUSD
In granting Lopez’s motion for summary judgment, the
district court rightly relied on our decision in Patel. In that
case, a disabled student’s mother discovered that her
daughter was exchanging graphic sexual emails with male
students; in response, the school created an IEP that placed
her in a “self-contained classroom” with a single special-
education teacher. 648 F.3d at 968–69.
To foster the student’s development, the teacher allowed
the student to visit the restroom on her own while monitoring
her time in the restroom and listening for any noises inside
the restroom. Id. at 969. Despite these precautions, the
student had sex with another student on several occasions.
Id. at 969–70. The student’s mother alleged that the school
violated her daughter’s rights under the Due Process Clause
by failing to protect her. Id. at 968.
We affirmed summary judgment for the defendants
because the teacher “did not know about any immediate
risk.” Id. at 975. Moreover, the teacher “was fairly active
in protecting” the student. Id. at 976. For instance, “[s]he
spoke separately with the two students about their hugging
in the hallway,” and “rushed out of her classroom to prevent
an incident between them as soon as she realized they were
both gone at the same time.” Id. We noted that “[a]t worst,
[the teacher] committed a lapse in judgment.” Id.
As in Patel, there is no genuine dispute that Lopez was
unaware of any immediate danger to Erick because he
thought Erick was in the locker room. And Plaintiffs have
raised no genuine dispute as to the fact that even if Lopez
did not supervise Erick as closely as he could have, Lopez
did not entirely abandon Erick to the risks of the pool; three
lifeguards were also generally responsible for student safety.
HERRERA V. LAUSD 13
Plaintiffs provide no evidence that Lopez knew of an
immediate threat to Erick after he watched him enter the
locker room area. Even assuming Lopez knew that Erick
had asthma and could not swim, and lost sight of Erick while
he was in the pool earlier that afternoon, the parties agree
that Lopez saw Erick enter the locker room area. Like the
teacher in Patel, Lopez waited outside the locker room to
protect Erick’s privacy and foster his independence. It was
during that time, when Lopez could not have subjectively
expected any immediate danger, that Erick drowned.
Under our deliberate indifference analysis, Plaintiffs
must proffer facts suggesting that Lopez subjectively
recognized the relevant risk that Erick could drown while in
the pool area. See supra Part III.C. Plaintiffs failed to do so:
Lopez had no “actual knowledge or willful blindness of
impending harm,” Grubbs, 92 F.3d at 900 (cleaned up),
because he believed that Erick was still in the locker room.
He was subjectively unaware that Erick was exposed to the
dangers of the pool and therefore cannot be liable for his
death.
Plaintiffs contend that a jury could simply “disbelieve”
Lopez’s testimony that he didn’t know Erick had returned to
the pool. But they provide no evidence that Lopez should be
disbelieved, so there is no genuine dispute of fact on that
point. Instead, they reiterate that Lopez did not go inside the
enclosed pool, as another aide did, and lost track of Erick
earlier in the day. None of these facts goes to Lopez’s
awareness of Erick’s location at the time of his death.
Because there is no evidence that Lopez deliberately left
Erick in danger, there is no genuine issue of material fact on
that point.
B
14 HERRERA V. LAUSD
Plaintiffs also argue that, aside from not watching Erick
while he was in the locker room, Lopez’s earlier decisions
(e.g., not to enter the pool area with Erick and losing sight of
Erick earlier in the day) constituted deliberate indifference.
But when considered in context, no reasonable juror could
find that Lopez was deliberately indifferent to Erick’s safety.
This is particularly true given that there were three lifeguards
at the pool; even if Lopez were at times inattentive to Erick,
no reasonable juror could find that Lopez intended to expose
Erick to an unreasonable risk, given that Erick was never
completely unsupervised.
In evaluating deliberate indifference, circumstances are
vital in contextualizing a defendant’s decisions. Three cases
illustrate the importance of context. In Hernandez v. City of
San Jose, 897 F.3d 1125, 1129 (9th Cir. 2018), we held that
deliberate indifference had been sufficiently alleged against
police defendants who supervised a political rally where
attendees were injured. As in similar rallies in other cities, a
crowd of protesters waited outside the convention halls. Id.
Despite knowing about violence that had broken out at the
convention center earlier that evening and at similar events,
police directed rally attendees into the crowd of protesters.
Id. at 1130. Then, when attendees and protestors clashed,
police avoided intervening in fear of sparking a riot. Id. at
1129.
In Munger v. City of Glasgow Police Department,
227 F.3d 1082, 1084 (9th Cir. 2000), police were called to
confront a belligerent patron at a local bar. The man was
intoxicated and wore only jeans and a t-shirt. Id. Even so,
police ejected him from the bar into the subfreezing
temperatures outside, and told him not to reenter the bar or
drive. Id. Although police later went looking for him, the
man died of hypothermia. Id. at 1085.
HERRERA V. LAUSD 15
And in Kennedy v. City of Ridgefield, 439 F.3d 1055 (9th
Cir. 2006), the police promised to patrol a neighborhood
after a family informed them that their neighbor’s son had
abused their daughter, lit a cat on fire, and broke into his
girlfriend’s house. Id. at 1057–58, 1063. The police did not
begin patrols, however, and the neighbor broke into the
family’s house and killed two of the family members. Id. at
1058. As in Hernandez and Munger, the police left plaintiffs
completely unprotected against a known risk. We held in
each of these cases that, based on their subjective
knowledge, the police could be deliberately indifferent to the
risk of harm.
Plaintiffs emphasize that, like the plaintiffs in those
cases, “the danger [to Erick] was obvious and [Lopez] placed
the decedent in a highly vulnerable condition.” To be sure,
as we explained in Munger, we “examine whether the
[defendant] left the person in a situation that was more
dangerous than the one in which they found him.” 227 F.3d
at 1086. And in the case at hand, allowing Erick to enter the
pool area arguably placed him in a more dangerous position
than if he had not been allowed to swim.
But allowing Erick to enter a “more dangerous position”
does not end our deliberate indifference analysis. A crucial
premise of our findings of alleged deliberate indifference in
Hernandez, Munger, and Kennedy was that plaintiffs were
left without protection. In Hernandez, the police not only
led plaintiffs directly into a dangerous situation, but also
allegedly “witnessed the violence firsthand, or were at least
informed of it, but . . . did nothing.” 897 F.3d at 1130. And
in Munger, “the last that anyone saw of [plaintiff]” was him
“heading toward an abandoned railway yard.” 227 F.3d
at 1084–85. The police, apparently realizing the potential
threat, later searched for plaintiff in vain. Id. at 1085. In
16 HERRERA V. LAUSD
Kennedy, the police knew of the danger and left the
neighborhood totally without protection. 439 F.3d at 1058.
But in the case at hand, the undisputed evidence
establishes that Erick was never left completely without
protection. Lopez observed Erick while he was in the pool,
and three lifeguards also monitored the area. Deliberate
indifference requires more: with at least four individuals
tasked with supervising Erick while in the pool, Lopez
neither abandoned Erick nor left him completely without
protection.
V
Lopez was unaware that Erick had reentered the pool
area at the time of Erick’s drowning; he could not have been
aware of the danger to Erick, and he did not otherwise act
with deliberate indifference under our subjective standard.
The district court therefore properly granted summary
judgment to Defendants.
AFFIRMED.