Lecia L. Shorter v. Leroy D. Baca

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LECIA L. S HORTER ,
Plaintiff-Appellant,
v.
LEROY D. BACA ; G LORIA M OLINA ;
M ARK R IDLEY-T HOMAS ; DON KNABE;
M ICHAEL D. ANTONOVICH ; AVALOS ,
Deputy Sheriff; ORTIZ, Deputy
Sheriff; County of Los Angeles;
DOES , 1 through 10 inclusive; ZEV
YAROSLAVSKY ,
Defendants-Appellees.
No. 16-56051
D.C. No.
2:12-cv-07337-
JCG
OPINION
Appeal from the United States District Court
for the Central District of California
Jay Gandhi, Magistrate Judge, Presiding
Argued and Submitted December 8, 2017
Pasadena, California
Filed July 16, 2018

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2 S HORTER V. BACA
Before: Kim McLane Wardlaw and Ronald M. Gould,
Circuit Judges, and Yvonne Gonzalez Rogers,*
District Judge.
Opinion by Judge Wardlaw
SUMMARY**
Prisoner Civil Rights
The panel vacated a partial grant of summary judgment,
reversed the denial of a new trial, and remanded for further
proceedings in a 42 U.S.C. § 1983 action brought by a
pretrial detainee who alleged inadequate medical care,
unconstitutional conditions of confinement, and humiliating
and invasive strip searches.
The panel first noted that plaintiff presented
uncontroverted evidence at trial that the County of Los
Angeles, tasked with supervising high-observation housing
for mentally ill women, has a policy of shackling the women
to steel tables in the middle of an indoor recreation room as
their sole form of recreation, and that jail officials routinely
left noncompliant detainees naked and chained to their cell
doors, for hours at a time without access to food, water, or a
toilet.
* The Honorable Yvonne Gonzalez Rogers, United States District
Judge for the Northern District of California, 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.

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S HORTER V. BACA 3
The panel held that given the evidence, the district court
erred by instructing the jury to give deference to jail officials
in deciding plaintiff’s conditions of confinement and
excessive search claims. The panel noted that the only
justification that the County offered at trial for severely
restricting plaintiff’s conditions of confinement was a
concern about overcrowding and understaffing in the
facility. The panel held that if plaintiffs in § 1983 actions
demonstrate that their conditions of confinement have been
restricted solely because of overcrowding or understaffing,
a deference instruction ordinarily should not be given.
Rather, a deference instruction may be given only when
there is evidence that the treatment to which the plaintiff
objects was provided pursuant to a security-based policy.
Similarly, if plaintiffs demonstrate that they have been
subjected to search procedures that are an unnecessary,
unjustified, or an exaggerated response to concerns about jail
safety, deference to jail officials is unwarranted.
Addressing plaintiff’s misclassification claim, the panel
held that the magistrate judge abused his discretion by
denying plaintiff’s motion for a new trial on her claim that
she was placed in a more restrictive unit without sufficient
due process.
Finally, the panel vacated the district court’s summary
judgment as to plaintiff’s inadequate medical care claim, and
remanded for further proceedings in light of the recent
opinion in Gordon v. County of Orange, 888 F.3d 1118 (9th
Cir. 2018). The panel noted that without the benefit of
Gordon, the district court erroneously evaluated plaintiff’s
inadequate medical care claim under the Eighth
Amendment’s subjective deliberate indifference standard
rather than the appropriate objective standard.

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4 S HORTER V. BACA
COUNSEL
William F. Abrams (argued) and David H. Kwasniewski,
Steptoe & Johnson LLP, San Francisco, California, for
Plaintiff-Appellant.
Rina M. Mathevosian (argued) and Henry Patrick Nelson,
Nelson & Fulton, Los Angeles, California, for Defendants-
Appellees.
OPINION
WARDLAW, Circuit Judge:
Lecia L. Shorter appeals the district court’s partial grant
of summary judgment in favor of the County of Los Angeles,
Leroy Baca, Jacqueline Ortiz, and Alejandra Avalos (the
County or County Defendants) on her 42 U.S.C. § 1983
inadequate medical care claim, and the denial of Shorter’s
motion for a new trial on her § 1983 claim based on her
classification as mentally ill, her conditions of confinement,
and the strip searches to which she was subjected as a pretrial
detainee at the Century Regional Detention Facility (CRDF)
in Lynwood, California.
At trial, Shorter presented uncontroverted evidence that
the County, tasked with supervising high-observation
housing for mentally ill women, has a policy of shackling the
women to steel tables in the middle of an indoor recreation
room as their sole form of recreation, and that jail officials
routinely leave noncompliant detainees naked and chained
to their cell doors, for hours at a time without access to food,
water, or a toilet. Shorter also presented the jail’s daily logs
during her pretrial detention, which show that Shorter was
deprived of meals, showers, and recreation due, in part, to

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S HORTER V. BACA 5
overcrowding and understaffing at CRDF. Shorter
challenges the instructions given to the jury, which directed
it to defer to the jail officials who enacted and carried out
these policies and practices.
We have jurisdiction under 28 U.S.C. § 1291, and we
vacate the partial grant of summary judgment, reverse the
denial of a new trial, and remand for further proceedings.1
I.
Shorter was a pretrial detainee at the County’s CRDF, an
all-women’s jail in Lynwood, California, from November
15, 2011, to December 17, 2011. On the day she arrived at
the jail, a social worker diagnosed Shorter with an
unspecified mood disorder and placed Shorter in Module
2300, the jail’s high-observation housing (HOH) unit for
women who are mentally ill. HOH inmates wear yellow
shirts and blue pants, and are subject to more restrictive
conditions than inmates in other parts of CRDF. HOH
inmates, for example, live in single-person cells and are
monitored by jail staff every fifteen minutes to prevent
suicide and other harmful behavior. HOH inmates are
handcuffed whenever they leave their cells, with the
exception of taking showers. In 2014, the U.S. Department
of Justice (DOJ) commenced an investigation into the
County jails’ treatment of mentally ill inmates, and
determined that the excessive use of shackles on the female
inmates in HOH units was counterproductive to women’s
1 Shorter’s motion to file supplemental excerpts of record (ECF No.
17) is GRANTED. Baca et al.’s motion to strike Shorter’s excerpts and
opening brief (ECF No. 20) is DENIED.

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6 S HORTER V. BACA
physical and mental health, and led to violations of the
detainees’ constitutional rights.
After her release from CRDF, Shorter filed this
42 U.S.C. § 1983 action, pro se and in forma pauperis.2 She
challenges several conditions of her confinement in HOH
and the procedures that the County used to classify her as
mentally ill.
Shorter contends that the County’s policy unreasonably
allowed social workers to rely on a fifteen-question
screening test, a cursory review of the inmate’s record, and
a brief interview, to make a practically unreviewable
determination about how inmates are housed at CRDF.
Shorter tried to appeal her mental health classification when
she arrived at HOH, but jail officials did not provide her with
the grievance forms that she could use to appeal her
classification.
Shorter also claims that she was routinely denied
recreation, meals, and showers as a pretrial detainee because
of understaffing and overcrowding at CRDF. For recreation,
deputies move the women to an indoor day room, where they
leave the women with one arm restrained by a handcuff
extended from a chain secured to the floor. The women sit
individually at indoor steel tables and benches. Some watch
television and others participate in group activities. Jail
policy requires the women to remain handcuffed to the chain
next to the table at all times, and HOH detainees do not have
access to a gym or an outdoor recreation area. Shorter
2 Shorter retained Steptoe & Johnson LLP as pro bono counsel
through the Central District of California’s Pro Bono Civil Rights Panel
on October 6, 2014, after she successfully argued a number of discovery
motions on her own behalf.

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S HORTER V. BACA 7
participated in two and half hours of this type of recreation
during her thirty-two days in the jail. The jail’s daily logs
also show that on seven days of her confinement Shorter
received less than three meals per day. And the same logs
show that Shorter showered only three times, going six,
seven, or eight days during her confinement without a
shower, and instead relying on feminine pads for personal
sanitation.
Shorter also challenges the jail’s visual body cavity
search policy, which all inmates are subjected to upon return
from trips to court, and the jail’s pervasive practice of
leaving noncompliant detainees shackled to their cell doors.
The search process begins with the detainee inside her cell,
with both hands in handcuffs. The detainee then places her
hands outside the chute of her cell, where the deputy, on the
other side of the door, unlocks one of the handcuffs. Then,
with one hand still handcuffed and attached to a chain
outside of the door, the detainee removes her pants, socks,
and shoes, as well as her shirt and bra, which remain attached
to the chain extending from her handcuff. The detainee must
then lift her breasts, lower her underwear, bend over, open
her vagina and rectum, and cough. The County’s official
policy mandates that inmates shall not be required to
“remain in any search position for more time than is
reasonable and necessary to complete the search.”
In practice, however, where the detainee failed to comply
with the search procedures, it was common for deputies to
leave the detainee chained to her cell door for hours at a time.
Deputies Avalos and Ortiz testified that they were trained to
leave noncompliant detainees who did not follow search
procedures chained to their cell doors. Shorter testified that,
on three occasions, deputies Avalos and Ortiz left her
chained to her cell door for three to six hours, without access

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8 S HORTER V. BACA
to food, water, or clothing. On one occasion, the deputies
did not leave enough slack on Shorter’s chain to allow her to
reach the bathroom in her cell. Shorter testified that there
was only enough slack on the chain to allow her to sit on the
floor and hold her hand up in the air. Each time the deputies
chained Shorter to her cell door, Shorter freed herself by
manipulating her hand out of the restraints or by convincing
another deputy to release the restraints. Shorter said that
these incidents made her feel like “an animal on display.”3
Lastly, Shorter maintains that the County provided her
with inadequate medical care. Shorter has a blood condition
that requires her to monitor her blood’s thickness daily, and
to take Coumadin, a prescription drug that prevents the blood
from thickening too much. Left untreated, the condition may
cause blood clots, heart attack, stroke, or death. Jail officials
tested Shorter’s blood once during her thirty-two day stay.
At the time of the test, officials determined that Shorter’s
blood was “dangerously thin,” and they discontinued
Shorter’s Coumadin prescription. Shorter was not tested
again until after she left CRDF; at the time, doctors deemed
her blood “dangerously thick.” Because jail officials did not
routinely monitor her blood, Shorter worried that she was
vulnerable to health risks throughout her pretrial detention.
3 The jail did not develop an official policy for dealing with
“uncooperative” inmates until 2012, and some testimony suggests that
the jail no longer permits deputies to chain noncompliant inmates to their
cell doors. The jail’s “Recalcitrant Inmate Policy” now instructs
deputies to isolate the inmate, provide access to a toilet, and to notify a
watch commander, who would document the incident, if the inmate fails
to comply with procedures after an hour. The jail has also started using
a body scanner that renders the visual cavity search procedures
unnecessary.

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S HORTER V. BACA 9
The County Defendants moved for summary judgment
on all of Shorter’s claims. They argued that Shorter could
not establish policies, customs, or practices sufficient to
establish a claim against the County or Sheriff Baca, in his
official capacity, under Monell v. Department of Social
Services, 436 U.S. 658, 691 (1978). They further maintained
that Shorter’s evidence did not raise a genuine dispute of fact
that the County Defendants had violated Shorter’s
constitutional rights. Specifically, they argued that Shorter’s
conditions of confinement claims failed because there was
no evidence that Shorter was deprived of recreation, food, or
sanitation; that her inadequate medical care claim failed
because Shorter could not show deliberate indifference to
her medical needs; and that Shorter’s excessive search claim
failed because Shorter could not show that County officials
used more than de minimis force. County Defendants also
argued that Shorter had no constitutional right regarding her
classification as “mentally ill” or any right to file a jailhouse
grievance. Deputies Avalos and Ortiz moved for summary
judgment on the ground of qualified immunity.
The district court granted partial summary judgment in
favor of the County on Shorter’s inadequate medical care
claim, but it denied summary judgment on the remainder of
the claims. The district court, construing the evidence in the
light most favorable to Shorter, concluded that the deputies
were not entitled to qualified immunity because their search
practices violated law that was clearly established as of
2011—a decision that the deputies do not challenge here.

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10 S HORTER V. BACA
The case then proceeded to a jury trial before a
magistrate judge. The magistrate judge, relying on Ninth
Circuit Model Civil Jury Instructions, instructed the jury to
“give deference to jail officials” in deciding Shorter’s
conditions of confinement and excessive search claims. The
jury returned a verdict in favor of all defendants. Shorter
then moved for a new trial, but the magistrate judge denied
her motion. Shorter timely appeals.
II.
The principal dispute on appeal is whether the magistrate
judge erred by instructing the jury:
In determining whether the defendant(s)
violated the plaintiff’s rights as alleged, you
should give deference to jail officials in the
adoption and execution of policies and
practices that in their judgment are needed to
preserve discipline and to maintain internal
security.
We have come to refer to this instruction as the Norwood
instruction, after our decision in Norwood v. Vance, 591 F.3d
1062 (9th Cir. 2010). The instruction is part of the Ninth
Circuit model instructions for “Convicted Prisoner’s Claim
of Excessive Force,” Ninth Cir. Model Civ. Jury Instr. § 9.26
(2017 ed.), and for “Convicted Prisoner’s Claim re
Conditions of Confinement/Medical Care,” Ninth Cir.
Model Civ. Jury Instr. § 9.27 (2017 ed.).4 Because Shorter
4 Although claims by pretrial detainees arise under the Fourteenth
Amendment and claims by convicted prisoners arise under the Eighth
Amendment, our cases do not distinguish among pretrial and post-
conviction detainees for purposes of the excessive force, conditions of

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S HORTER V. BACA 11
challenges the resulting jury instruction as an incorrect
statement of law, our review is de novo. See Clem v. Lomeli,
566 F.3d 1177, 1180–81 (9th Cir. 2009); see also United
States v. Warren, 984 F.2d 325, 327 n.3 (9th Cir. 1993)
(“Use of a model jury instruction does not preclude a finding
of error.”).
Defendants argue that Shorter failed to preserve her
objection below, so our review should be for plain error. See
Fed. R. Civ. P. 51(d)(2). But the record shows that Shorter
objected to the deference instruction at trial, albeit on a
different ground, and in a motion for new trial. An
“objection need not be formal,” and Shorter’s objection was
“sufficiently specific to bring into focus the precise nature of
the alleged error.” Inv. Serv. Co. v. Allied Equities Corp.,
519 F.2d 508, 510 (9th Cir. 1975); see also Chess v. Dovey,
790 F.3d 961, 970 (9th Cir. 2015) (describing the “pointless
formality” exception to the objection requirement). As the
magistrate judge recounted in his denial of Shorter’s motion
for a new trial, all parties were aware that the
appropriateness of the jury instruction turned on whether the
jail’s recreation and extended search policies were necessary
to preserve discipline and maintain internal security.
Shorter’s constitutional claims “arise[] from the due
process clause of the fourteenth amendment and not from the
eighth amendment prohibition against cruel and unusual
punishment.” Jones v. Johnson, 781 F.2d 769, 771 (9th Cir.
1986) (citing Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979)),
confinement, and medical care deference instructions. See Bull v. City
& Cty. of San Francisco, 595 F.3d 964, 975 (9th Cir. 2015). The
Norwood instruction is also part of the model instructions for “Convicted
Prisoner’s Claim of Failure to Protect,” Ninth Cir. Model Civ. Jury Instr.
§ 9.28.

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12 S HORTER V. BACA
overruled on other grounds by Peralta v. Dillard, 744 F.3d
1076 (9th Cir. 2014) (en banc); see also Gary H. v.
Hegstrom, 831 F.2d 1430, 1432 (9th Cir. 1987) (“[T]he more
protective fourteenth amendment standard applies to
conditions of confinement when detainees . . . have not been
convicted [of a crime.]”). While officials “should be
accorded wide-ranging deference in the adoption and
execution of policies and practices that in their judgment are
needed to preserve internal order and discipline and to
maintain institutional security,” Bell, 441 U.S. at 547, that
deference must be set aside where “the record contains
substantial evidence showing their policies are an
unnecessary or unjustified response to problems of jail
security,” Florence v. Bd. of Chosen Freeholders, 566 U.S.
318, 323 (2012). “[I]n the absence of substantial evidence
in the record to indicate that the officials have exaggerated
their response to these considerations courts should
ordinarily defer to their expert judgment in such matters.”
Block v. Rutherford, 468 U.S. 576, 584–85 (1984) (citation
omitted).
However, our precedent should not be misread to suggest
that jail officials are automatically entitled to deference
instructions in conditions of confinement or excessive force
cases brought by prisoners, or § 1983 actions brought by
former inmates. Cf. Norwood, 591 F.3d at 1067; Chess,
790 F.3d at 972–73; see also Mendiola-Martinez v. Arpaio,
836 F.3d 1239, 1254 (9th Cir. 2016) (citing to Norwood and
Chess for the rule that “in excessive force and conditions of
confinement cases, we instruct juries to defer to prison
officials’ judgments in adopting and executing policies
needed to preserve discipline and maintain security”). We
have long recognized that a jury need not defer to prison
officials where the plaintiff produces substantial evidence
showing that the jail’s policy or practice is an unnecessary,

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S HORTER V. BACA 13
unjustified, or exaggerated response to the need for prison
security.5 See, e.g., Florence, 566 U.S. at 322–23; Brown v.
Plata, 563 U.S. 493, 511 (2011); Whitley v. Albers, 475 U.S.
312, 322 (1986) (stating that deference to prison officials
“does not insulate from review actions taken in bad faith and
for no legitimate purpose”); Spain v. Procunier, 600 F.2d
189, 194 (9th Cir. 1979) (“Mechanical deference to the
findings of state prison officials in the context of the eighth
amendment would reduce that provision to a nullity in
precisely the context where it is most necessary.”). “[I]f a
restriction or condition is not reasonably related to a
legitimate goal—if it is arbitrary and purposeless—a court
permissibly may infer that the purpose of the governmental
action is punishment that may not be constitutionally
inflicted upon detainees qua detainees.” Bell, 441 U.S. at
539.
As currently written, our circuit’s model jury
instructions for conditions of confinement and excessive
force cases, which include a deference to jail officials
instruction, are inconsistent with the model jury instructions
for similar cases in the majority of other circuits with
published pattern instructions, which generally do not
include an additional deference instruction. See, e.g., Third
Cir. Model Civ. Jury Instr. §§ 4.10, 4.11 (2018 ed.); Eighth
Cir. Manual of Model Civ. Jury Instrs. § 4.41 (2017 ed.);
Eleventh Cir. Pattern Civ. Jury Instr. § 5.4 (2018 rev.). In
Chess, we noted that our model jury instructions are “unique
in including the deference language in Eighth Amendment
5 In fact, we have recognized that, when conditions are dire, more
judicial supervision, not less, may be warranted. See Brown v. Plata,
563 U.S. 493, 500 (2011) (describing procedures for appointing a three-
judge panel that has the authority to order prisoners released under
18 U.S.C. § 3626(a)).

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14 S HORTER V. BACA
conditions of confinement cases.” 790 F.3d at 972 n.1; see
also 5 John S. Siffert, Modern Federal Jury Instructions–
Civil ¶ 87.74D (Matthew Bender 2018) (describing jury
instructions for all circuits). And we pointed out that, except
for language in a Fifth Circuit model instruction, see Fifth
Cir. Model Civ. Jury Instr. § 10.7 (2014 ed.), and a model
instruction proposed by a district judge on the First Circuit,
“the deference language does not appear in any other
circuit’s model instructions for prisoner rights’ claims.”
Chess, 790 F.3d at 972 n.1. The Seventh Circuit’s model
instructions split the difference by omitting a deference
instruction for conditions of confinement claims but
including the instruction over the objection of “a significant
minority of [the model jury instruction committee’s]
members” for excessive force claims. Seventh Cir. Model
Jury Instr. §§ 7.15, 7.18 & comm.(f) (2017 ed.).
We take this opportunity to clarify our precedent and
align it with the practices of other circuit courts of appeal.
We first must decide whether the magistrate judge erred in
giving the deference instruction for Shorter’s conditions of
confinement claims, where the only justification that jail
officials offered for curtailing Shorter’s meals, showers, and
recreation was a concern about overcrowding and
understaffing in the facility. We conclude that the deference
instruction should ordinarily not be given in such
circumstances. Rather, we reiterate that the instruction may
be given only when there is evidence that the treatment to
which the plaintiff objects was provided pursuant to a
security-based policy. See Chess, 790 F.3d at 964. That was
not the case here, and the magistrate judge should not have
given the deference instruction as to those claims.
We next decide whether the magistrate judge erred in
giving the deference instruction for Shorter’s excessive

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S HORTER V. BACA 15
search claim, where jail officials concede that there was no
legitimate penological purpose for shackling mentally ill,
virtually unclothed, female pretrial detainees to their cell
doors for hours at a time. We conclude that substantial
record evidence supports Shorter’s argument that this search
practice was an unnecessary, unjustified, and exaggerated
response to jail officials’ need for prison security. We
conclude that the magistrate judge erred in instructing the
jury to give deference to the jail officials on this claim.
A.
Shorter presented substantial evidence at trial showing
that the jail’s practice of chaining female inmates to a table
in the middle of an indoor recreation room and depriving
inmates of food and sanitation was an unnecessary and
unjustified response to the problem of jail security. Among
Shorter’s most compelling evidence was a letter from both
the Chief of the Special Litigation Section of the Civil Rights
Division of the DOJ and the U.S. Attorney for the Central
District of California, André Birotte, Jr.,6 to the Los Angeles
County Counsel, dated June 4, 2014. This letter expressed
the DOJ’s conclusion that the County’s mental health care
practices for the county jails violated pretrial detainees’
Fourteenth Amendment rights. The letter condemned the
County’s practice of chaining detainees for recreation and
concluded that “[t]his approach to prisoner management
may be a reflection of the low level of security staffing
throughout the women’s housing units rather than a
necessary safety-structural requirement for delivering
appropriate assessment and treatment services.” The DOJ
encouraged the jail officials to make determinations about
6 André Birotte, Jr. now serves as a United States District Judge for
the Central District of California.

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16 S HORTER V. BACA
the appropriate level of restraint on “an individualized basis
in accordance with the prisoners’ specific mental health and
safety needs.”
The County admitted in testimony at trial that its policy
denies HOH inmates access to physical exercise or any
outdoor recreation, but it argues, on appeal, that its
restrictive recreation policy is necessary because HOH
inmates are “unpredictable,” “violent,” and “impulsive.”
The County did not offer any other reason or immediate need
to so restrict the inmates’ movement. The County also
suggested that Shorter did not participate in recreation
because she did not want to, but the County never explained
why it needed to chain detainees at all times outside their
cells, and particularly, during recreation. The only
explanation offered came from deputy Ortiz, who testified
that she, personally, would not permit detainees out of their
cells if the facility was understaffed because she worried that
recreation time or showers might escalate into violence,
suggesting that the reason for the policy is not a legitimate
penological one, but one based on overcrowding and
understaffing.
A deference instruction was not warranted on these facts.
Jail officials have a duty to ensure that detainees are
provided adequate shelter, food, clothing, sanitation,
medical care, and personal safety. Johnson v. Lewis,
217 F.3d 726, 731 (9th Cir. 2000). And, we have confirmed,
time and time again, that the Constitution requires jail
officials to provide outdoor recreation opportunities, or
otherwise meaningful recreation, to prison inmates. In
Pierce v. County of Orange, for example, we concluded that
inmates in administrative segregation, placed in segregation
because of “violent tendencies that have been deemed a
threat to the jail’s staff or to other inmates,” are nonetheless

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S HORTER V. BACA 17
constitutionally entitled to at least two hours per week of
exercise. 526 F.3d 1190, 1208 (9th Cir. 2008). Even earlier,
in Spain v. Procunier, we concluded that violent inmates in
administrative segregation have a “right of outdoor exercise
one hour per day, five days a week unless inclement weather,
unusual circumstances, or disciplinary needs made that
impossible.” 600 F.2d at 199. At the time, we opined that
there is “substantial agreement among the cases in this area
that some form of regular outdoor exercise is extremely
important to the psychological and physical well being of the
inmates.” Id. (collecting cases); see also Thomas v. Ponder,
611 F.3d 1144, 1152 (9th Cir. 2010) (opining that “case law
uniformly stresses the vital importance of exercise for
prisoners”); Allen v. Sakai, 48 F.3d 1082, 1088 (9th Cir.
1994), as amended (Nov. 1994); Toussaint v. Yockey,
722 F.2d 1490, 1492–93 (9th Cir. 1984).
Although we have acknowledged that “logistical
problems,” such as inadequate staffing and limited
recreational facilities, may make it difficult for jail officials
to provide adequate exercise to detainees, we have never
condoned the wholesale, routine deprivation of meals and
showers, or meaningful recreation activities, like those
Shorter described, and the County confirmed, at trial. See
Allen, 48 F.3d at 1088. “Logistical problems,” without
more, cannot justify serious civil rights violations such as
“the deprivation of a basic human need.” Id. at 1087. In
Allen v. Sakai, for example, we recognized “that the practical
difficulties that arise in administering a prison facility from
time to time might justify an occasional and brief deprivation
of an inmate’s opportunity to exercise outside,” but we did
not accept the defendants’ “excuse” that “scheduling an
inmate’s time in the exercise yard was difficult because, for
security reasons, inmates had to be accompanied to the
recreation yard by a guard and only one inmate could use the

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18 S HORTER V. BACA
recreation yard at a time.” Id. at 1088. And, in Spain, we
concluded that “[t]he cost or inconvenience of providing
adequate facilities is not a defense” to the imposition of
punishment in violation of the Fourteenth Amendment. 600
F.2d at 200.
Norwood, where a deference instruction was warranted,
is readily distinguishable. There, officials at a maximum
security prison decided to “lockdown” the facility four times
over a two-year period to respond to inmate-on-inmate
violence and a series of particularly violent attacks against
correctional officers. Norwood, 591 F.3d at 1065. The
lockdown meant that there was no outdoor recreation for
inmates. Id. at 1065–66. Each time officials locked down
the prison, however, the deprivation of recreation was time-
limited, lasting from two to four and half months, and in
response to specific incidents of threats, attempted batteries,
and attempted murders of inmates and staff. Id.
Unlike the prison officials in Norwood, who enacted the
policy due to an unusual and highly volatile set of security-
related concerns, id., the County offers no specific reason for
its shackling recreation policy or its practice of curtailing
meals and showers when the facility is understaffed. Nor
does the County explain why it could not make the shackling
determination on an individualized basis, as suggested by the
DOJ in its 2014 letter, or why it believed that such
restrictions were necessary at all times to protect inmate and
officer safety. Cf. Doe v. Kelly, 878 F.3d 710, 720 (9th Cir.
2017) (instructing jail officials to tailor conditions to
particular features of a detention facility and the length of
detention). The policy was not adopted in response to an
emergency or a dangerous situation that required jail
officials to use their expertise to prevent further violence.
And, the County cannot justify its recreation policy by a

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S HORTER V. BACA 19
general statement that mentally ill detainees are
“unpredictable” or “violent” and “impulsive,” because many
inmates, including those housed in administrative
segregation as in Pierce and Spain, display antisocial
behaviors and yet, we have concluded that all inmates are
entitled to an individualized evaluation and recreation,
barring inclement weather, unusual circumstances, or severe
and imminent security risks. See Spain, 600 F.2d at 199.
The only justification that the County offered at trial for
severely restricting Shorter’s conditions of confinement was
a concern about overcrowding and understaffing in the
facility. We conclude that the deference instruction should
ordinarily not be given when that is the County’s sole
justification. The magistrate judge therefore erred in
instructing the jury to defer to jail officials in deciding
Shorter’s conditions of confinement claims.
B.
Shorter also presented substantial evidence that showed
that the jail’s practice of chaining noncompliant detainees to
their cell doors was an exaggerated response to jail officials’
need for security and was not entitled to deference.
The Supreme Court most recently addressed the practice
of strip searches at jails in Florence v. Board of Chosen
Freeholders, 566 U.S. 318 (2012). Florence instructed
courts to “defer to the judgment of correctional officials”
when the officials conduct “strip searches” of detainees
admitted to the general population of a jail facility. Id. at
322–23. At the Essex County jail, the facility in Florence,
officials required all arriving detainees to pass through a
metal detector and to wait in a group holding cell for a more
thorough search. Id. at 324. When they left the holding cell,
the detainee was instructed to remove his clothing while an

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officer looked for body markings, wounds, and contraband.
Id. The facility required the detainee to lift his genitals, turn
around, and cough in a squatting position as part of the
process. Id. After a mandatory shower, during which the
detainee’s clothing was inspected, officials admitted the
detainee to the general population of the facility. Id. This
search policy applied “regardless of the circumstances of the
arrest, the suspected offense, or the detainee’s behavior,
demeanor, or criminal history.” Id.
In concluding that jail officials were entitled to deference
when they conducted such searches, the Court detailed the
many reasons justifying the search. Id. at 330–34. It
explained that it “may be difficult to identify and treat”
contagious infections, wounds, or other injuries requiring
immediate detention until detainees remove their clothes for
a visual inspection. Id. at 330–31. The Court further
reasoned that a visual inspection may be necessary to
identify and isolate gang members, who often have tattoos
and other signs of gang affiliation on their bodies. Id. at
331–32. And it acknowledged that jails need to detect
contraband concealed by new detainees, pointing to briefs
showing that officers had confronted arrestees concealing
weapons, drugs, and other unauthorized items. Id. at 332.
The Court opined that conducting an effective search may
require a correctional official to require some detainees to
lift their genitals and cough. Id. at 334. But the Court did
not announce a general rule that applied to all searches. Two
of the five Justices in the majority wrote separately to
confirm that, while deference was appropriate on the facts in
Florence, deference may not be appropriate for all searches.
Id. at 340 (Roberts, C.J., concurring) (“The Court is [] wise
to leave open the possibility of exceptions, to ensure that we
‘not embarrass the future.’” (quoting Nw. Airlines, Inc. v.
Minnesota, 322 U.S. 292, 300 (1944))); id. at 341 (Alito, J.,

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S HORTER V. BACA 21
concurring) (“It is important to note, however, that the Court
does not hold that it is always reasonable to conduct a full
strip search of an arrestee whose detention has not been
reviewed by a judicial officer and who could be held in
available facilities apart from the general population.”).
Shorter challenges a search procedure that starts off in
much the same way as the searches in Florence, but ends in
a remarkably more punitive fashion for inmates who, from a
deputy’s perspective, do not comply with the procedures.
The searches that Shorter challenges are distinguishable
from Florence, both in their nature and in the lack of
justification for the procedure. At the time that Shorter was
detained, officials routinely left noncompliant female
inmates shackled to their cell doors for hours, virtually
unclothed, and without access to meals, water, or a toilet.
These additional procedures distinguish what routinely
occurred in the HOH units from what happened in the jails
in Florence. When left shackled, the female inmates were
visible to both the male and female guards on patrol.
Moreover, unlike the search procedures in Florence, which
occurred when detainees were admitted to the jail’s general
population from smaller group holding cells, the search here
occurs any time the detainee returns from court, where the
detainee has been shackled and monitored by prison guards
at all times.
The search procedures here are a humiliating and
extreme invasion of Shorter’s privacy that must be justified
by legitimate penological purposes. See, e.g., Way v. Cty. of
Ventura, 445 F.3d 1157, 1160 (9th Cir. 2006) (“The scope
of the intrusion here is indisputedly a ‘frightening and
humiliating’ invasion, even when conducted ‘with all due
courtesy.’” (quoting Giles v. Ackerman, 746 F.3d 614, 617
(9th Cir. 1984))); Kirkpatrick v. City of Los Angeles,

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22 S HORTER V. BACA
803 F.2d 485, 489–90 (9th Cir. 1986) (“[T]he fact that a strip
search is conducted reasonably, without touching and
outside the view of all persons other than the party
performing the search, does not negate the fact that a strip
search is a significant intrusion on the person searched.”).
But, at trial, jail officials admitted that their practice of
keeping noncompliant detainees chained to their cell doors
wearing only partial underwear did not serve any legitimate
penological purpose.7 The CRDF watch commander
testified that the only reason to chain a detainee to their cell
door without clothing was to “get the clothing” from the
detainee. But once the officer searches the detainee’s
clothes, there was no reason to keep the detainee unclothed
or chained. The watch commander also testified that
keeping an inmate chained to the cell door “shouldn’t
happen.” And a jail expert testified that there was no
“penological practical reason for handcuffing an inmate to
their cell door,” given that the handcuffs were used to protect
the officers from the inmate and the cell door already served
this purpose, and that the practice was “too ripe for potential
abuse.”
That Los Angeles County jails no longer use the search
procedure supports our conclusion that the search procedure
was an exaggerated and unwarranted response to prison
security. The County has changed its policy regarding the
procedure of chaining detainees to their cell doors, now
limiting the maximum time that detainees may be chained to
the door absent approval from a watch commander. The
County now also uses body scanners, which enable it to
7 This is a separate question from whether the County’s visual body
cavity search policy was legitimately related to the jail’s security
interests.

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S HORTER V. BACA 23
avoid the visual cavity searches that were common when
Shorter was a pretrial detainee.
Even at the time, the jail had an alternative, less abusive
means of obtaining contraband from inmates. If a guard
believed that an inmate had contraband, jail policy instructed
the guard to isolate the inmate from other inmates, provide
access to a toilet, turn off the water to the toilet, and line the
toilet with plastic to trap any contraband as evidence. The
deputies also could have sought out a mental health
professional to talk to the detainee, or they could have
reported the incident to the watch commander and
documented it in the jail’s recording system. Instead, the
record shows that CRDF deputies routinely disregarded
these policies in favor of the more commonly used method
of chaining detainees, unclothed, to their cell doors.
In the past, where we have concluded that the methods
used to conduct the search are unnecessary and unduly
humiliating to the detainee, we have not deferred to
correctional officials’ search procedures. See Byrd v.
Maricopa Cty. Sheriff’s Dep’t, 629 F.3d 1135, 1141–42 (9th
Cir. 2011) (en banc), cert denied, 131 S. Ct. 2964 (2011).
The facts presented in Shorter’s appeal are not as similar to
Florence as they are to Byrd v. Maricopa County Sheriff’s
Department, where our court, en banc, concluded that a
cross-gender strip search of a pretrial detainee was an
unreasonable incursion on the detainee’s Fourth
Amendment rights. Id. at 1142. We concluded that
deference to jail officials was unwarranted when the
methods used as part of the search were unreasonable. Id. at
1147. We confirmed that, “although valid reasons to search
the inmates existed generally, there was no justification
given for conducting a cross-gender strip search,”
particularly when the search was not necessitated by an

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24 S HORTER V. BACA
emergency and when other guards of the inmate’s same
gender were available to the conduct the search. Id. at 1143.
“We readily acknowledge the deference due prison officials
engaged in the admittedly difficult task of administering
inmate populations. However, that deference does not
extend to sanctioning a clear violation of an inmate’s
constitutional rights.” Id. at 1147; accord Michenfelder v.
Sumner, 860 F.2d 328, 332–33 (9th Cir. 1988) (confirming
that searches that are “excessive, vindictive, harassing, or
unrelated to any legitimate penological interest” violate the
Fourth Amendment).
Nor have we concluded that deference is routinely
warranted to prison officials in other contexts, including
when the prison officials make decisions about a detainee’s
medical care. Chess, 790 F.3d at 973. In Chess, we
concluded that the magistrate judge erred in giving the
Norwood instruction for a § 1983 claim against a prison
doctor who decided to withhold methadone to an inmate,
rather than taper off the methadone while the inmate
remained in a separate medical unit. See id. at 964, 973–75.
And, in Mendiola-Martinez, we confirmed that there were
genuine issues of disputed fact about whether a jail’s
decision to shackle a detainee during a C-section was an
exaggerated response to a security threat, particularly where
the woman did not give any indication that she would try to
escape. 836 F.3d at 1255. These cases acknowledge that
determinations about whether to defer to jail officials are
often fact-intensive and context-dependent.

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S HORTER V. BACA 25
Here, where the County has not offered any reason why
it needed to keep mentally ill inmates shackled and
unclothed, without food, water, or access to a toilet for hours
at a time, we conclude that the County’s search practices
were not entitled to deference as a matter of law. The County
has since disavowed this past shackling practice, concluding
that it is no longer justified, but this does not mean that
Shorter is deprived of a forum to vindicate her civil rights
and obtain damages, if appropriate. On these facts, the
district court erroneously instructed the jury to defer to the
judgment of jail officials.
C.
These instructional errors were not harmless. An error
in a jury instruction is harmless if defendants demonstrate
that “it is more probable than not that the jury would have
reached the same verdict had it been properly instructed.”
Clem, 566 F.3d at 1182. The defendants cannot make such
a showing here. We have recognized that the Norwood
instruction deals a “devastating blow” to the plaintiff’s
constitutional claims. Harrington v. Scribner, 785 F.3d
1299, 1307 (9th Cir. 2015). And it has been further
suggested in a dissent that the instruction amounts to a
“command to direct a verdict in favor of the government.”
Norwood, 591 F.3d at 1072 (Thomas, J., dissenting). Given
the strength of Shorter’s evidence that the jail’s policies were
not reasonably related to the jail’s interest in securing
inmates and staff, we conclude that giving these deference
instructions was not harmless error.
D.
We understand that we have, at times, left it to the jury
to decide whether deference to jail officials is warranted
where there is a genuine dispute of material fact over

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whether the jail’s policies or practices were unnecessary,
unwarranted, or exaggerated. See Mendiola-Martinez,
836 F.3d at 1257. Because the County has not offered any
legitimate, security-based reason for the shackling of all
inmates during recreation, for curtailing inmate meals and
showers, or for the shackling of noncompliant inmates in
their cells after searches, there is no such dispute of fact here.
The jail officials were not entitled to deference on this
record.
III.
Moving to Shorter’s misclassification claim, we
conclude that the magistrate judge abused his discretion by
denying Shorter’s motion for a new trial on her claim that
she was placed in the more restrictive HOH unit without
sufficient due process. Pretrial detainees have a right to
procedural due process before they are subjected to more
severe conditions of confinement than other detainees. See
Mitchell v. Dupnik, 75 F.3d 517, 523 (9th Cir. 1986).
Shorter presented evidence that jail officials did not provide
her with grievance forms that she could use to challenge her
mental health classification. Shorter also produced the DOJ
letter, which confirmed that jail officials routinely did not
complete mental health screenings and regularly failed to
record the results of such screenings, when conducted, on the
detainee’s electronic medical record. Because the County
came forward with no evidence that Shorter had received
such grievance forms, the jury verdict was against the clear
weight of the evidence. Shorter is entitled to a new trial on
this issue as well.
IV.
Turning finally to Shorter’s inadequate medical care
claim, we vacate and remand for further proceedings in light

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S HORTER V. BACA 27
of our recent opinion in Gordon v. County of Orange, 888
F.3d 1118 (9th Cir. 2018). In Gordon, we concluded that
“claims for violations of the right to adequate medical care
‘brought by pretrial detainees against individuals under the
Fourteenth Amendment’ must be evaluated under an
objective deliberate indifference standard,” and we set forth
the elements of a medical care claim under the due process
clause of the Fourteenth Amendment. Id. at 1124–25
(quoting Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1070
(9th Cir. 2016)). Not having the benefit of Gordon, the
district court evaluated Shorter’s inadequate medical care
claim under the Eighth Amendment’s subjective deliberate
indifference standard. Because the pretrial grant of
summary judgment was based on an erroneous legal
standard, we vacate and remand the judgment in favor of
County Defendants on Shorter’s § 1983 inadequate medical
care claim for further proceedings consistent with Gordon.
V.
In conclusion, we understand that, while courts
“unquestionably should be reluctant to second-guess prison
administrators’ opinions about the need for security
measures,” Block, 468 U.S. at 593 (Blackmun, J.,
concurring), the judicial system has a role in safeguarding
inmates from serious civil rights abuses, the kind that Shorter
claims here. If plaintiffs in § 1983 actions demonstrate that
their conditions of confinement have been restricted solely
because of overcrowding or understaffing at the facility, a
deference instruction ordinarily should not be given.
Similarly, if plaintiffs in § 1983 actions demonstrate that
they have been subjected to search procedures that are an
unnecessary, unjustified, or exaggerated response to
concerns about jail safety, we do not defer to jail officials.
Otherwise, “careless invocations of ‘deference’ run the risk

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of returning us to the passivity of several decades ago, when
the then-prevailing barbarism and squalor of many prisons
were met with a judicial blind eye and a ‘hands off’
approach.” Id. at 594.
REVERSED and REMANDED as to the denial of
Shorter’s motion for a new trial.
VACATED and REMANDED as to the partial grant
of summary judgment in favor of County Defendants on
Shorter’s § 1983 claim for inadequate medical care.

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