Mary Gordon, successor-in- interest for decedent, Matthew Shawn Gordon, individually v. County of Orange

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
M ARY GORDON, successor-in-
interest for decedent, Matthew
Shawn Gordon, individually,
Plaintiff-Appellant,
v.
COUNTY OF ORANGE ; ORANGE
COUNTY S HERIFF ’ S DEPARTMENT ;
SANDRA H UTCHENS , Orange County
Sheriff - Coroner; ORANGE COUNTY
CENTRAL M EN’ S J AIL; ORANGE
COUNTY HEALTH CARE AGENCY;
DOES , 5 through 10, inclusive;
ROBERT DENNEY ; BRIAN TUNQUE ;
BRIANNE GARCIA; DEBRA FINLEY,
Defendants-Appellees.
No. 19-56032
D.C. No.
8:14-cv-01050-
CJC-DFM
OPINION
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Argued and Submitted April 30, 2021
San Francisco, California
Filed July 26, 2021

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2 GORDON V . COUNTY OF ORANGE
Before: Kim McLane Wardlaw and Ronald M. Gould,
Circuit Judges, and Yvonne Gonzalez Rogers,*
District Judge.
Opinion by Judge Gonzalez Rogers
SUMMARY**
Civil Rights
The panel affirmed in part and reversed in part the
district court’s summary judgment in favor of jail officials in
an action brought pursuant to 42 U.S.C. § 1983 alleging that
plaintiff’s son, Matthew Gordon, received inadequate
medical care under the due process clause of the Fourteenth
Amendment after he was admitted as a pretrial detainee to
the Orange County Central Men’s Jail.
In Gordon’s previous appeal, this Court held that
inadequate medical care claims brought by pretrial detainees
require a showing of objective, not subjective, deliberate
indifference. See Gordon v. County of Orange, 888 F.3d
1118, 1124–25 (9th Cir. 2018). Following remand, the
district court allowed additional expert discovery and
ultimately granted summary judgment for the individual
defendants on the basis of qualified immunity and for the
entity defendant on the ground that the plaintiff could not
* 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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GORDON V . COUNTY OF ORANGE 3
establish a custom or practice sufficient under Monell v.
Dep’t of Soc. Servs., 436 U.S. 658 (1978).
The panel affirmed as to plaintiff’s Monell claim,
holding that the record lacked evidence of any other event
involving similar conduct or constitutional violations and
plaintiff’s reference to subsequent changes to operating
procedures was insufficient to demonstrate the existence of
a custom. The panel also affirmed the district court’s grant
of summary judgment to individual defendants Nurse Garcia
and Sergeant Tunque because plaintiff failed to articulate
any basis for an appeal.
With respect to defendants Nurse Finley and Deputy
Robert Denney, the panel held that the district court
committed legal error by using a subjective standard in
analyzing the clearly established prong of the qualified
immunity test. Further, as to Nurse Finley, summary
judgment was not proper because the available law at the
time of the incident clearly established Matthew Gordon’s
constitutional rights to proper medical screening to ensure
medically appropriate protocol was initiated. Given that the
County instituted two screening forms to ensure the
initiation of a medically appropriate protocol, the panel
remanded the case for a factual analysis of the remaining
prong of the qualified immunity test.
As to Deputy Denney, the panel stated that it was not
aware of any precedent expressly recognizing a detainee’s
right to direct-view safety checks sufficient to determine
whether the detainee’s presentation indicated the need for
medical treatment. Accordingly, Deputy Denney was
entitled to qualified immunity because the due process right
to an adequate safety check for pretrial detainees was not
clearly established at the time of the incident. The panel

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4 GORDON V . COUNTY OF ORANGE
nevertheless held that pre-trial detainees do have a right to
direct-view safety checks sufficient to determine whether
their presentation indicates the need for medical treatment.
The panel stated that law enforcement and prison personnel
should heed this warning because the recognition of this
constitutional right would protect future detainees.
COUNSEL
David A. Schlesinger (argued), Jacobs & Schlesinger LLP,
San Diego, California; Cameron Sehat, The Sehat Law Firm
PLC, Irvine, California; for Plaintiff-Appellant.
S. Frank Harrell (argued) and Jesse K. Cox, Lynberg &
Watkins PC, Orange, California, for Defendants-Appellees.
OPINION
GONZALEZ ROGERS, District Judge:
This is the second appeal arising from the death of
Matthew Gordon within 30 hours after he was admitted as a
pretrial detainee in the Orange County Central Men’s Jail.
His mother, plaintiff Mary Gordon, alleges Section 1983
claims of inadequate medical care under the due process
clause of the Fourteenth Amendment. In a previous appeal,
this Court held that inadequate medical care claims brought
by pretrial detainees require a showing of objective, not
subjective, deliberate indifference. See Gordon v. County of
Orange, 888 F.3d 1118, 1124–25 (9th Cir. 2018) (“Gordon
I”). Following remand, the district court allowed additional
expert discovery and ultimately granted summary judgment
for the individual defendants on the basis of qualified

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GORDON V . COUNTY OF ORANGE 5
immunity and for the entity defendant on the ground that the
plaintiff could not establish a custom or practice sufficient
under Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).
Plaintiff timely appealed.
Based upon a de novo review, and for the reasons set
forth below, we affirm as to plaintiff’s Monell claim and
individual defendants Deputy Robert Denney, Nurse
Brianna Garcia, and Sergeant Brian Tunque.1 However, we
reverse and remand as to individual defendant Nurse Debbie
Finley.
With respect to Nurse Finley and Deputy Denney, we
conclude that the district court committed legal error by
using a subjective standard in analyzing the clearly
established prong of the qualified immunity test. Further, as
to Nurse Finley, summary judgment was not proper because
the available law at the time of the incident clearly
established Gordon’s constitutional rights to proper medical
screening to ensure the medically appropriate protocol was
initiated. However, as to Deputy Denney, although we now
hold that Gordon had a constitutional right to direct-view
safety checks, that right was not clearly established at the
time of the incident.
1 With respect to defendants Garcia and Tunque, we affirm the
district court’s grant of summary judgment because the plaintiff failed to
articulate any basis for an appeal. “We review only issues which are
argued specifically and distinctly.” Greenwood v. F.A.A., 28 F.3d 971,
977 (9th Cir. 1994); see also United States v. Graf, 610 F.3d 1148, 1166
(9th Cir. 2010) (“Arguments made in passing and not supported by
citations to the record or to case authority are generally deemed
waived.”).

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6 GORDON V . COUNTY OF ORANGE
FACTUAL BACKGROUND
On September 8, 2013, Gordon was arrested by the
Placentia Police Department on heroin-related charges and
booked into the Orange County Central Men’s Jail. During
his intake at approximately 6:47 p.m. that day, Gordon
informed defendant Debbie Finley, a registered nurse, of his
3-grams-a-day heroin habit.
At the time, two detoxification protocols existed for
purposes of assessing inmates suffering from substance
withdrawal: (1) the Clinical Institute Withdrawal
Assessment for Alcohol (“CIWA”), and (2) the Clinical
Opiate Withdrawal Scale (“COWS”). Despite Gordon
reporting his heroin use, jail medical staff never utilized the
COWS protocol. Instead, non-party Dr. Thomas Le, a
consulting physician, ordered that Gordon be evaluated
under CIWA. Indeed, although the form that Dr. Le
completed was titled “Opiate WD [Withdrawal] Orders,” it
was amended to direct an alcohol withdrawal protocol.
Specifically, the form contained a section titled “Nursing
Detox Assessments.” Under that section, a checkbox
denoted as “COWS and Vital Signs on admission and daily
x 5” was crossed out, and “CIWA x 4 days” was handwritten
instead. In other words, Gordon was to receive the ordered
alcohol protocol for four days. In addition, Dr. Le ordered
that Gordon be placed in regular housing rather than medical
unit housing and prescribed Tylenol for pain, Zofran for
nausea, and Atarax for anxiety.
After remand, Dr. Le submitted a declaration attesting
that the CIWA protocol was appropriate for a poly-drug
abuser such as Gordon. Conversely, the plaintiff’s nursing
expert opined that the COWS form would have measured
symptoms specific to opiate withdrawal and triggered a need
to house Gordon in the medical observation unit where

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GORDON V . COUNTY OF ORANGE 7
Gordon would have been monitored more closely. The
plaintiff’s expert further opined that had the COWS form
been used, it is more probable than not that Gordon would
have been found to be in medical distress hours prior to his
death. In accordance with Dr. Le’s orders, Nurse Finley
used the CIWA form to assess his symptoms. However, the
record contains only one CIWA assessment dated September
8, 2013.
After his intake assessment, Gordon began the “loop”
phase of the booking process during which time he waited
nearly ten hours to enter the general population. During this
period, another inmate had observed Gordon vomiting and
dry heaving for 45 minutes. Nurse Finley testified that she
did not assess Gordon during this timeframe.
Gordon exited the loop at approximately 8:30 a.m. the
next day, September 9, when he was transferred to Tank 11
in Module C of the jail. There, he presented his
identification card which stated: “Medical Attention
Required.”2 Gordon was administered his detoxification
medications three times over the course of his first day in
Module C. However, no CIWA form or other evaluation of
Gordon occurred that day, despite the ordered daily CIWA
assessment. Defendant Brianna Garcia, a licensed
vocational nurse, completed Gordon’s last pill pass at
approximately 8:30 p.m. that evening.
Meanwhile, deputies were responsible for conducting
safety checks of the inmates in Module C at least every
60 minutes. Based on the safety check log, at approximately
6:47 p.m., defendant Deputy Robert Denney and another
deputy conducted a check that included a physical count of
2 Further detail of the card is not in the record.

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8 GORDON V . COUNTY OF ORANGE
all the inmates in the module. Thereafter, additional safety
checks were conducted at approximately 8:03 p.m.,
8:31 p.m., 9:29 p.m., and 10:10 p.m., as indicated by the log.
According to the plaintiff, the two safety checks
conducted by Deputy Denney at 8:31 p.m. and 9:29 p.m. did
not comply with applicable law. Specifically, Section 1027
of Title 15 of the California Code of Regulations, in effect at
the time, required that “[a] sufficient number of personnel
shall be employed in each local detention facility to conduct
at least hourly safety checks of inmates through direct visual
observation of all inmates.” 15 C.C.R. § 1027 (effective
September 19, 2012).3 Moreover, the Orange County
Sheriff’s Department had a policy that correctional staff
“will conduct safety checks from a location which provides
a clear, direct view of each inmate”; “observe each inmate’s
presence and apparent condition and investigate any unusual
circumstances or situations”; and “pay special attention to
areas with low visibility.” None of the deputies could
account for who conducted the 10:10 p.m. safety check.
Deputy Denney testified that he was aware that Gordon
required medical attention based on the module
identification card, though he did not know his specific
ailment. Deputy Denney conducted his safety check of
Gordon from a corridor that was approximately six feet
elevated from the tank floor and 12 to 15 feet away from the
foot of Gordon’s bunk. Deputy Denney admitted that, from
his vantage point, he was unable to ascertain whether
3 The current version of Section 1027 no longer addresses safety
checks, which are now addressed in Section 1027.5, though that section
was not in effect at the time of the incident.

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GORDON V . COUNTY OF ORANGE 9
Gordon was breathing, alive, sweating profusely, drooling,
or had any potential indicators of a physical problem.
At approximately 10:45 p.m. that evening, deputies
heard inmates from Tanks 11 and 12 yelling “man down.”
Deputies summoned jail medical staff immediately, and they
responded within minutes. Deputy Denney testified that
upon his arrival on the scene, he observed that Gordon’s
“face was blue, he was unresponsive, and his skin was cold
to the touch.” Paramedics arrived at approximately 11:00
p.m. and transported Gordon to a local hospital where he was
pronounced dead. The record reflects that defendant Brian
Tunque was the supervising Sergeant on the night of the
incident but was apparently not otherwise involved in these
events.
Shortly thereafter, in October 2013, a new policy issued
referencing the use of COWS that required jail medical staff
to screen “inmates who may be at risk for developing drug
or alcohol related problems.” Then, at some point between
late 2014 and early 2015, policy changed to require deputies
to conduct safety checks from an area immediately adjacent
to the module for a more direct visual observation of the
inmates.
PROCEDURAL HISTORY AND STANDARD OF
REVIEW
After Gordon I, the case was remanded, and the district
court permitted time for additional expert discovery.
Thereafter, the individual defendants and the County
renewed their separate motions for summary judgment. The
district court granted summary judgment both for the
individual defendants on grounds of qualified immunity and
for the County for failure to show a custom or practice

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10 GORDON V . COUNTY OF ORANGE
sufficient under Monell, 436 U.S. at 658. The plaintiff
timely appealed.
We review a district court’s decision to grant summary
judgment de novo. Bravo v. City of Santa Maria, 665 F.3d
1076, 1083 (9th Cir. 2011) (citation omitted). “Viewing the
evidence and drawing all inferences in the light most
favorable to the non-moving party, we must determine
whether any genuine issues of material fact remain and
whether the district court correctly applied the relevant
substantive law.” Id.
DISCUSSION
I. Qualified Immunity
A. Legal Framework for the Two-Prong Approach
In evaluating a grant of qualified immunity, a court
considers whether (1) the state actor’s conduct violated a
constitutional right and (2) the right was clearly established
at the time of the alleged misconduct. See Saucier v. Katz,
533 U.S. 194, 200–01 (2001), overruled in part by Pearson
v. Callahan, 555 U.S. 223 (2009). “While the constitutional
violation prong concerns the reasonableness of the officer’s
mistake of fact, the clearly established prong concerns the
reasonableness of the officer’s mistake of law.” Torres v.
City of Madera, 648 F.3d 1119, 1127 (9th Cir. 2011)
(emphasis in original). Either question may be addressed
first, and if the answer to either is “no,” then the state actor
cannot be held liable for damages. See Pearson, 555 U.S.
at 236.
Whether a constitutional right is clearly established is
purely a question of law for the court to decide. See Elder v.
Holloway, 510 U.S. 510, 511 (1994) (“Whether a federal

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GORDON V . COUNTY OF ORANGE 11
right was clearly established at a particular time is a question
of law, not ‘legal facts[.]’”); Morales v. Fry, 873 F.3d 817,
825 (9th Cir. 2017) (“[T]he district court erred in submitting
the ‘clearly established’ inquiry to the jury.”). Moreover, a
detainee’s mental state has no bearing on the analysis. See
Sandoval v. County of San Diego, 985 F.3d 657, 675 (9th
Cir. 2021) (“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.”). The
“qualified immunity analysis remains objective even when
the constitutional claim at issue involves subjective
elements.” Id. at 674 (citing 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.”)).
Here, the district court erred in analyzing the clearly
established prong by incorporating a subjective standard.
“The [individual defendant’s] actual subjective appreciation
of the risk is not an element of the established-law inquiry.”
Sandoval, 985 F.3d at 678; see also id. at 671–72 (rejecting
approach of “apply[ing] all elements of an inadequate
medical care claim” in determining whether qualified
immunity exists); Horton by Horton v. City of Santa Maria,
915 F.3d 592, 601 (9th Cir. 2019) (“[W]hether or not Officer
Brice was in fact deliberately indifferent to a substantial risk
that Horton would attempt suicide in the time before he was
checked, there was no case law at the time of the incident
clearly establishing that a reasonable officer should have
perceived the substantial risk.”). We now conduct the
analysis de novo.

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12 GORDON V . COUNTY OF ORANGE
B. The Clearly Established Prong
1. Legal Framework for This Prong
Qualified immunity “protects ‘all but the plainly
incompetent or those who knowingly violate the law.’”
White v. Pauly, 137 S. Ct. 548, 551 (2017) (quoting Mullenix
v. Luna, 577 U.S. 7, 12 (2015)); see Brosseau v. Haugen,
543 U.S. 194, 198 (2004) (per curiam) (qualified immunity
shields reasonable, even if constitutionally deficient,
misapprehensions of the law). For a constitutional right to
be clearly established, a court must define the right at issue
with “specificity” and “‘not . . . at a high level of
generality.’” City of Escondido v. Emmons, 139 S. Ct. 500,
503 (2019) (per curiam) (quoting Kisela v. Hughes, 138 S.
Ct. 1148, 1152 (2018) (per curiam)).
“[T]he right allegedly violated must be defined at the
appropriate level of specificity before a court can determine
if it was clearly established.” Cousins v. Lockyer, 568 F.3d
1063, 1070 (9th Cir. 2009) (quoting Wilson v. Layne,
526 U.S. 603, 615 (1999)) (emphasis supplied). “Our goal
is to define the contours of the right allegedly violated in a
way that expresses what is really being litigated.” LSO, Ltd.
v. Stroh, 205 F.3d 1146, 1158 (9th Cir. 2000). The right
should be defined in a way that is neither “too general” nor
“too particularized.” Id. Qualified immunity is not meant to
be analyzed in terms of a “general constitutional guarantee,”
but rather the application of general constitutional principles
“in a particular context.” Id. (quoting Todd v. United States,
849 F.2d 365, 370 (9th Cir. 1988)). On the other hand,
casting an allegedly violated right too particularly, “would
be to allow [the instant defendants], and future defendants,
to define away all potential claims.” Id. (quoting Kelley v.
Borg, 60 F.3d 664, 667 (9th Cir. 1995)); see also Simon v.
City of New York, 893 F.3d 83, 96–97 (2d Cir. 2018) (“This

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GORDON V . COUNTY OF ORANGE 13
task involves striking a balance between defining the right
specifically enough that officers can fairly be said to be on
notice that their conduct was forbidden, but with a sufficient
measure of abstraction to avoid a regime under which rights
are deemed clearly established only if the precise fact pattern
has already been condemned.”) (citations and internal
quotation marks omitted).
“[A] court must ask whether it would have been clear to
a reasonable officer that the alleged conduct ‘was unlawful
in the situation he confronted.’” Ziglar v. Abbasi, 137 S. Ct.
1843, 1867 (2017) (quoting Saucier, 533 U.S. at 202).
“While there does not have to be a case directly on point,
existing precedent must place the lawfulness of the particular
[action] beyond debate,” Emmons, 139 S. Ct. at 504
(alteration in original) (quoting District of Columbia v.
Wesby, 138 S. Ct. 577, 581 (2018) (internal quotation marks
omitted)), and must “‘squarely govern[ ]’ the specific facts
at issue,” Kisela, 138 S. Ct. at 1153 (quoting Mullenix,
577 U.S. at 15). See Jessop v. City of Fresno, 936 F.3d 937,
940–41 (9th Cir. 2019) (“The contours of the right must be
sufficiently clear that a reasonable official would understand
that what he is doing violates that right.”) (quoting Anderson
v. Creighton, 483 U.S. 635, 640 (1987)).
The plaintiff “bears the burden of showing that the rights
allegedly violated were clearly established.” Shafer v.
County of Santa Barbara, 868 F.3d 1110, 1118 (9th Cir.
2017) (internal quotation marks and citation omitted).
However, because resolving whether the asserted federal
right was clearly established presents a pure question of law,
we draw on our “full knowledge” of relevant precedent
rather than restricting our review to cases identified by the
plaintiff. See Elder, 510 U.S. at 516 (holding appellate court
must review qualified immunity judgment de novo and

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14 GORDON V . COUNTY OF ORANGE
resolve whether federal right was clearly established in light
of its “full knowledge of its own [and other relevant]
precedents”) (alteration in original) (citation omitted).
Ultimately, “the prior precedent must be ‘controlling’—
from the Ninth Circuit or Supreme Court—or otherwise be
embraced by a ‘consensus’ of courts outside the relevant
jurisdiction.” Sharp v. City of Orange, 871 F.3d 901, 911
(9th Cir. 2017) (citing Wilson, 526 U.S. at 617); see also
Wesby, 138 S. Ct. at 589–90 (“The rule must be settled law,
which means it is dictated by controlling authority or a
robust consensus of cases of persuasive authority. It is not
enough that the rule is suggested by then-existing
precedent.”) (internal quotation marks and citations
omitted); Carroll v. Carman, 574 U.S. 13, 17 (2014) (per
curiam) (assuming without deciding that controlling circuit
precedent could constitute clearly established federal law).
2. Application
Commonly, plaintiffs seek to define an allegedly
violated constitutional right too broadly, while defendants
do so too narrowly. The same occurred here with plaintiff
arguing that Gordon “had a clearly established right under
the Due Process Clause to adequate medical care for his
heroin withdrawal” and defendants framing the alleged
violation as “a difference of opinion” on the specific facts of
this case. Neither articulation strikes the appropriate
balance. However, the district court did not resolve the issue
of defining the constitutional rights at issue. Instead, it
merely distinguished plaintiff’s authorities based on an
erroneous understanding of the applicable standard. We
consider the issue de novo, first as to Nurse Finley and then
as to Deputy Denney.

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GORDON V . COUNTY OF ORANGE 15
a. Proper Medical Screening to Ensure
Initiation of the Medically Appropriate
Protocol (Nurse Finley)
The core of “what is really being litigated” against Nurse
Finley is whether she used the proper medical screening
form to ensure the initiation of a medically appropriate
protocol while Gordon was detained. See LSO, 205 F.3d at
1158. Although we have not used those precise words in
stating that a constitutional right exists, our precedent
confirms that a pretrial detainee’s right to proper medical
screening was clearly established.
At the time of the incident here, it was well settled that
prison officials violate the Constitution when they choose a
course of treatment that is “medically unacceptable under all
of the circumstances.” Snow v. McDaniel, 681 F.3d 978, 988
(9th Cir. 2012), overruled in part on other grounds by
Peralta v. Dillard, 744 F.3d 1076, 1083 (9th Cir. 2014) (en
banc). In cases involving “choices between alternative
courses of treatment,” plaintiff “must show that the course
of treatment the doctors chose was medically unacceptable
under the circumstances” and that “they chose this course in
conscious disregard of an excessive risk to plaintiff’s
health.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir.
1996) (citation omitted), overruled in part on other grounds
by Peralta, 744 F.3d at 1076.
Almost twenty years ago, the Ninth Circuit in Gibson v.
County of Washoe, 290 F.3d 1175, 1194–96 (9th Cir. 2002),
overruled on other grounds by Castro v. County of Los
Angeles, 833 F.3d 1060 (9th Cir. 2016), determined that a
jury could find a constitutional violation by an intake nurse
who “knew that [the plaintiff] was in the throes of a manic
state” but “fail[ed] to provide for the identification of [his
urgent mental health] needs.” Id. at 1193–96 (addressing

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16 GORDON V . COUNTY OF ORANGE
municipal liability based on non-party employee’s
constitutional violation). Gibson has been recognized for the
proposition that the “failure to medically screen new inmates
may constitute deliberate indifference to medical needs.”
M.H. v. County of Alameda, 62 F. Supp. 3d 1049, 1077 (N.D.
Cal. 2014).4
As early as 1990, the Second Circuit agreed in a similar
situation that appropriate medical screening is critical. In
Liscio v. Warren, 901 F.2d 274 (2d Cir. 1990), overruled in
part on other grounds by Caiozzo v. Koreman, 581 F.3d 63,
66 n.1 (2d Cir. 2009), the Second Circuit reversed summary
judgment for a doctor who “was on notice that Liscio might
be suffering from ailments other than withdrawal from the
heroin addiction Liscio mentioned when first booked.” Id.
at 276. The doctor was “on notice that the particular ailment
might be alcohol withdrawal because Liscio’s symptoms—
delirium and bizarre behavior—are commonly associated
with alcohol withdrawal and not with simple heroin
withdrawal.” Id. at 276–77. Rather than responding to these
4 See also Kodimer ex rel. Lyn Ramskill v. County of San Diego, No.
07-CV-2221 (RTB), 2010 WL 2635548, at *3–4 (S.D. Cal. June 30,
2010) (relying on Gibson to deny screening nurse’s motion for summary
judgment where the nurse declined to order immediate psychological
evaluation for inmate despite clinical indications of psychiatric
symptoms); Bravo v. City of Santa Maria, No. 06-CV-6851 (FMO),
2013 WL 12224038, at *13 (C.D. Cal. July 19, 2013) (“[I]n Gibson, the
Ninth Circuit ruled that a plaintiff could establish ‘direct’ liability of a
County by showing its policies and procedures failed to adequately
screen and protect the rights of mentally ill detainees to medical care.”)
(citation omitted); Fricano v. Lane County, No. 16-CV-1339 (MJM),
2018 WL 2770643, at *11 (D. Or. June 8, 2018) (“[T]he failure to screen
for an entire category of serious medical need (i.e., mental health
crises)—a category which may require outside treatment prior to jail
admission—could be viewed as creating a substantial risk of serious
harm.”) (citing Gibson, 290 F.3d at 1189).

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GORDON V . COUNTY OF ORANGE 17
alcohol-specific symptoms, the doctor “erroneously
presumed the cause of [Liscio’s] condition to be heroin
withdrawal.” Id. at 276. According to the plaintiff’s
substance abuse expert, “it is crucial that medical personnel
at correctional facilities distinguish between heroin
withdrawal, which is uncomfortable but not life-threatening,
and alcohol withdrawal, which has a ‘serious’ mortality
rate.” Id. The expert opined that the doctor had “severely
mismanaged” Liscio’s case, causing “unnecessary injury
and suffering, and placing him in a life-threatening
condition.” Id.
The principles drawn from Snow and Gibson, and by
extension Liscio, demonstrate that, at a minimum, medical
personnel at jail facilities are required to screen pretrial
detainees for critical medical needs. Thus, at the time of the
incident, Gordon had a clearly established constitutional
right to have a proper medical screen conducted to ensure
the medically appropriate protocol was initiated.5 As
5 This conclusion is further corroborated by numerous other district
courts that reached the same conclusion albeit after the date of the
incident. See, e.g., Paugh v. Uintah County, No. 17-CV-1249 (JNP),
2020 WL 4597062, at *8 (D. Utah Aug. 11, 2020) (denying summary
judgment for individual and entity defendants where “[j]ail officers had
access to a CIWA form” but failed to administer protocol for inmate
suffering from alcohol withdrawal, leading to death); Aus v. Salt Lake
County, No. 16-CV-2666 (JNP), 2019 WL 3021217, at *10 (D. Utah July
10, 2019) (denying summary judgment for entity defendants where “the
absence of any established protocol for benzodiazepine withdrawal
syndrome—a clear policy choice in light of the [e]ntity [d]efendants’
promulgation of withdrawal protocols for alcohol and opioids” could
support Monell claim); Thornhill for Estate of Berry v. Aylor, No. 15-
CV-24 (GEC), 2017 WL 4685986, at *10–11 (W.D. Va. Oct. 18, 2017)
(denying summary judgment for screening nurse who “knew that
[inmate] had a history of alcohol abuse and that the signs of alcohol
withdrawal would develop later” but failed to initiate CIWA protocol

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18 GORDON V . COUNTY OF ORANGE
applied here, Finley acted as gatekeeper by serving as the
screening nurse and was therefore responsible for
identifying an inmate’s urgent medical needs. Whether she
failed to do so is properly considered under the first prong of
the qualified immunity analysis.
Accordingly, the district court’s grant of qualified
immunity based on the clearly established prong is reversed
as to Nurse Finley. Given that the County instituted two
screening forms to ensure the initiation of a medically
appropriate protocol, the case is remanded for a factual
analysis of the remaining prong of the qualified immunity
test.
b. Direct-View Safety Check Sufficient to
Evaluate an Apparent Medical
Condition (Deputy Denney)
The gravamen of the action against Deputy Denney is
whether, as a pretrial detainee, Gordon had a constitutional
right to direct-view safety checks when he was known to
because she believed he “was at a risk for only heroin, and not alcohol,
withdrawal”); Hernandez v. County of Monterey, 110 F. Supp. 3d 929,
959 (N.D. Cal. 2015) (class action lawsuit of former and current inmates
addressing problems with the detoxification treatment in the county jail
where a preliminary injunction issued requiring the County to file a plan
including, among other components: “Detoxifying inmates [who] shall
be adequately monitored using the CIWA protocol or equivalent
validated monitoring protocol, shall receive pharmacological treatment
as indicated and be appropriately housed based on their clinical
conditions”; and “Defendants shall develop separate treatment protocols
for opiate, alcohol and benzodiazepine withdrawal”); M.H., 62 F. Supp.
3d at 1077 (district court “conclud[ing] that a reasonable jury could find
[a screening nurse] was deliberately indifferent to the risk of severe
alcohol withdrawal when she failed to initiate a CIWA protocol or
otherwise ensure [an inmate’s] medical needs would be addressed”).

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GORDON V . COUNTY OF ORANGE 19
require medical attention. It has long been held that “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.” Sandoval,
985 F.3d at 679–80 (discussing Jett v. Penner, 439 F.3d
1091, 1097–98 (9th Cir. 2006); Clement v. Gomez, 298 F.3d
898, 902, 904–05 (9th Cir. 2002); and Hunt v. Dental Dep’t,
865 F.2d 198, 200 (9th Cir. 1989)).
However, we are not aware of any precedent expressly
recognizing a detainee’s right to direct-view safety checks
sufficient to determine whether their presentation indicates
the need for medical treatment. At the time of the incident,
some lower courts had recognized a right to direct-view
safety checks even where medical attention was not
required. For example, in Wereb v. Maui County, 727 F.
Supp. 2d 898 (D. Haw. 2010), the court concluded that “a
reasonable factfinder could find that the failure to provide
detainees with the right to medical care was an obvious
consequence of Maui County’s employees’ failure to closely
monitor detainees or view them in person.” Id. at 923.
There, the defendants had failed to follow police department
protocols, which required in-person visual checks of
detainees, and instead used video monitoring. Id. at 903.
Despite the defendants purportedly monitoring the detainee
every fifteen minutes via video, Wereb was found dead in
his cell around twenty-seven hours after his last recorded
movement. Id.; see also Estate of Abdollahi v. County of
Sacramento, 405 F. Supp. 2d 1194, 1206–07 (E.D. Cal.
2005) (denying county’s summary judgment motion where
a reasonable jury could find the jail’s failure to conduct

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20 GORDON V . COUNTY OF ORANGE
regular safety checks as stated in 15 C.C.R. § 1027 posed a
substantial risk to inmates).6
Nevertheless, Deputy Denney is entitled to qualified
immunity because the due process right to an adequate safety
check for pretrial detainees was not clearly established at the
time of the incident. We now hold that pre-trial detainees do
have a right to direct-view safety checks sufficient to
6 Further corroborating this analysis, in one post-incident case, a
lower court expressed the obviousness of failing to actually observe the
inmate during safety checks:
[T]he Court easily concludes that Plaintiffs can make
out at least a triable issue of fact with respect to each
of the elements of this claim . . . . [The] defendants
knowingly failed to perform safety checks required by
policy and law, and were charged with performing
them (under the view of the facts resolved in Plaintiffs’
favor); there are facts supporting a conclusion that
safety-checks are designed with the purpose of
ensuring that inmates are alive-and-well and to
determine whether they need any medical treatment,
and that failure to perform—or a delay in
performing—them increases the inmates’ risk of harm
and could threaten their health or at the very least delay
medical assistance and emergency response; and there
are disputes concerning whether, had they performed
the safety checks as required, they would have
discovered Decedent and Decedent’s condition in time
to aid or save him.
Medina v. County of Los Angeles, No.19-CV-3808 (GHW), 2020 WL
3964793, at *16 (C.D. Cal. Mar. 9, 2020); see also Frary v. County of
Marin, 81 F. Supp. 3d 811, 820, 837 (N.D. Cal. 2015) (post-incident)
(denying County’s summary judgment motion where “a reasonable jury
could conclude that the County’s tower checks [from which no portion
of the inmate’s cell-bed could be seen] would not allow deputies to
adequately observe inmates”).

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GORDON V . COUNTY OF ORANGE 21
determine whether their presentation indicates the need for
medical treatment. Accord Lemire v. Cal. Dep’t of Corr. &
Rehab., 726 F.3d 1062, 1075–77 (9th Cir. 2013). It is
undisputed that upon admission into the general population,
Gordon’s identification module card notified jail officials
that he required medical attention. Because Deputy Denney
is entitled to qualified immunity, whether he in fact
conducted an adequate safety check will not be decided in
this case. However, law enforcement and prison personnel
should heed this warning because the recognition of this
constitutional right will protect future detainees.
II. Monell Liability
To impose Monell liability on a municipality under
Section 1983, plaintiff must prove: (1) Gordon had a
constitutional right of which he was deprived; (2) the
municipality had a policy; (3) the policy amounts to
deliberate indifference to his constitutional right; and
(4) “the policy is the moving force behind the constitutional
violation.” Dougherty v. City of Covina, 654 F.3d 892, 900
(9th Cir. 2011).
A governmental policy is “a deliberate choice to follow
a course of action . . . by the official or officials responsible
for establishing final policy with respect to the subject matter
in question.” Pembaur v. City of Cincinnati, 475 U.S. 469,
483 (1986). A plaintiff can satisfy Monell’s policy
requirement in one of three ways. See Thomas v. County of
Riverside, 763 F.3d 1167, 1170 (9th Cir. 2014) (per curiam).
First, a local government may be held liable when it acts
“pursuant to an expressly adopted official policy.” Id.
(citing Monell, 436 U.S. at 694); Lytle v. Carl, 382 F.3d 978,
982 (9th Cir. 2004).

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22 GORDON V . COUNTY OF ORANGE
Second, a public entity may be held liable for a
“longstanding practice or custom.” Thomas, 763 F.3d
at 1170 (citation omitted). Such circumstances may arise
when, for instance, the public entity “fail[s] to implement
procedural safeguards to prevent constitutional violations”
or, sometimes, when it fails to train its employees
adequately. Tsao v. Desert Palace, Inc., 698 F.3d 1128,
1143 (9th Cir. 2012) (citing Oviatt v. Pearce, 954 F.2d 1470,
1477 (9th Cir. 1992)); see also Connick v. Thompson,
563 U.S. 51, 61 (2011) (“A municipality’s culpability for a
deprivation of rights is at its most tenuous where a claim
turns on a failure to train.” (citation omitted)); Flores v.
County of Los Angeles, 758 F.3d 1154, 1159 (9th Cir. 2014)
(requiring a plaintiff asserting a claim based on a failure to
train to allege facts showing that defendants “disregarded the
known or obvious consequence that a particular omission in
their training program would cause municipal employees to
violate citizens’ constitutional rights”) (internal alterations
omitted) (quoting Connick, 563 U.S. at 61).
Third, “a local government may be held liable under
[Section] 1983 when ‘the individual who committed the
constitutional tort was an official with final policy-making
authority’ or such an official ‘ratified a subordinate’s
unconstitutional decision or action and the basis for it.’”
Clouthier v. County of Contra Costa, 591 F.3d 1232, 1250
(9th Cir. 2010) (quoting Gillette v. Delmore, 979 F.2d 1342,
1346–47 (9th Cir. 1992)), overruled on other grounds by
Castro, 833 F.3d at 1070).
Here, plaintiff’s Monell claim is premised on the
County’s alleged policies, customs, or practices. An
unconstitutional policy need not be formal or written to
create municipal liability under Section 1983; however, it
must be “so permanent and well settled as to constitute a

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GORDON V . COUNTY OF ORANGE 23
‘custom or usage’ with the force of law.” Adickes v. S.H.
Kress & Co., 398 U.S. 144, 167–68 (1970); see also Monell,
436 U.S. at 691 (unwritten policy or custom must be so
“persistent and widespread” that it constitutes a “permanent
and well settled” practice) (quoting Adickes, 398 U.S. at
167–68)). “Liability for improper custom may not be
predicated on isolated or sporadic incidents; it must be
founded upon practices of sufficient duration, frequency and
consistency that the conduct has become a traditional
method of carrying out policy.” Trevino v. Gates, 99 F.3d
911, 918 (9th Cir. 1996).
Because plaintiff did not identify any other instance in
which jail personnel used the CIWA protocol for inmates
withdrawing on opiate use or a low-visibility safety check
resulted in the provision of inadequate medical care, the
district court concluded that the Monell claim failed.
Generally, “a single incident of unconstitutional activity is
not sufficient to impose liability under Monell.” City of
Oklahoma City v. Tuttle, 471 U.S. 808, 823–24 (1985).
Where no argument exists that the express policies
themselves were unconstitutional, plaintiff was required to
produce evidence creating a triable issue of fact regarding
the existence of an unconstitutional practice or custom. See
Christie v. Iopa, 176 F.3d 1231, 1235 (9th Cir. 1999) (“A
single constitutional deprivation ordinarily is insufficient to
establish a longstanding practice or custom.”). However, the
record lacks evidence of any other event involving similar
conduct or constitutional violations and plaintiff’s reference
to the subsequent changes to operating procedures is
insufficient.7 Thus, the district court properly granted
7 Where post-event evidence is the fact of corrective action and no
other evidence is offered to demonstrate the existence of a custom, the
custom element is not satisfied. See, e.g., Chavez v. Las Vegas Metro.

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24 GORDON V . COUNTY OF ORANGE
summary judgment in favor of the County on plaintiff’s
claim for municipal liability.
CONCLUSION
For the reasons stated herein, the district court’s grant of
summary judgment is AFFIRMED as to Deputy Denney,
Nurse Garcia, Sergeant Tunque, and the County and
REVERSED and REMANDED as to defendant Nurse
Finley.
Police Dep’t, 648 F. App’x 657, 658 (9th Cir. 2016) (“[Plaintiff’s]
assertion that LVMPD revamped its use of force policy subsequent to
the shooting of Olivas, even if true, is insufficient to raise a triable issue
that at the time of the shooting LVMPD had a policy or practice of
tolerating constitutional violations.”) (citing Nadell v. Las Vegas Metro.
Police Dep’t, 268 F.3d 924, 930 (9th Cir. 2001), abrogated on other
grounds as recognized in Beck v. City of Upland, 527 F.3d 853, 862 n.8
(9th Cir. 2008)).

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