FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JONATHAN MICHAEL CASTRO,

Plaintiff-Appellee,

v.

COUNTY OF LOS ANGELES; LOS

ANGELES SHERIFF’S DEPARTMENT;

CHRISTOPHER SOLOMON; DAVID

VALENTINE, Sergeant, aka

Valentine,

Defendants-Appellants.

No. 12-56829

D.C. No.

2:10-05425-DSF

ORDER AND

OPINION

Appeal from the United States District Court

for the Central District of California

Dale S. Fischer, District Judge, Presiding

Argued and Submitted

December 11, 2014—Pasadena, California

Filed August 11, 2015

Before: Ronald Lee Gilman,* Susan P. Graber,

and Consuelo M. Callahan, Circuit Judges.

Order;

* The Honorable Ronald Lee Gilman, Senior United States Circuit Judge

for the Sixth Circuit, sitting by designation.
2 CASTRO V. COUNTY OF LOS ANGELES

Opinion by Judge Gilman;

Concurrence by Judge Callahan;

Partial Concurrence and Partial Dissent by Judge Graber

SUMMARY**

Civil Rights

The panel withdrew its prior opinion, concurrence, and

partial concurrence and partial dissent, filed May 1, 2015, and

published at 785 F.3d 336, and replaced it with an amended

opinion, concurrence and partial concurrence and partial

dissent.

The panel affirmed in part and reversed in part the district

court’s judgment, entered following a jury trial, in an action

brought under federal and state law by a pretrial detainee who

was attacked by another arrestee and suffered serious harm.

Plaintiff alleged that the County of Los Angeles, the Los

Angeles Sheriff’s Department County and individual

defendants were deliberatelyindifferent to the substantial risk

of harm created by housing him in the same sobering cell as

the other arrestee and by failing to maintain appropriate

supervision of the cell.

Affirming the judgment in favor of plaintiff against the

individual defendants, the panel held that defendants were not

entitled to qualified immunity because the right to be free

from violence at the hands of other inmates was well

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
CASTRO V. COUNTY OF LOS ANGELES 3

established and there was sufficient evidence for a jury to find

that the officials were deliberately indifferent to a substantial

risk of harm to plaintiff. The panel further found that there

was sufficient evidence for the punitive damages award.

Reversing the judgment in favor of plaintiff against the

entity defendants, the panel held that plaintiff’s claim under

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690–71 (1978),

was legally viable but insufficiently proven. The panel held

that although the entity defendants instituted a formal policy

under Monell with regard to designing the jail’s sobering cell,

there was insufficient that defendants had actual knowledge

of a risk to plaintiff’s safety. The panel stated that even

though a state regulation required Counties to install a

compliant audio-monitoring system to ensure that inmates

could easily summon help, there was no evidence presented

at trial that the entity defendants had actual, rather than

constructive, knowledge of the regulation.

The panel affirmed the jury’s future-damages award,

determining that plaintiff presented sufficient evidence

regarding the amount of his past damages from which a jury

could reasonably calculate the amount of future damages.

Concurring, Judge Callahan agreed that the judgment of

the district court against the individual defendants should be

affirmed and the judgment against the entity defendants

should be reversed. She wrote separately to explain that she

did not think that plaintiff had shown that the design of the

West Hollywood Station constituted a policy for purposes of

liability under Monell.

Concurring in part and dissenting in part, Judge Graber

joined the majority opinion as to the liability of the individual
4 CASTRO V. COUNTY OF LOS ANGELES

defendants. She dissented from the holding that there was

insufficient evidence from which the jury could have

concluded that the entity defendants were deliberately

indifferent to the risk that plaintiff would be harmed by a

fellow inmate. Judge Graber also wrote separately because,

in her view, the Supreme Court’s recent decision in Kingsley

V. Hendrickson, 135 S. Ct. 2466 (2015), called into question

the Circuit’s precedent on the appropriate state-of-mind

inquiry in failure-to-protect claims brought by pretrial

detainees.

COUNSEL

Melinda Cantrall (argued) and Thomas C. Hurrell, Hurrell

Cantrall LLP, Los Angeles, California, for DefendantsAppellants.

John Burton (argued), Law Offices of John Burton, Pasadena,

California; Maria Cavalluzzi, Cavalluzzi & Cavalluzzi, Los

Angeles, California; and Lawrence Lallande, Lallande Law

PLC, Long Beach, California, for Plaintiff-Appellee.
CASTRO V. COUNTY OF LOS ANGELES 5

ORDER

The opinion, concurrence, and partial concurrence and

partial dissent filed May 1, 2015, and published at 785 F.3d

336, are withdrawn and are replaced by the opinion,

concurrence, and partial concurrence and partial dissent filed

concurrently with this order. As the court’s opinion is

withdrawn, Appellants’ petition for panel rehearing and

petition for rehearing en banc is moot. Further petitions for

panel rehearing and for rehearing en banc may be filed.

OPINION

GILMAN, Senior Circuit Judge:

In October 2009, Jonathan Castro was arrested for being

drunk in public. He was housed in a “sobering cell” at the

Los Angeles Sheriff’s West Hollywood Station where, a few

hours after his arrest, he was savagely attacked by another

intoxicated arrestee who had been placed in the cell with him.

The officer on duty at the jail failed to respond to Castro’s

pounding on the cell door despite evidence that the officer

was well within range to hear the pounding. Castro suffered

serious harm, including a broken jaw and traumatic brain

injury.

This lawsuit was filed by Castro in the United States

District Court for the Central District of California in July

2010. He brought both federal- and state-law claims against

the County of Los Angeles, the Los Angeles County Sheriff’s

Department, and a number of John Doe defendants who were

later identified as two of his jailers. After a six-day trial, the
6 CASTRO V. COUNTY OF LOS ANGELES

jury returned a verdict for Castro against both the individual

and entity defendants, awarding him over $2.6 million in past

and future damages.

The defendants then renewed their joint motion for

judgment as a matter of law, arguing that there was

insufficient evidence to support the verdict, that the

individual defendants were entitled to qualified immunity,

and that Castro’s theory of liability against the County and

the Sheriff’s Department (these two entities being hereinafter

collectively referred to as the County) was simply untenable.

The district court denied the defendants’ motion without a

written opinion. They now appeal. For the reasons set forth

below, we AFFIRM the judgment of the district court against

the individual defendants but REVERSE the judgment

against the County.

I. BACKGROUND

A. Assault on Castro

Castro was arrested late in the evening of October 2, 

2009 for public drunkenness. The arresting officers reported

that Castro was staggering, bumping into pedestrians, and

speaking unintelligibly, so they arrested him “for his safety.”

He was transported to the West Hollywood Station and

placed in a fully walled sobering cell that was stripped of

objects with hard edges on which an inmate could hurt

himself if he lost his balance. The cell contained only a toilet

and a series of mattress pads on the floor. A short time later,

Jonathan Gonzalez was arrested after punching out a window

at a nightclub. The officers brought Gonzalez to the West

Hollywood Station, where he was placed in the same sobering
CASTRO V. COUNTY OF LOS ANGELES 7

cell that housed Castro. Gonzalez’s intake forms indicated

that he was “combative” at the time he was placed in the cell.

Shortly after Gonzalez was placed in the cell, Castro

approached the door and pounded on the window in the door

for a full minute, attempting to attract an officer’s attention.

No one responded. A community volunteer at the jail, Gene

Schiff, came by approximately 20 minutes later. He noted

that Castro appeared to be asleep and that Gonzalez was

“inappropriately” touching Castro’s thigh, the latter

circumstance being in violation of jail policy. Schiff did not

enter the cell to investigate. Instead, he reported the contact

to the supervising officer, Christopher Solomon. Solomon

took no action until he heard loud sounds six minutes later.

He rushed to the sobering cell and saw Gonzalez making a

violent stomping motion. Solomon immediately opened the

door and discovered that Gonzalez was stomping on Castro’s

head. Solomon ordered Gonzalez to step away from Castro.

Seeing that Castro was by then lying unconscious in a pool of

blood, Solomon called for medical assistance.

When the paramedics arrived, Castro was still

unconscious, in respiratorydistress, and turning blue. He was

hospitalized for almost a month, then transferred to a

long-term care facility, where he remained for four years. He

currently suffers from severe memory loss and permanent

cognitive impairments. Even after his release from the

long-term care facility, Castro remains incapable of

performing simple life functions, such as cooking and

maintaining hygiene. His family is responsible for his basic

care to this day.
8 CASTRO V. COUNTY OF LOS ANGELES

B. District court proceedings

After his complaint wasfiled, Castro substituted Solomon

and Solomon’s supervisor, Sergeant David Valentine, for the

John Doe defendants named in the original complaint.

Solomon was the jail’s officer on duty on the evening in

question and Valentine was the watch sergeant in charge of

the jail as a whole. Castro’s basic theory of liability under

42 U.S.C. § 1983 was that both the County and the individual

defendants were deliberatelyindifferent to the substantial risk

of harm created by housing him in the same sobering cell as

Gonzalez and by failing to maintain appropriate supervision

of the cell. The complaint also set forth a variety of state-law

claims, not one of which is raised by any party to this appeal.

The individual defendants moved to dismiss the claims

against them on the ground of qualified immunity, but the

district court rejected their arguments. It concluded that a

jury could find that placing an actively belligerent inmate in

an unmonitored cell with Castro constituted deliberate

indifference to a substantial risk of harm, in violation of

Castro’s constitutional rights.

The case proceeded to trial. After Castro rested his case,

the defendants moved for judgment as a matter of law on

three grounds: (1) insufficient evidence that the design of a

jail cell constitutes a policy, practice, or custom by the

County that resulted in a constitutional violation;

(2) insufficient evidence that a reasonable officer would have

known that housing Castro and Gonzalez together was a

violation of Castro’s constitutional rights; and (3) insufficient

evidence for the jury to award punitive damages. The district

court denied the motion in its entirety. Five days later, the

jury returned a verdict for Castro on all counts and awarded
CASTRO V. COUNTY OF LOS ANGELES 9

him $2,605,632.02 in damages. Based on the jury’s findings,

the parties later stipulated to $840,000 in attorney fees,

$12,000 in punitive damages against Valentine, and $6,000 in

punitive damages against Solomon.

After trial, the defendants timely filed a renewed motion

for judgment as a matter of law. The trial court denied the

renewed motion without issuing a written opinion. This

timely appeal followed.

II. ANALYSIS

A. Standard of review

We review de novo the district court’s denial of a motion

for judgment as a matter of law. Hangarter v. Provident Life

& Accident Ins. Co., 373 F.3d 998, 1005 (9th Cir. 2004). A

renewed motion for judgment as a matter of law is properly

granted only “if the evidence, construed in the light most

favorable to the nonmoving party, permits only one

reasonable conclusion, and that conclusion is contrary to the

jury’s verdict.” Pavao v. Pagay, 307 F.3d 915, 918 (9th Cir.

2002). “A jury’s verdict must be upheld if it is supported by

substantial evidence, which is evidence adequate to support

the jury’s conclusion, even if it is also possible to draw a

contrary conclusion.” Id.

In making this determination, the court must not weigh

the evidence, but should simply ask whether the plaintiff has

presented sufficient evidence to support the jury’s conclusion. 

Johnson v. Paradise Valley Unified Sch. Dist., 251 F.3d 1222,

1227–28 (9th Cir. 2001). Although the court must review the

entire evidentiary record, it must view all the evidence in the

light most favorable to the nonmoving party, draw all
10 CASTRO V. COUNTY OF LOS ANGELES

reasonable inferences in the favor of the nonmover, and

disregard all evidence favorable to the moving party that the

jury is not required to believe. Id. at 1227.

The defendants raise a number of issues on appeal,

ranging from discrete legal questions to disputed matters of

evidence. We first address the arguments raised by the

individual defendants, then move on to those presented by

the County.

B. Neither Solomon nor Valentine is entitled to qualified

immunity

Both individual defendants—Solomon and Valentine—

argue that the judgment against them should be reversed

because they are entitled to qualified immunity. The doctrine

of qualified immunity shields government officials from civil

liability under 42 U.S.C. § 1983 if “their conduct does not

violate clearly established statutory or constitutional rights of

which a reasonable person would have known.” Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). “Qualified immunity

balances two important interests—the need to hold public

officials accountable when they exercise power irresponsibly

and the need to shield officials from harassment, distraction,

and liability when they perform their duties reasonably.”

Pearson v. Callahan, 555 U.S. 223, 231 (2009).

To determine whether an officer is entitled to qualified

immunity, a court must evaluate two independent prongs:

(1) whether the officer’s conduct violated a constitutional

right, and (2) whether that right was clearly established at the

time of the incident. Id. at 232. These prongs may be

addressed in either order. Id. at 236.
CASTRO V. COUNTY OF LOS ANGELES 11

The constitutional right at issue in this case is the right to

be free from violence at the hands of other inmates. This

right was first recognized by the Supreme Court in Farmer v.

Brennan, 511 U.S. 825 (1994). In Farmer, a male-to-female

transgender person was placed in male housing in the federal

prison system, where she was beaten and raped by another

inmate. Id. at 830. She brought a civil rights action for

damages and an injunction, alleging that the corrections

officers had acted with deliberate indifference to her safety,

in violation of the Eighth Amendment. Id. at 830–31. The

Supreme Court agreed with her, holding that “prison officials

have a duty . . . to protect prisoners from violence at the

hands of other prisoners” because corrections officers have

“stripped [the inmates] of virtually every means of

self-protection and foreclosed their access to outside aid.” Id.

at 833 (internal quotation marks omitted). This court has

since clarified that the right to be free from violence at the

hands of other inmates extends to inmates housed in state or

local custody. See Cortez v. Skol, 776 F.3d 1046, 1049–50

(9th Cir. 2015) (recognizing a claim based on Farmer brought

by a state prisoner).

Both Solomon and Valentine acknowledge that the duty

to protect Castro from violence was clearly established at the

time of the incident. But they argue that such a broad

definition of that duty is too general to guide this court’s

analysis. Moreover, they contend that Castro failed to present

substantial evidence to establish that they violated their duty

to protect him.

“To determine that the law was clearly established, we

need not look to a case with identical or even ‘materially

similar’ facts.” Serrano v. Francis, 345 F.3d 1071, 1077 (9th

Cir. 2003) (quoting Hope v. Pelzer, 536 U.S. 730, 739–41
12 CASTRO V. COUNTY OF LOS ANGELES

(2002)). The question instead is whether the contours of the

right were sufficiently clear that a reasonable official would

understand that his actions violated that right. Id.; see also

Saucier v. Katz, 533 U.S. 194, 202 (2001).

Following the Supreme Court’s 1994 decision in Farmer,

this court has considered over 15 different failure-to-protect

claims stemming from inmate-on-inmate violence. In each

case, the court has recited the standard established by

Farmer, then proceeded to apply that standard to the facts of

the case before the court. The similarity of the facts—or the

lack thereof—to other post-Farmer cases has rarely entered

the discussion. See, e.g., Robinson v. Prunty, 249 F.3d 862,

866–67 (9th Cir. 2001).

Instead, the right at issue is construed simply as the right

to be protected from attacks by other inmates. This is in stark

contrast with the qualified-immunity analysis for other types

of claims, such as excessive force, in which analogies to prior

cases play a much stronger role. See Maxwell v. Cnty. of San

Diego, 708 F.3d 1075, 1082–83 (9th Cir. 2013); Winterrowd

v. Nelson, 480 F.3d 1181, 1185–86 (9th Cir. 2007);

Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d

1052, 1056–61 (9th Cir. 2003). In sum, Farmer sets forth the

contours of the right to be free from violence at the hands of

other inmates with sufficient clarity to guide a reasonable

officer. Solomon and Valentine’s argument on this point is

therefore without merit.

They next question the sufficiency of the evidence

supportingCastro’s claim of deliberate indifference. Because

Castro was a pretrial detainee, his right to be free from

violence at the hands of other inmates arises from the

Fourteenth Amendment rather than the Eighth Amendment. 
CASTRO V. COUNTY OF LOS ANGELES 13

See Gibson v. County of Washoe, 290 F.3d 1175, 1187 (9th

Cir. 2002). Despite those different constitutional sources, the

“deliberate indifference” test is the same for pretrial detainees

and for convicted prisoners. Clouthier v. County of Contra

Costa, 591 F.3d 1232, 1242 (9th Cir. 2010) (explaining that

“neither [the Ninth Circuit] nor the Supreme Court ha[s]

departed from the standard set forth in Bell and Farmer for

considering pretrial detainees’ claims that government

officials violated their Fourteenth Amendment rights by

failing to prevent harm”).

Our dissenting colleague, however, believes that the

Supreme Court’s recent decision in Kingsley v. Hendrickson,

135 S. Ct. 2466 (2015), calls the law on this point into

question. She argues that “Kingsley undermines Clouthier”

because the Fourteenth Amendment provides substantively

different protections than the Eighth Amendment, such that

different standards may now apply to claims brought by

pretrial detainees as opposed to convicted prisoners. 

Dissenting Op. at 43–46.

We find at least two flaws in the dissent’s analysis. First

and foremost, Kingsley itself acknowledges that it does not

necessarily impose different standards for claims brought

under the Eighth Amendment as opposed to the Fourteenth

Amendment; it addresses only the rights of pretrial detainees

under the Fourteenth Amendment without passing judgment

on parallel rights that may be possessed by convicted

prisoners under the Eighth Amendment. See Kingsley, 135 S.

Ct. at 2476 (“We acknowledge that our view that an objective

standard is appropriate in the context of excessive force

claims brought by pretrial detainees pursuant to the

Fourteenth Amendment may raise questions about the use of

a subjective standard in the context of excessive force claims
14 CASTRO V. COUNTY OF LOS ANGELES

brought by convicted prisoners. We are not confronted with

such a claim, however, so we need not address that issue

today.”). For this same reason, we disagree with our

dissenting colleague’s view that Clouthier’s reading of Bell

v. Wolfish, 441 U.S. 520, 535 (1979), “cannot survive

Kingsley.” Dissenting Op. at 46.

Second, even if Kingsley did establish different standards

for excessive-force claims brought by pretrial detainees as

opposed to convicted prisoners, such a holding would have no

bearing on the failure-to-protect claims presented here and in

Clouthier. The dissent acknowledges that “[t]here are

important differences between excessive force and failure-toprotect claims,” but nonetheless believes that the fact that

they are drawn from the same constitutional sources—the 

Eighth and Fourteenth Amendments—is sufficient to

overcome those differences. Dissenting Op. at 45. We

respectfully disagree.

The standard for a failure-to-protect claim—deliberate

indifference to a substantial risk of serious harm—is

completely different from the standard for an excessive-force

claim. For years, the Supreme Court has held that the focus

of any excessive-force claim, whether brought under the

Eighth Amendment or the Fourteenth Amendment, is on the

reasonableness of an officer’s actions rather than on whatever

thoughts, knowledge, or motivation may have driven those

actions. See Graham v. Connor, 490 U.S. 386, 397 (1989) 

(holding that “the question [in an excessive-force claim] is

whether the officers’ actions are ‘objectively reasonable’ in

light of the facts and circumstances confronting them, without

regard to their underlying intent or motivation,” such that

“[a]n officer’s evil intentions will not make a [constitutional]

violation out of an objectively reasonable use of force; nor
CASTRO V. COUNTY OF LOS ANGELES 15

will an officer’s good intentions make an objectively

unreasonable use of force constitutional.”).

Failure-to-protect claims, however, involve no affirmative

act at all by the defendant. The Supreme Court thus requires

lower courts to consider more than just the simple fact of

inaction; we must also assess what was going on inside the

defendant’s mind that led to his failure to act. See Farmer v.

Brennan, 511 U.S. 825, 837 (1994) (holding that in order for

a defendant to be deemed “deliberately indifferent” to a

particular risk, he “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.”). We

believe that this substantive difference is more significant

than the common constitutional source.

In short, Kingsley does not establish that excessive-force

claims brought under the Fourteenth Amendment are

governed by a different standard than excessive-force claims

brought under the Eighth Amendment. And even if it did, as

the dissent acknowledges, we would not be authorized to

extend that distinction to the substantively different failureto-protect claim presented both here and in Clouthier without

express instructions from the Supreme Court to do so. See

Agostini v. Felton, 521 U.S. 203, 207 (1997) (“The Court

neither acknowledges nor holds that other courts should ever

conclude that its more recent cases have, by implication,

overruled an earlier precedent. Rather, lower courts should

follow the case which directly controls, leaving to this Court

the prerogative of overruling its own decisions.”).

Accepting, then, that Clouthier remains good law, Castro

was required to show by a preponderance of the evidence that

(1) he faced a substantial risk of serious harm, (2) the
16 CASTRO V. COUNTY OF LOS ANGELES

defendants were deliberately indifferent to that risk, and

(3) the defendants’ failure to act was a proximate cause of the

harm that he suffered. See Farmer, 511 U.S. at 847. A

defendant is deemed “deliberatelyindifferent” to a substantial

risk of serious harm when he knew of the risk but disregarded

it by failing to take reasonable measures to address the

danger. Id.

In the case before us, the jury specifically found on the

verdict form that both Solomon and Valentine were

deliberately indifferent to Castro’s plight. In his brief on

appeal, Castro notes several different ways in which Solomon

and Valentine were deliberately indifferent to his risk of

harm: both decided to house him in a fully walled sobering

cell with a “combative” inmate; Solomon failed to respond to

Castro’s banging on the window in the door of the cell;

Solomon failed to respond fast enough to Gonzalez’s

inappropriate touching; and Solomon erred in delegating the

safety checks to a volunteer. We conclude that the jury could

have found Solomon and Valentine liable based on the

substantial evidence presented in support of one or more of

these theories.

1. The jury could have found that Solomon was

deliberately indifferent to a substantial risk of harm

to Castro because he disregarded Castro’s pounding

on the cell door

Castro’s most persuasive theoryof deliberate indifference

with respect to Solomon stems from Solomon’s failure to

respond when Castro pounded on the door after Gonzalez was

placed in the cell. Video footage presented at trial established

that Castro pounded on the door for a full minute after

Gonzalez entered the cell. Solomon was near the cell at the
CASTRO V. COUNTY OF LOS ANGELES 17

time, but testified that he did not hear the pounding. Solomon

also contends that the video footage of the event shows that

he “did not appear to hear any banging on the door by

plaintiff.” Three other witnesses, however, including two jail

employees, testified that one could hear simple talking from

inside the sobering cell, such that pounding would have been

easy to hear from where Solomon was standing.

Faced with this evidence, the jury could have reasonably

concluded that Solomon heard the pounding and elected not

to respond. “[A] jury may properly refuse to credit even

uncontradicted testimony.” Guy v. City of San Diego,

608 F.3d 582, 588 (9th Cir. 2010) (citing Quock Ting v.

United States, 140 U.S. 417, 420–21 (1891)). Here, the jury

was presented with circumstantial evidence that undermined

Solomon’s assertion that he did not hear the pounding.

But Solomon contends in his brief that we are free to

“disregard inferences in favor of the prevailing party where

they are belied by a video account in the record,” citing Scott

v. Harris, 550 U.S. 372, 380–81 (2007). In this case,

however, the video footage neither confirms nor refutes

Solomon’s account. The jury had the opportunity to review

both the footage and the testimony in context, and to perform

a full assessment of each witness’s credibility. Given the

testimony of three other witnesses, the jury had sufficient

evidence to conclude that Solomon heard but ignored

Castro’s attempts to attract attention. On appeal, we “may

not substitute [our] view of the evidence for that of the jury.”

Johnson v. Paradise Valley Unified Sch. Dist., 251 F.3d 1222,

1227 (9th Cir. 2001).

We thus reach the question of whether Solomon’s failure

to respond to Castro’s banging constituted deliberate
18 CASTRO V. COUNTY OF LOS ANGELES

indifference. The jury determined that it did. This court has

long held that whether or not a prison official’s actions

constitute deliberate indifference is a subjective inquiry and

a question of fact. Grenning v. Miller-Stout, 739 F.3d 1235,

1239 (9th Cir. 2014) (citing Johnson v. Lewis, 217 F.3d 726,

734 (9th Cir. 2000)). Because questions of fact are uniquely

the province of the jury, see Santos v. Gates, 287 F.3d 846,

852 (9th Cir. 2002), its determination must stand when

supported by substantial evidence, see Pavao v. Pagay,

307 F.3d 915, 918 (9th Cir. 2002).

This leads to the issue of whether Solomon’s deliberate

indifference was both an actual and a proximate cause of

Castro’s harm. See Lemire v. Cal. Dep’t of Corr. & Rehab.,

726 F.3d 1062, 1074 (9th Cir. 2013) (holding that “plaintiffs

alleging deliberate indifference must also demonstrate that

the defendants’ actions were both an actual and proximate

cause of their injuries”). Actual causation is “purely a

question of fact,” Robinson v. York, 566 F.3d 817, 825 (9th

Cir. 2009), and the jury determined that Solomon’s deliberate

indifference was in fact one of the causes of Castro’s harm.

But Solomon argues that this finding is unsupported by

the evidence because Castro did not appear to be injured

during a safety check performed 22 minutes after the

pounding stopped. His proposed restriction on the relevant

timeline for causation, however, does not comport with this

court’s prior rulings. See, e.g., Conn v. City of Reno,

591 F.3d 1081, 1098–1101 (9th Cir. 2010)) (holding that a

corrections officer’s failure to respond to warnings of harm

could be an actual cause of that inmate’s suicide 48 hours

later), vacated, 131 S. Ct. 1812 (2011), reinstated in relevant

part, 658 F.3d 897 (9th Cir. 2011). Because Solomon has

presented no compelling reason to adopt his proposed
CASTRO V. COUNTY OF LOS ANGELES 19

arbitrary time limitation, we decline to do so. The jury’s

verdict on actual causation is supported bysufficient evidence

to remain undisturbed.

“‘Once it is established that the defendant’s conduct has

in fact been one of the causes of the plaintiff’s injury, there

remains the question whether the defendant should be legally

responsible for the injury.’” Id. at 1100 (quoting White v.

Roper, 901 F.2d 1501, 1506 (9th Cir. 1990)). A corrections

officer will be held legally responsible for an inmate’s

injuries if the officer’s actions are a “moving force” behind a

series of events that ultimately lead to a foreseeable harm,

even if other intervening causes contributed to the harm. Id.

at 1101. If reasonable persons could differ over the question

of foreseeability, that issue should be left to the jury. Id.

This court’s prior cases are instructive. In Conn, for

example, this court found that a corrections officer’s failure

to respond to an inmate’s attempt to choke herself and to her

subsequent threats of suicide could be considered a proximate

cause of her suicide two days after the threats, even though

she was subjected to several medical examinations between

the time of the threats and the time of her death. Id. at

1101–02. The question of foreseeability was left to the jury. 

Id. Similarly, the court in White concluded that a corrections

officer’s decision to forcibly place an inmate (the plaintiff)

into a cell with another, violent inmate could be considered

a “moving force” behind the injury that the plaintiff suffered

when he attempted to run, such that the question should have

been sent to a jury. White, 901 F.2d. at 1506. Here, the jury

found that Solomon’s deliberate indifference was one of the

causes of Castro’s harm. Leaving that decision to the jury is

in concert with this court’s prior opinions.
20 CASTRO V. COUNTY OF LOS ANGELES

Farmer clearly established that a corrections officer has

a duty to act to protect one inmate from violence at the hands

of another. The jury was presented with sufficient evidence

to find that Solomon was aware of but disregarded Castro’s

attempts to alert Solomon to the danger faced byCastro. And

the jury determined that Solomon’s deliberate indifference

was both an actual and a proximate cause of Castro’s harm. 

Even if we might have reached a different conclusion when

considering the totality of the circumstances, there is

sufficient evidence to support the jury’s verdict on this issue.

2. The jury could have found that Valentine was

deliberately indifferent to a substantial risk of harm

to Castro when he placed Gonzalez in Castro’s cell

We next turn to Sergeant Valentine. The parties agree

that Valentine may be held liable only for his own actions.

Vicarious liability does not apply to claims brought under

§ 1983, so Valentine may not be held independently

responsible for the actions of his subordinates. See Ashcroft

v. Iqbal, 556 U.S. 662, 676 (2009). Valentine was not in the

immediate vicinity of the sobering cell for most of the events

at issue in this case. The only relevant event for which he

was present was the initial decision to house Gonzalez in the

sobering cell with Castro, so we will focus our analysis on

that decision.

Valentine argues that he is entitled to qualified immunity

because a reasonable officer at the time of the incident would

not have known that housing Gonzalez in the same cell as

Castro would violate Castro’s constitutional rights. He relies

heavily on Estate of Ford v. Ramirez-Palmer, 301 F.3d 1043

(9th Cir. 2002), to support this argument. In Ford, a group of

prison officials decided to house the plaintiff with another
CASTRO V. COUNTY OF LOS ANGELES 21

inmate who had been classified as a “predator” after several

past incidents of assault on his cellmates. Id. at 1046–47. 

Two days later, the “predator” inmate attacked and killed the

plaintiff. Id. at 1047.

The predatory inmate in Ford, however, “had been

successfully double-celled for years with other inmates” and

had not been recommended for “single-celling” by the prison

staff. Id. at 1051. Moreover, the plaintiff and the predator in

Ford consented to be housed together. Id. at 1047. They had

previously been housed together without incident, and there

was no history of violence between them. Id. Based on that

history, this court found that “it would not be clear to a

reasonable prison official when the risk of harm from

double-celling . . . changes from being a risk of some harm to

a substantial risk of serious harm.” Id. at 1051. (emphases in

original). The court therefore held that the official was

entitled to qualified immunity. Id. at 1053.

Ford’s central holding is that an officer is entitled to

qualified immunity when the transition from a risk of some

harm to a substantial risk of serious harm would not have

been clear to a reasonable prison official. “[T]he qualitative

difference between the degree of risk that will result in

liability under the Eighth Amendment’s standard, and that

which will not, is a fact-bound inquiry,” requiring deference

to the trier of fact. A.D. v. Cal. Highway Patrol, 712 F.3d

446, 455 n.4 (9th Cir. 2013). Here, a jury has already

weighed in and found that Valentine was aware of and

disregarded not merely a risk of some harm, but a substantial

risk of serious harm to Castro.

Ford was not a case of two intoxicated strangers being

thrown together in the middle of the night, but rather a calm,
22 CASTRO V. COUNTY OF LOS ANGELES

reasoned decision made with the input of all the affected

parties. Faulting a prison official for disregarding some risk

of harm is difficult when the victim himself consented to the

risk. Castro, on the other hand, did not consent to being

housed with Gonzalez. Gonzalez and Castro had no history

together, so Valentine had no basis to conclude that the risk

of an altercation was minimal. Although Gonzalez had a

lesser history of violence in general than the predator inmate

in Ford, Gonzalez’s combative nature when placed in the cell

was in no way mitigated by any prior interaction with Castro.

At the end of the day, this is a fact-specific inquiry. The

jury heard evidence that Gonzalez presented a sufficient

threat to cause him to be supervised by two officers at all

times following his arrest, one of whom was consistently in

contact with him. They also heard that, pursuant to jail policy,

combative inmates such as Gonzalez were to be housed

separately from inmates like Castro, specifically to avoid this

type of altercation. The jury was further informed that

separate cells were available but left unused that evening.

This evidence was sufficient to allow the jury to find that

Valentine knew of but disregarded a substantial risk of

serious harm to Castro, and we find no reason to disturb that

finding. See id. at 459 (“[P]ost-verdict, a court must apply the

qualified immunity framework to the facts that the jury found

(including the defendant’s subjective intent).”). Such a

conclusion does not run afoul of this court’s holding in Ford

because of the key factual differences between the two cases.

As with Solomon, the final question then becomes

whether Valentine’s actions were both an actual and a

proximate cause of Castro’s harm. The jury determined that

they were and, for the reasons discussed above, we will not
CASTRO V. COUNTY OF LOS ANGELES 23

set aside that determination. Valentine is therefore not

entitled to qualified immunity and may be subjected to

liability for his personal involvement in the decision to house

Gonzalez and Castro together.

C. For the purpose of awarding punitive damages, no

additional evidence is required to make a finding of

“reckless disregard” when a finding of “deliberate

indifference” has been made

The individual defendants cursorily argue that the district

court’s award of punitive damages must be reversed because

the evidence does not support such an award. Although the

parties stipulated to the eventual amount of the punitive

damages entered ($12,000 against Valentine and $6,000

against Solomon), the defendants argued in both their preand post-verdict motions for judgment as a matter of law that

there was insufficient evidence to support a punitive-damages

award. Castro counters that, after hearing the officers testify,

the jury might have determined that they demonstrated

callousness by their lack of remorse.

Punitive damages may be assessed in § 1983 actions

“when the defendant’s conduct is shown to be motivated by

evil motive or intent, or when it involves reckless or callous

indifference to the federally protected rights of others.” 

Smith v. Wade, 461 U.S. 30, 56 (1983). “[T]his threshold

applies even when the underlying standard of liability for

compensatory damages is one of recklessness,” id., because

to award punitive damages, the jurymust make both a factual

determination that the threshold was met and “a moral

judgment” that further punishment was warranted, id. at

52–53 (recognizing that where the underlying standard of

liability is recklessness, a tortfeasor may be subject to both
24 CASTRO V. COUNTY OF LOS ANGELES

compensatory and punitive damages without any additional

culpable conduct). The decision to impose such sanctions is

“within the exclusive province of the jury.” Runge v. Lee,

441 F.2d 579, 584 (9th Cir. 1971).

The precise distinction between “deliberate indifference”

and “reckless or callous indifference” remains an open

question. As discussed above, “deliberate indifference” is

defined in this circuit as “the conscious choice to disregard

the consequences of one’s acts or omissions.” See 9th Cir.

Civ. Jury Instr. 9.7 (2007). Furthermore, when the Supreme

Court articulated the deliberate-indifference standard for

failure-to-protect claims in Farmer, it defined the standard as

one of criminal recklessness. See Farmer, 511 U.S. at

837–39. The circular nature of these definitions gives rise to

the inference that the terms are synonymous. Juries in these

cases thus have the discretion to impose punitive damages if

they believe further punishment above and beyond

compensatory damages is appropriate, without having to

make any additional factual findings. See Smith, 461 U.S. at

56.

As described above, the jury heard sufficient evidence

here to find that both individual defendants were deliberately

indifferent. Accordingly, it was also free to find that the

individual defendants’ actions constituted reckless or callous

indifference, opening up the possibility of punitive damages.

The jury rendered such a judgment here. Because this

decision is “within the exclusive province of the jury” so long

as the legal prerequisites are met, we will allow the lower

court’s punitive-damage award to stand. See Runge, 441 F.2d

at 584.
CASTRO V. COUNTY OF LOS ANGELES 25

D. Castro’s Monell claim is legally viable but

insufficiently proven

We turn next to the issues raised by the County in this

appeal. The County argues that the verdict against it should

be reversed for the following three reasons: (1) the Eleventh

Amendment bars a finding of liability; (2) if Castro’s theory

of liability is based on the County’s having an informal policy

that violated his constitutional rights, then his theory fails

because there was no evidence presented of any similar prior

incidents; and (3) if Castro’s theory of liability is based on the

County’s having a formal policy that violated his

constitutional rights, then his theory is legally untenable.

We begin our analysis by addressing a few fundamental

points regarding municipal liability under 42 U.S.C. § 1983. 

The first point is that although § 1983 imposes liability only

on “persons” who, under color of law, deprive others of their

constitutional rights, the Supreme Court has construed the

term “persons” to include municipalities such as the County. 

See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690–91

(1978). A municipality is responsible for a constitutional

violation, however, only when an “action [taken] pursuant to

[an] official municipal policy of some nature” caused the

violation. Id. at 691. This means that a municipality is not

liable under § 1983 based on the common-law tort theory of

respondeat superior. Id. On the other hand, the official

municipal policy in question may be either formal or

informal. City of St. Louis v. Praprotnik, 485 U.S. 112, 131

(1989) (plurality opinion) (acknowledging that a plaintiff

could show that “a municipality’s actual policies were

different from the ones that had been announced”); id. at 138

(Brennan, J., concurring) (stating that municipal policies may

be formal or informal).
26 CASTRO V. COUNTY OF LOS ANGELES

A formal policy exists when “a deliberate choice to

follow a course of action is made from among various

alternatives 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) (plurality opinion). When pursuing a Monell claim

stemming from a formal policy, a plaintiff must prove that the

municipality “acted with the state of mind required to prove

the underlying violation.” Tsao v. Desert Palace, Inc.,

698 F.3d 1128, 1143–44 (9th Cir. 2012) (internal quotation

marks omitted) (explaining that the plaintiff must prove that

the municipal defendants acted with deliberate indifference,

the same standard that a plaintiff has to establish in a § 1983

claim against an individual defendant).

An informal policy, on the other hand, exists when a

plaintiff can prove the existence of a widespread practice that,

although not authorized by an ordinance or an express

municipal policy, is “so permanent and well settled as to

constitute a custom or usage with the force of law.”

Praprotnik, 485 U.S. at 127 (internal quotation marks

omitted). Such a practice, however, cannot ordinarily be

established by a single constitutional deprivation, a random

act, or an isolated event. Christie v. Iopa, 176 F.3d 1231,

1235 (9th Cir. 1999). Instead, a plaintiff such as Castro must

show a pattern of similar incidents in order for the factfinder

to conclude that the alleged informal policy was “so

permanent and well settled” as to carry the force of law. See

Praprotnik, 485 U.S. at 127.

The County’s first two arguments can be quickly and

easily addressed. First, the claim that the County is protected

from suit by the Eleventh Amendment was squarely

considered and rejected by this court in Jackson v. Barnes,
CASTRO V. COUNTY OF LOS ANGELES 27

749 F.3d 755, 764–65 (9th Cir. 2014), cert. denied, 135 S. Ct.

980 (2015) (holding that a sheriff’s department is a county

actor when it investigates crime and supervises a jail, and

thus is not protected by the Eleventh Amendment’s blanket

of immunity for state officials). The County therefore cannot

seek refuge behind the Eleventh Amendment. Second, and in

the County’s favor, the record is devoid of any similar

incident to that suffered byCastro. He thus failed to establish

that the County had an informal policy in relation to the

sobering cell that caused him harm. The County’s liability

thus hinges on its final argument, which boils down to

(1) whether the design of the sobering cell constitutes a

formal County policy and, if so, (2) whether the County was

deliberately indifferent to the harm that befell Castro as a

result of that formal policy.

1. The jail’s design was a deliberate choice by the

County and thus a formal policy

We cannot envision how a municipality can design a jail

without making “a deliberate choice . . . from among various

alternatives.” See Pembaur, 475 U.S. at 483. Construction

projects of any variety involve a series of such choices based

on aesthetics, functionality, budget, and other factors. One

would assume that for any given construction project,

including jails, the municipality’s governing body—or a

committee that it appoints to act in its stead—reviews bids,

considers designs, and ultimately approves a plan for the

facility and allocates funds for its construction. These

choices are sufficient, in our opinion, to meet the definition

of a formal municipal policy as set forth in Pembaur.

We are unpersuaded by the cases cited by the County in

support of its argument to the contrary. See Molton v. City of
28 CASTRO V. COUNTY OF LOS ANGELES

Cleveland, 839 F.2d 240, 246 (6th Cir. 1988); Elliott v.

Cheshire Cnty., 750 F. Supp. 1146, 1156 (D. N.H. 1990),

aff’d in part and vacated in part, 940 F.2d 7 (1st Cir. 1991);

Shouse v. Daviess Cnty., No. 4:06-cv-144-M, 2009 WL

424978, at *8 (W.D. Ky. Feb. 19, 2009) (unpublished);

Richardson v. Dailey, No. 925996, 1994 WL 879483, at *3

(Mass. Super. Ct. Sept. 29, 1994) (unpublished), aff’d,

424 Mass. 258 (1997). Of these cases, Molton is the only one

to provide more than a cursory analysis of the jaildesign-as-policy issue.

In Molton, an inmate hung himself by his shirt in his cell

while his fellow inmates screamed for help. 839 F.2d at

242–43. The administrator of the decedent’s estate sued the

city under § 1983, alleging that the jail was defectively

designed, creating a substantial risk of suicides. Id. at 243.

The jury returned a verdict in favor of the estate. Id. On

appeal, the city argued that the estate had failed to prove the

existence of a municipal policy that caused the suicide. Id. at

247. The estate responded by pointing out several factors

contributing to his injury that were “inherentlymatters of city

policy,” including the operation of a jail with a cell block that

was too remote for easy supervision, the failure to install an

audio communication system between the cell block and the

office area, and the failure to modify cell architecture to make

suicides less likely. Molton, 839 F.2d at 246.

In ruling against the estate, the Sixth Circuit found two

problems with the estate’s argument: (1) Supreme Court

caselaw requires a plaintiff to identify a “deliberate and

discernible city policy” rather than a series of vague issues

with the way the city runs its jail, and (2) the evidence

produced by the estate supported, at most, a finding that the

city acted negligently in designing the jail. Id. The court in
CASTRO V. COUNTY OF LOS ANGELES 29

Molton concluded that the city’s “failure to build a

suicide-proof jail cell” did not constitute “a deliberate choice

to follow a course of action” that would be required to impose

Monell liability. Id. (internal quotation marks omitted).

Elliott, Shouse, and Richardson relied on Molton in reaching

similar conclusions.

Molton, however, did not address the series of deliberate

choices made by the city that went into the design of the jail

itself. See id. The Sixth Circuit instead considered the

“deliberate choice” question only with regard to whether the

design was deliberately indifferent to a risk to the inmates (as

opposed to whether the design was simply negligent). Id.

To the contrary, we conclude that the question of whether

the design of a jail can lead to a constitutional violation (i.e.,

whether it constituted deliberate indifference on the part of

the municipality) is a separate question from the issue of

whether the design can be considered a formal policy for

Monell purposes (i.e., whether the design was a deliberate

choice made by a policymaker among a series of

alternatives). With all due respect to our sister circuit, we

cannot ignore the plethora of deliberate choices that a

municipality makes in designing a jail, and we conclude that

those choices render the design a formal municipal policy for

the purpose of Monell liability.

The design of a jail, in sum, is the result of a series of

deliberate choices made by the municipality that built it. In

this case, the County does not contest that it was responsible

for the design and operation of the West Hollywood Station.

We therefore hold that the County instituted a formal policy

under Monell with regard to the jail’s sobering cell.
30 CASTRO V. COUNTY OF LOS ANGELES

2. To find that a municipality was deliberately

indifferent to a risk, a plaintiff must prove that the

municipality had actual knowledge of that risk

Having determined that the County’s design of the West

Hollywood Station’s sobering cell constituted a formal

municipal policy, we turn next to the issue of whether that

policy violated Castro’s constitutional rights. Castro alleged

that the County’s policy deprived him of the same

constitutional right that was violated by the individual

defendants—his right to be free from violence at the hands of

other inmates. As with the individual defendants, Castro

must demonstrate that (1) he faced a substantial risk of

serious harm, (2) the County, knowing of the risk, showed

deliberate indifference byfailing to take reasonable corrective

measures, and (3) the County’s failure to mitigate the risk

was a proximate cause of the harm that he suffered. See

Farmer, 511 U.S. at 828, 842.

At trial, Castro presented evidence establishing that the

state of California had in place a regulation aimed at

preventing the very type of harm suffered by Castro. Title 24

of California’s Minimum Standards for Local Detention

Facilities defines a “sobering cell” as “an initial ‘sobering up’

place for arrestees who are sufficiently intoxicated from any

substance to require a protected environment to prevent injury

by falling or victimization by other inmates.” Cal. Code

Regs. tit. 15, § 1006 (emphasis added). In addition,

California’s Minimum Standards for Adult Detention

Facilities provides that “there shall be an inmate- or

sound-actuated audio monitoring system in . . . sobering cells

. . . which is capable of alerting personnel who can respond

immediately.” Id. tit. 24, § 1231.2.22 (emphasis added).
CASTRO V. COUNTY OF LOS ANGELES 31

The plain text of this regulation clearly indicates that the

state regulators were concerned about inmate-on-inmate

violence and required counties to install a compliant

audio-monitoring system in order to ensure that the inmates

could easily summon help. West Hollywood Station’s

sobering cell did not have such an audio-monitoring system

in place.

Castro argues that, because of the regulation, the County

knew of the risk that inmates in a sobering cell face from

other inmates but disregarded that risk by failing to take the

precautions required by the regulations. The County, on the

other hand, argues that there was no evidence presented at

trial establishing that it was aware of the regulation. In the

absence of such evidence, the County contends that no

reasonable jury could have concluded that it knew of the risk

to Castro.

Both sides—and, in our view, the dissent—have muddled

the issue of knowledge by failing to distinguish between

actual versus constructive knowledge. The law has long

recognized a distinction between constructive knowledge

(i.e., what a reasonable person should have known in a given

situation) and actual knowledge (i.e., what a particular person

did in fact know in the same situation). See, e.g., Han v.

United States, 944 F.2d 526, 530 (9th Cir. 1991) (reversing

the grant of summary judgment in favor of the IRS because

the taxpayer had only constructive knowledge rather than

actual knowledge of a lien on his property); McGinn v. City

of Omaha, 352 N.W.2d 545, 547 (Neb. 1984) (per curiam)

(holding that a city could be held liable for personal injuries

sustained as a result of its negligence, even in the absence of

actual knowledge, if it had the knowledge that a reasonable

person would have possessed under the circumstances). 
32 CASTRO V. COUNTY OF LOS ANGELES

Constructive knowledge is an objective standard, see Rost v.

United States, 803 F.2d 448, 451 (9th Cir. 1986), whereas

actual knowledge is a subjective standard, see Bus. Guides,

Inc. v. Chromatic Commc’ns Enterps., Inc., 892 F.2d 802,

810 (9th Cir. 1989), aff’d, 498 U.S. 533 (1991).

The Supreme Court has previously determined that

subjective (i.e., actual) knowledge is required in order to

impose liability under a failure-to-protect claim. In Farmer,

the Court held specifically that for liability to attach based on

a defendant’s failure to protect a plaintiff from harm, the

defendant “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.” Farmer,

511 U.S. at 837. In adopting this test for deliberateindifference claims, the Supreme Court specifically rejected

an objective standard of knowledge (i.e., constructive

knowledge) for these claims. Id. Even the dissent

acknowledges that Kingsley did not overrule Farmer or

otherwise question the existing test for deliberate-indifference

claims against the individual defendants. Dissenting Op. at

44, n. 4.

Farmer recognized that “conceptual difficult[ies may]

attend any search for the subjective state of mind of a

governmental entity,” id. at 841, but these difficulties are not

insurmountable. A plaintiff could take any of several paths

to prove that a municipality had actual knowledge of a

substantial risk of serious harm to inmates. For example,

where, as here, there is an applicable regulation that should

have put the municipality on notice of the risk, a plaintiff

could offer evidence that the municipality had been notified

that it was out of compliance with the regulation. Other

evidence, such as meeting minutes or other records, that the
CASTRO V. COUNTY OF LOS ANGELES 33

regulation was discussed at planning meetings would also

suffice, as would evidence that similar incidents had occurred

and been brought to the municipality’s attention. Regardless

of its form, however, some evidence of actual knowledge is

required to find that a municipality had the requisite

“consciousness of a risk” to be held deliberately indifferent. 

Id at 840.

No such evidence was presented in this case. As the

County points out, the only evidence proffered by Castro to

establish that the County knew of the risk to Castro’s safety

was the existence of the state regulation. But this evidence,

for the reasons discussed above, establishes only constructive

knowledge on the part of the County. Per Castro’s own brief,

he decided for “tactical reasons” not to present evidence of

similar incidents in the past, and he offered no evidence that

the regulation in question had ever been specifically brought

to the County’s attention.

Nor are we persuaded by our dissenting colleague’s

position that the County had actual knowledge of the

regulations in question simply because the County Board of

Supervisors adopted them. Dissenting Op. at 41–43. These

regulations were neither drafted by the County nor considered

individually before adoption. Instead, the Board of

Supervisors adopted over 1,300 pages of the California

Building Code in one fell swoop, one of which happened to

contain the regulation at issue here. Citing Board of County

Commissioners v. Brown, 520 U.S. 397, 405–06 (1997), the

dissent argues that this adoption is “conclusive proof that the

County had actual knowledge of the risk of the harm that

befell Plaintiff.” Dissenting Op. at 41. The Supreme Court’s

discussion in Brown, however, addressed only specific,

targeted municipal actions. See id. (discussing a city
34 CASTRO V. COUNTY OF LOS ANGELES

council’s censure and discharge of an employee and

cancellation of a performance license due to the content of the

performance). Were any such specific, targeted actions

present here, we would wholeheartedly agree with the dissent

that the County had actual knowledge of the regulation at

issue. In the absence of any such proof, however, the fact

that no one found this proverbial “needle in a haystack”

simply confirms our view that we are dealing with

constructive knowledge rather than actual knowledge on the

part of the County.

The dissent finally argues that we should “hold, as a

matter of law, that entities have actual knowledge of (1) laws

that they enact, including those adopted by incorporation, and

(2) state regulations governing their conduct.” Dissenting

Op. at 41. We find this proposition perplexing. Knowledge

that an individual or an entity is deemed to have as a matter

of law is, by definition, constructive knowledge. Black’s Law

Dictionary (10th ed. 2014) (“[C]onstructive knowledge [is]

[k]nowledge that one using reasonable care or diligence

should have, and therefore that is attributed by law to a given

person.” (emphasis added)). As discussed at length above,

constructive knowledge is insufficient to impose liability for

a failure-to-protect claim, and actual knowledge cannot, from

a definitional standpoint, be imputed as a matter of law. Our

dissenting colleague, understandably, is unable to cite any

authority in support of her novel proposition.

Finally, we recognize that the question of what constitutes

deliberate indifference is one of fact, such that we generally

owe the jury’s conclusion substantial deference. Grenning

v. Miller-Stout, 739 F.3d 1235, 1239 (9th Cir. 2014) (citing

Johnson v. Lewis, 217 F.3d 726, 734 (9th Cir. 2000)). But

without any evidence whatsoever that the County had actual
CASTRO V. COUNTY OF LOS ANGELES 35

knowledge of the risk to Castro’s safety, the verdict against

the County cannot stand.

E. Castro presented sufficient evidence regarding the

amount of his past damages from which the jury could

reasonably calculate the amount of future damages

The defendants’ final argument is that the jury’s

future-damages award of $600,000 should be reversed

because it was based on pure speculation as to the amount of

such damages. We find this argument to be without merit.

The parties agree that California law applies for purposes

of calculating damages in this case. See Sullivan v. Little

Hunting Park, Inc., 396 U.S. 229, 256 (1969) (directing lower

courts to “look to state law to find appropriate remedies when

the applicable federal civil rights law is ‘deficient in the

provisions necessary to furnish suitable remedies’” (quoting

42 U.S.C. § 1988(a))). Under California law, an award of

damages may include an amount to compensate for related

expenses that are “certain to result in the future.” Cal. Civ.

Code § 3283. “However, the ‘requirement of certainty . . .

cannot be strictly applied where prospective damages are

sought, because probabilities are really the basis for the

award.’” Behr v. Redmond, 123 Cal. Rptr. 3d 97, 111 (Cal.

Ct. App. 2011), as modified Mar. 25, 2011 (quoting 6 Witkin,

Summary of Cal. Law Torts, § 1552 (10th ed. 2005)).

The defendants’ repeated assertions that Castro has “set

forth no admissible evidence to establish any foundation

whatsoever for the amount of future expenses” are simply not

supported by the record. Castro submitted the billing records

from both his cognitive assistant and his treating

psychologist, and he also submitted a chart detailing the
36 CASTRO V. COUNTY OF LOS ANGELES

charges for the almost $1 million in medical expenses that he

had already incurred. He also proffered several medical

experts who testified to his need for ongoingmedical care and

described the approximate scope of that care.

California courts have consistently approved damage

awards for future medical expenses based on this type of

evidence. See, e.g., id. at 113 (approving a future-damages

award based on the cost of a medication as established by

past records multiplied by the plaintiff’s estimated life span);

Cooper v. Chambi, No. G028318, 2002 WL 31086128, at *3

(Cal. Ct. App. Sept. 9, 2002) (unpublished) (finding that past

bills for psychological services totaling $125 per week could

provide a jury with reasonable certainty as to the future cost

of psychological services, but could not alone sustain a $1.5

million future-damages award).

The defendants also object to the future-damages award

because they argue that it was not reduced to present value.

They have a point to the extent that such an award is subject

to a present-value reduction. See Fox v. Pac. Sw. Airlines,

184 Cal. Rptr. 87, 89 (Cal. Ct. App. 1982) (holding that

“recovery for lost future benefits must be discounted to

present value”) (citing Bond v. United R.R.s of S.F., 113 P.

366, 372 (Cal. 1911)). But they overstate the role of experts

in establishing the appropriate discount. The California Civil

Jury Instruction that they cite simply states that expert

testimony is “usually” required to accuratelyestablish present

values, and Niles v. City of San Rafael, 116 Cal. Rptr. 733,

740 (Cal. Ct. App. 1974), on which they rely, similarly

observes that actuarial testimony is “frequently” used for this

purpose.
CASTRO V. COUNTY OF LOS ANGELES 37

However common the use of experts may be, no

California court has ever held that expert testimony is an

absolute requirement in order to establish the present value of

a future-damages award. The district court instructed the jury

to reduce its award of future damages to present value

according to the Ninth Circuit’s Model Civil Jury

Instructions, and we have no reason to believe that the jury

ignored that instruction, particularlybecause the juryawarded

only slightly more than half of the amount requested.

In sum, although no expert testified as to the precise rate

of reduction to be applied, the court instructed the jury to

reduce its award for future damages to present value, and “we

must assume that the jury followed the court’s instructions.”

See Gray v. Shell Oil Co., 469 F.2d 742, 752 (9th Cir. 1972). 

Our assumption seems fully justified by the fact that the

future damages awarded to Castro reflected a 42 percent

discount from the amount requested. Particularly in light of

this discount, we are not persuaded that this is the appropriate

case in which to make the use of experts to establish the

present value of future damages an absolute requirement

under California law. We therefore decline to disturb the

award for future damages.

III. CONCLUSION

For all the reasons set forth above, we AFFIRM the

judgment of the district court against the individual

defendants but REVERSE the judgment against the County.

Each party shall bear its own costs.
38 CASTRO V. COUNTY OF LOS ANGELES

CALLAHAN, Circuit Judge, concurring:

I agree with the majority that the judgment of the district

court against the individual defendants should be affirmed

and the judgment against the County reversed. I write

separately to explain that I do not think that Castro has shown

that the design of the West Hollywood Station constitutes a

policy for purposes of liability under Monell v. Department

of Social Services of New York., 436 U.S. 658 (1978).

I do not deny that pursuant to Pembaur v. City of

Cincinnati, 475 U.S. 469, 483 (1986), the design of a jail in

some circumstances, might be held to constitute a deliberate

choice or policy. However, I disagree with the suggestion

that the fact that the jail was constructed is sufficient in itself

to “meet the definition of a formal municipal policy.” Maj.

at 27. Rather, I agree with the Sixth Circuit’s approach in

Molton v. City of Cleveland, 839 F.2d 240, 246 (6th Cir.

1988), that “Pembaur[] require[s] proof of a deliberate and

discernible city policy to maintain . . . inadequately designed

and equipped jails; not mere speculation that such matters are

‘inherently matters of city policy.’”

Here, the record contains no evidence to suggest that the

design and construction of the West Hollywood Station

implicated a relevant policy choice. The record indicates that

the West Hollywood Station is many decades old. Municipal

facilities are built to suit the needs of their times, according

to the then existing applicable statutes and regulations. Other

than their mere existence, there is no evidence in this record

to indicate that the relevant design features of the West

Hollywood Station were policy choices of the County. 

Although both the County and Castro presented evidence of

measures that could be taken to increase supervision in the
CASTRO V. COUNTY OF LOS ANGELES 39

sobering cell, no evidence was presented that the County

specifically considered these measures or made a deliberate

choice to reject them at the time of the facilities’ construction,

or even at any time thereafter. Nor was any evidence

presented, such as past instances of injury or modifications

made since the Station’s construction, that might support an

inference that the County considered but rejected such design

features.

Accordingly, I would hold that Castro has failed to show

that the design of the West Hollywood Station constituted a

formal policy under Monell, 436 U.S. 658. Nonetheless, I

concur in the opinion as I agree that even if there was a

formal policy, Castro has failed to show the requisite

deliberate indifference for Monell liability.

1

See Maj. at

30–35.

GRABER, Circuit Judge, concurring in part and dissenting in

part:

I join the majority opinion, with the exception of Part

II.D.2. I respectfully dissent from the holding that there was

insufficient evidence from which the jury could have

concluded that the entity Defendants were deliberately

1

I agree with Judge Gilman that Kingsley v. Hendrickson, 135 S. Ct.

2466 (2015), does not clearly establish a new or different test for a failureto-protect claim. See Maj. Op. 13–16. Moreover, even assuming the

application of an “objective” intent test, the County’s adoption of certain

chapters of the California Building Code, including criteria for ‘sobering

cells” — some decades after the construction of the West Hollywood

Station — would not, by itself, meet that objective intent test.
40 CASTRO V. COUNTY OF LOS ANGELES

indifferent to the risk that Plaintiff would be harmed by a

fellow inmate. I also write separately because the Supreme

Court’s recent decision in Kingsley v. Hendrickson, 135 S. Ct.

2466 (2015), calls into question our precedent on the

appropriate state-of-mind inquiry in failure-to-protect claims

brought by pretrial detainees.

A. The entity Defendants had actual knowledge of state

regulations governing their conduct and were

deliberately indifferent.

In Farmer v. Brennan, 511 U.S. 825, 841 (1994), the

Supreme Court acknowledged that “considerable conceptual

difficulty would attend any search for the subjective state of

mind of a governmental entity, as distinct from that of a

governmental official.”1 This case squarely presents that

considerable conceptual difficulty.

We previously have acknowledged that certain types of

evidence could show that an entity possesses subjective

knowledge:

First, it is certainly possible that

a municipality’s policies explicitly

acknowledge that substantial risks of serious

harm exist. Second, numerous cases have

held that municipalities act through their

policymakers, who are, of course, natural

1 As I explain in Part B, I question whether proof of subjective

indifference is required in a Fourteenth Amendment case after the

Supreme Court’s decision in Kingsley. This section assumes, consistent

with our precedent, that Farmer still applies to a claim arising under the

Fourteenth Amendment.
CASTRO V. COUNTY OF LOS ANGELES 41

persons, whose state of mind can be

determined.

Gibson v. County of Washoe, 290 F.3d 1175, 1188 n.10 (9th

Cir. 2002). But those two types of evidence are not the only

way to show such knowledge. Here, as the majority explains,

state regulations applicable to the County anticipated the

precise harm that befell Plaintiff and required a particular

audio-monitoring system to prevent that harm. Moreover, the

County affirmatively adopted those same regulations into its

municipal code. I would hold, as a matter of law, that entities

have actual knowledge of (1) laws that they enact, including

those adopted by incorporation, and (2) state regulations

governing their conduct.

At the time of the attack in this case, the Los Angeles

CountyCode “adopted by reference and incorporated into . . .

the Los Angeles County Code as if fully set forth below”

certain chapters of the California Building Code, including

chapter 12, which includes the regulation requiring that

sobering cells be equipped with an audio-monitoring system.2

L.A. County Code, tit. 26, ch. 1, § 100 (2007). The County

Board of Supervisors’ affirmative adoption of a regulation

aimed at mitigating the risk to individuals housed in sobering

cells is conclusive proof that the County had actual

knowledge of the risk of the harm that befell Plaintiff. See 

Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 405–06 (1997)

2 Even though the county code provision was not in evidence in the

district court, we may take judicial notice of it because it is “not subject

to reasonable dispute” and “can be accurately and readily determined from

sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid.

201(b)(2); Santa Monica Food Not Bombs v. City of Santa Monica,

450 F.3d 1022, 1025 (9thCir. 2006); see id. at 1026 n.2 (holding that local

ordinances are “proper subjects for judicial notice”).
42 CASTRO V. COUNTY OF LOS ANGELES

(describing Owen v. City of Independence, 445 U.S. 622

(1980), and Newport v. Fact Concerts, Inc., 453 U.S. 247

(1981), as municipal liability cases involving “no difficult

questions of fault” because they involved “formal decisions

of municipal legislative bodies”).

But I would not require such an affirmative act to show

that an entity possesses the requisite knowledge to support a

finding of deliberate indifference; I also would hold, as a

matter of law, that governmental entities, as distinct from

individuals employed by those entities, know the statutes and

regulations governing their conduct. The majority contends

that such a rule impermissibly equates actual knowledge with

constructive knowledge. Maj. op. at 33–34. It is true that the

Supreme Court has written that, in actions against individuals

and entities alike, a plaintiff must establish that the defendant

possessed the “state of mind required to prove the underlying

violation.” Brown, 520 U.S. at 405. But I do not think that

the Court meant for us to ignore salient differences between

individuals and entities.

In Davis v. Scherer, 468 U.S. 183, 196 (1984), the Court

held that individual officers are not deemed to have

knowledge of the “voluminous, ambiguous, and

contradictory” regulations governing their conduct. (Internal

quotation marks omitted.) The Court explained that officers

“must often act swiftly and firmly,” precluding “an extensive

inquiry into . . . the applicability and importance of the rule

at issue” and “the possible legal consequences of their

conduct.” Id. at 195–96 (internal quotation marks omitted). 

That reasoning does not apply to entities, which by definition

do not make the sort of time-pressured decisions that

individual officers make. Moreover, because an entity does

not have an actual mind, the question of what the entity
CASTRO V. COUNTY OF LOS ANGELES 43

“knows” is different from the question of what an individual

“knows.” Cf. United States v. 7326 Highway 45 N., 965 F.2d

311, 316 (7th Cir. 1992) (“As a legal fiction, a corporation

cannot ‘know’ like an individual ‘knows.’”).3In light of

these differences between entities and individuals, I would

hold that where, as here, positive law applicable to the entity

speaks directly to the risk of harm that befell a plaintiff, the

entity defendant has the requisite knowledge of that risk to

disregard it deliberately.

B. Recent Supreme Court precedent calls into question

our caselaw governing Fourteenth Amendment

failure-to-protect claims.

As explained above, I would hold, as a matter of law, that

the entity Defendants had actual knowledge of the risk to

Plaintiff and were deliberately indifferent to that risk. But

after the Supreme Court’s decision in Kingsley, I doubt that

actual knowledge is necessary to support a finding of

deliberate indifference under the Fourteenth Amendment. In

my view, Kingsley undermines Clouthier v. County of Contra

3 Were we writing on a blank slate, one possible resolution of the

conceptual difficulty here would be to hold that entities cannot be held

liable for constitutional violations when the underlying violation requires

subjective intent. Indeed, the Supreme Court has taken that course in a

different context. See City of Newport v. Fact Concerts, Inc., 453 U.S.

247, 267 (1981) (holding that punitive damages cannot sensibly be

assessed against a governmental entity because the entity “can have no

malice independent of the malice of its officials”). But that option is not

open to us, because the Supreme Court clearly has stated that

municipalities can have subjective knowledge and intent for the purposes

of § 1983 liability. See Brown, 520 U.S. at 405 (holding that “proof that

a municipality’s legislative body or authorized decisionmaker has

intentionally deprived a plaintiff of a federally protected right necessarily

establishes that the municipality acted culpably”).
44 CASTRO V. COUNTY OF LOS ANGELES

Costa, 591 F.3d 1232, 1243 (9th Cir. 2010), in which we held

that proof of such knowledge is required.4

A pretrial detainee’s right to be protected from harm at

the hands of other inmates stems from the Due Process

Clause of the Fourteenth Amendment, rather than from the

Cruel and Unusual Punishment Clause of the Eighth

Amendment. Gibson, 290 F.3d at 1187. Notwithstanding

those different constitutional sources, in Clouthier, 591 F.3d

at 1242–43, we held that the Eighth and Fourteenth

Amendment standards are identical for failure-to-protect

claims. Accordingly, we held that the standard imposed by

Farmer—which involved an Eighth Amendment claim

brought by a convicted prisoner—applied to claims brought

by pretrial detainees. Id. at 1242.

In Kingsley, 135 S. Ct. at 2475, the Supreme Court held

that excessive force claims brought by convicted prisoners

under the Eighth Amendment’s Cruel and Unusual

Punishment Clause differ qualitatively from excessive force

claims brought by pretrial detainees under the Fourteenth

Amendment’s Due Process Clause. Under Kingsley, a

pretrial detainee, unlike a convicted prisoner, need not prove

that the defendant subjectively knew that the force applied

was excessive; that state-of-mind inquiry is “solely . . .

objective.” Id. at 2473 (emphasis added).

4 Despite the considerable tension between Kingsley and our precedent,

the conflict may not be sufficient to meet the “high bar” that would

authorize our panel to depart from that precedent. Miller v. Gammie,

335 F.3d 889, 900 (9th Cir. 2003) (en banc). For that reason, I do not

dissent from the majority’s description of the appropriate state-of-mind

inquiry for the individual defendants.
CASTRO V. COUNTY OF LOS ANGELES 45

There are important differences between excessive force

and failure-to-protect claims; notably, a failure-to-protect

claim does not necessarily involve an affirmative act by the

defendant.5 But there also are important similarities. Most

significantly, the claims share constitutional sources; they are

drawn from the Fourteenth Amendment for pretrial detainees,

but from the Eighth Amendment for convicted prisoners. 

Therefore, the reasoning of Kingsley is in serious tension, if

not outright conflict, with the reasoning of Clouthier. See

Miller, 335 F.3d at 900 (“[T]he issues decided by the higher

court need not be identical in order to be controlling. Rather,

the relevant court of last resort must have undercut the theory

or reasoning underlying the prior circuit precedent in such a

way that the cases are clearly irreconcilable.”).

Clouthier provided a single rationale for holding that the

Farmer test applied equally to Eighth and Fourteenth

Amendment claims: It read Bell v. Wolfish, 441 U.S. 520,

535 & n.16 (1979), to require proof of punitive intent for

failure-to-protect claims, whether those claims arise in a

pretrial or a post-conviction context. Clouthier, 591 F.3d at

1241–43. But Kingsley rejected precisely that reading of

Bell; although unconstitutional “’punishment’” of pretrial

detainees “can consist of actions taken with an ‘expressed

intent to punish,’” proof of such intent is not required. 

Kingsley, 135 S. Ct. at 2473 (emphasis added) (quoting Bell,

5

I disagree with the majority’s statement that we evaluate excessive

force claims, as distinct from deliberate indifference claims, without

regard to “whatever thoughts, knowledge, or motivation” drove the

defendant’s actions. Maj. op. at 14. When a convicted prisoner brings an

excessive force claim, “the core judicial inquiry is . . . whether force was

applied in a good-faith effort to maintain or restore discipline, or

maliciously and sadistically to cause harm.” Hudson v. McMillian,

503 U.S. 1, 7 (1992).
46 CASTRO V. COUNTY OF LOS ANGELES

441 U.S. at 538). In evaluating the challenged prison

conditions in Bell, the Court “did not consider the prison

officials’ subjective beliefs about the policy. Rather, the

Court examined objective evidence . . . before concluding that

the conditions were reasonably related to the legitimate

purpose of holding detainees for trial and did not appear

excessive in relation to that purpose.” Id. (citing Bell,

441 U.S. at 541–43). Thus, Clouthier’s reading of Bell, as

requiring a subjective state-of-mind inquiry with respect to

awareness of the risk, cannot survive Kingsley. And because

Clouthier’s only reason for applying the same test in the

Eighth and Fourteenth Amendment contexts was that nowdefunct reading of Bell, it is questionable whether Clouthier

remains good law on this point.

Moreover, Kingsley emphasized the importance of the

constitutional source of the asserted right: “The language of

the two Clauses differs, and the nature of the claims often

differs. And, most importantly, pretrial detainees (unlike

convicted prisoners) cannot be punished at all, much less

maliciously and sadistically.” 135 S. Ct. at 2475 (internal

quotation marks omitted). In light of Kingsley’s focus on the

differences between the relevant constitutional provisions, we

ought not apply a decision grounded in the Eighth

Amendment to a claim arising under the Fourteenth

Amendment. Cf. Graham v. Connor, 490 U.S. 386, 393–94

(1989) (“We reject this notion that all excessive force claims

brought under § 1983 are governed by a single generic

standard. As we have said many times, § 1983 is not itself a

source of substantive rights, but merely provides a method for

vindicating federal rights elsewhere conferred.” (internal

quotation marks omitted)). Thus, I do not think that either

Clouthier or Farmerfullyanswers whatstate-of-mind inquiry

is required in this case.
CASTRO V. COUNTY OF LOS ANGELES 47

Because I would hold that the entity Defendants had

actual knowledge of the risk to Plaintiff, Kingsley would not

change the outcome that I would reach even if we were not

bound to follow Clouthier. Both the Supreme Court and we

have held that the due process rights of a pretrial detainee are

at least as great as the Eighth Amendment protections

available to a convicted prisoner. City of Revere v. Mass.

Gen. Hosp., 463 U.S. 239, 244 (1983) (citing Bell, 441 U.S.

at 535 n.16); accord Or. Advocacy Ctr. v. Mink, 322 F.3d

1101, 1120, 1121 n.11 (9th Cir. 2003). Thus, proof that a

defendant had actual knowledge of the risk of harm, which

amounts to proof that actions were taken “with an ‘expressed

intent to punish,’” Kingsley, 135 S. Ct. at 2473 (quoting Bell,

441 U.S. at 538), necessarily satisfies the Fourteenth

Amendment state-of-mind inquiry.

But, in my view, Kingsley strongly suggests that proof of

actual knowledge of the risk is not required for a claim

arising under the Fourteenth Amendment. In Kingsley, the

Supreme Court explained that, in an excessive force case,

there are . . . two separate state of mind

questions. The first concerns the defendant’s

state of mind with respect to his physical

acts—i.e., his state of mind with respect to the

bringing about of certain physical

consequences in the world. The second

question concerns the defendant’s state of

mind with respect to whether his use of force

was “excessive.”

Id. at 2472. As to the first inquiry, the Court stated that “the

defendant must possess a purposeful, a knowing, or possibly

a reckless state of mind,” because “’liability for negligently
48 CASTRO V. COUNTY OF LOS ANGELES

inflicted harm is categorically beneath the threshold of

constitutional due process.’” Id. (quoting County of

Sacramento v. Lewis, 523 U.S. 833, 849 (1998)). By contrast,

for the second inquiry, a pretrial detainee need provide “only

objective evidence that the challenged governmental action

is not rationally related to a legitimate governmental

objective or that it is excessive in relation to that purpose.” 

Id. at 2473–74. In the excessive force context, that step

requires the plaintiff to demonstrate that the force used was

“objectively unreasonable.” Id. at 2473.

Farmer sets up an analogous two-part state-of-mind

inquiry for failure-to-protect claims. In order to be deemed

“deliberately indifferent” to a particular risk under the Eighth

Amendment, a defendant “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.” 

Farmer, 511 U.S. at 837. Under Kingsley, the first part of the

standard—requiring subjective awareness of facts giving rise

to an inference of a substantial risk of serious harm—remains

unchanged.6 But I read Kingsley to suggest that, for claims

arising under the Fourteenth Amendment, a plaintiff need

only show that a reasonable person in the defendant’s shoes

would draw that inference.7

6 And the act or omission itself still must be intentional or possibly

reckless. For example, a guard who fails to take action because he or she

has suddenly fallen ill would not be deliberately indifferent.

7 This case illustrates why it is important that our precedent get this issue

right. Applying the post-Kingsley standard outlined in this section, the

majority would reach a different conclusion regarding the entity

Defendants’ liability, because we agree that the state regulations put the

entity Defendants on at least constructive notice that the failure to install

an inmate- or sound-actuated audio-monitoring system exposed inmates
CASTRO V. COUNTY OF LOS ANGELES 49

For the foregoing reasons, I would affirm the jury’s

verdict against the entityDefendants. Itherefore dissent from

Part II.D.2.

to a substantial risk of violence at the hands of other inmates. We ought

to rehear this case en banc so that we can take up this important issue.