F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

J O N A T H A N M I C H A E L C A S T R

O , Plaintiff-Appellee

,

v

.

C O U N T Y O F L O S A

N G E L E S ; L O S A N G E L E S S H E R

I F F ’ S D E P A R

T M E N T ; C H R I S T O P H E R S O L O M O N ; D A V I D V A L E N T I N E , Serg eant, aka Valentine, Defendants-Appellants

. N o. 12-56829

D.C. No. 2 :10-05425-DSF

ORDER AND OPI NI ON

A ppeal from the United States District Court for the Central District of California Dale S. F ischer, District J udg e, Presiding

Arg ued and Submitted D ecember 11, 2014—Pasadena, California

F iled Aug ust 11, 2015

B efore: Ronald L ee Gilman, * Susan P. Graber, and Consuelo M. Callahan, Circuit J udg es.

Order;

* T h e Ho n orab l e Ro n ald L ee Gilm an , Sen io r Un ited States Circu it J u dg e f o r th e Six th

Circu it, sittin g b y

d esig n atio n

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Opinion by J udg e Gilman; Concurrence by

J udg e Callahan; Partial Concurrence and Partial Dissent by J udg e Graber

SUMMARY * *

Civil Rights

The pa n e l withdrew its prior opinion, concurrence, a nd partial concurrence and partial dissent, filed May 1, 2015, a nd
pu b l i s hed a t 785 F .3d 336, and r eplaced it with an amended opinion, concurrence a

n d partial concur

r en c e a nd partial dissent.

The panel affirmed in part and reversed in part the district court’s judg ment, entered following a jury trial, in an action broug ht under federal and state law by a pretrial detainee w ho

was attacked by another arrestee a nd suffered serious harm. Plaintiff alleg ed that the County of L os Ang e les, the L os Ang eles Sheriff’s Department County and individ u al defendants w ere deliberately indifferent to the substantial risk of harm created by

housing h im in the same sobering cell as th e o t her arrestee and by failing to maintain appropriate supervision of the cell.

Affirming the judg ment in f a v or of plaintiff ag ainst the individual defendants, the panel h eld that defendants were not entitled to qualified im m u n i ty b ecause the rig ht to b e free fr o m violence at the hands of other inmates was w ell

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.C A S T R O V

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established and there was sufficient evidence for a jury to find that the officials were d eliberately indifferent to a substantial risk of harm to plain t i f

f

. The panel further found that there was sufficient evidence for the punitive damag es award.

R eversing the judg ment in favor of plaintiff ag ainst the entity d efendants, the p anel held that plaintif f ’ s c l aim under Monell v. D ep’t of Soc. Servs
., 436 U .S. 6 58, 690–71 (1978), was leg ally viable but insufficiently proven. The panel held that althoug h the entity defendants instituted a formal p olicy under Monell w ith reg ard to desig ning the jail’s sobering cell, ther e was insufficient that defendants had actual knowledg e of a risk to plai n t i f

f’ s safety

. The panel stated that even thoug h a state reg ulatio n r e quired Counties to install a compliant audio-monitoring s y s t em to ensure that inmates could easily summon help, there was no evidence presented
at trial that the entity defendants had actual, r at h er than constructive, knowledg e of the reg ulation.

The panel affirmed the jury ’s future

- d amag es award, determining that plaintiff presented sufficie n t evidence
reg arding the a mount of his past damag es from which a jury could reasonably

calculate the amount of future damag es.

Concurring

, J udg e Callahan ag reed t h a t the judg ment o f the district c ourt ag ainst the individual d efendants should be affirmed and the judg ment a ga inst the e ntity defendants should be reversed. She wrote separately to ex plain that she did not think that p laintiff had shown that t h e d esig n of the W e st Holly

wood Station constituted a policy for purposes o f liability under Monell.

Co n c u r r i ng in part and dissenting in part, J udg e Graber joined the majority opinion as to the liability of the individualC A S T R O V

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d e f e n d a nts. She dissented f rom the h olding that there wa s insufficient evidence from w hich the jury could have concluded that the entity defendants were d el i berately indifferent to the risk that p laintiff would be harmed by a fellow inmate. J udg e G ra b e r 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 Ci r c uit’s precedent on the appropriate state-of-mind inquiry i n failure-to-protect claims broug h t by pretrial detainees.

COUNSEL

Melinda Cantrall (arg

u ed) and Thom as C

. Hurrell, Hurrell Cantrall L L P, L os A ng eles, Califo r n i a , for DefendantsAppellants.

J ohn B urton (arg

ued), L aw Offices of J ohn B urton, Pasadena, California; Maria Cavalluz z i, Cavalluz z i & Ca v a l l uz z i, L os Ang eles, California; and L a w rence L allande, L a l l a n d e L aw PL C, L o ng B each, California, for Plaintiff-Appellee.C A S T R O V

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ORDER

The opinion, con c urrence, and partial concurrence a nd
pa rt i a l d i ssent filed May 1, 2015, and published at 785 F .3d 336, are withdrawn and are replaced by the o p i n i o n, concurrence, and partial c o n currence and partial dissent filed

con c u r r e n t ly with this order. As the court’s opinion is withdrawn, Appellants’ petition for panel rehearing a nd petition f or rehearing en ban c i s m o o t. F urther petitions for panel rehearing

and for rehearing

en banc may

be filed.

OP INION

GI L MAN, Senior Circuit J udg e:

I n October 2009, J onathan Castro was arrested for being d r u n k i n public. He was h oused in a “sobering c ell” at t h e L os A ng eles Sheriff’s West Holly wood Station where, a few hours after his arrest, h e was savag ely attacked by a n o ther intox icated arrestee w ho had been placed in the cell with him. The officer o n duty a t the jail failed to r e s p o n d to Castro’s pounding on the cell door despite e vidence t hat the officer

was well within r ang e to hear the p ounding

. Castro suffered serious harm, inclu d i n g a broken jaw and traumatic brain injury

.

T h i s l awsuit was f

iled by Castro in the United States District Court for the Central District o f California i n J uly 2010. H e broug ht both f

ed er al- and state-law c laims ag ainst the County of L os Ang e les, the L os Ang eles County Sheriff’s Department, and a number of J ohn Doe defendants who were later identified as two of his jailers. After a six -day trial, theC A S T R O V

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jury returned a verdict for Castro ag ainst both the individual and entity defendants, awarding h im over $2.6 million in past and future damag es.

The defendants then renewed their joint motion for judg men t a s a matter of law, arg uing that there was insufficient evid e n c e to support the verdict, that the individual defendants were entitled to qualified i m munity

, and that Castro’s theory of liability ag a inst the County a nd the Sheriff’s Department (these two entities b eing hereinafter collectively referred to as the County ) was simply untenable. The d istrict court denied the d efendants’ moti o n without a written opinion. T h ey now appeal. F or the reasons set forth below, we AF F IRM the judg ment of the district court ag ainst the individual d efendants b u t REVERSE the judg ment ag ainst the County

.

I. BACK G R OUND

A. Assault on Castro

Castro was arrested late in t h e evening of October 2, 2009 f or public drunkenness. The arresting o fficers r eported that Castro was stag g e ring

, bumping into pe destrians, a nd speaking unintellig ibly

, so they arrested him “for his safety

. ” He was transported to the West Holly w o o d S tation a

nd placed in a fully w a l l ed s obering c ell that w as stripped o f objects w ith hard edg es on wh i ch an inmate could hurt himself if h e lost his balance. The cell contained only a toilet and a series of mattress pads on the floor. A short time later, J onathan Gonz alez was arrested a fter punching o u t a w indow
at a nig htclub. T he o ffic e r s b r o u g ht Gonz alez to the W e st Holly wood Station, where he was placed in the same soberingC A S T R O V

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cell that housed Castro. Gonz alez ’s i n t ake forms indicated that h e was “combative” a t the time he was placed in the cell.

Shortly after Gonz alez wa s p laced in the cell, Castro approached the door and pounded on the window in the door f o r a full minute, a ttempting to attract an officer’s attention. No one responded. A c ommun i t y v olunteer at the jail, Gene Schiff, came by approx imate l y 2 0 minutes later. H e noted that Castro a

ppeared to be asleep and that Gonz a l e z was “inappropriately

” touching Castro’s thig h, the latter circumstance being in violation of jail policy

. Schiff did not enter the c ell to investig ate. I n stead, he reported the contact
to the supervising officer, Chri s t o p h er Solomon. Solomon took no acti o n u n til he heard loud sounds six minutes later. He rushed to the sobering c ell and saw Gonz alez making a violent stomping motion. Solomon immediately opened the door and discovered that Gonz alez was stomping on Castro’s head. Solomon ordered G onz alez to step away from Castro. Seeing that Castro was b y then ly ing unconscious in a pool o f blood, Solomon called for medical assistance.

W h en the paramedics arrived, Cas t r o was still unconscious, in respiratory distress, and turning blue. He was hospitaliz ed for almost a mo n t h, then transferred to a long -term c are facility

, where he remained for four y ears. He currently suffers from severe memory loss and p ermanent cog nitive impairments. Even after his release from the long -t e r m care facility

, Castro remains incapable o f performing simple life functions, such as cooking a nd maintaining hy g iene. His family is responsible for his basic care to this day

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B. District court proceedings

After his complaint wa s f

iled, Castro substituted Solomon and Solomon’s supervisor, Serg e ant David Valentine, for the J ohn Doe defe n d a n ts named in the orig inal complaint. S o l o m on w as the jail’s officer on duty on the e vening in question a

nd Valentine was the watch serg eant in ch a r ge o f the jail a s a whole. Castro’s basic theory of liability under 42 U.S.C. § 1983 was that both the County and the individual defendants w ere deliberately indifferent to the substantial risk of harm c reated b y housing him in the same sobering cell as Gonz a lez and by

failing to maintain appropriate supervision of the cell. The complaint a lso set f orth a variety of state-law claims, not one of w hich is raised by any party to this appeal.

The individual defendants m o v e d to dismiss the c laims
ag ainst them on the g r ound of qualif i e d i m m unity

, b ut the district court rejected their a r g uments. I t concluded that a jury could find that placing an actively bellig erent inmate in

a n unmonitored cell with Castro constituted deliberate indifference to a substantial r isk o f harm, in v iolation o f Castro’s constitutional rig hts.

The case proceeded to trial. After Castro rested h is c ase, the defendants mo v ed for judg ment as a matter of law on three gr o u n ds: (1) insufficient evidence that the d esig n of a jail cell c onstitutes a policy

, p ractice, or custom by the County that resulted in a constitution a l violation; (2) insufficient evidence that a reasonable officer w ould have known that housing Castro and Gonz alez tog ether was a violation o f Castro’s constitutional rig hts; and (3) insufficient evidence for the jury to award punitive damag es. The district
court denied the motion in its entirety

. F ive day s later, th e jury returned a verdict for Castro on a ll counts a nd awardedC A S T R O V

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him $2,605,632.02 in damag es. B ased on the jury ’s finding s, t h e p arties later stipulated to $840,000 in attorney fee s , $12,000 in punitive damag e s ag ainst Valentine, and $ 6,000 in punitive damag es ag a inst Solomon.

After trial, the defendants timely filed a renewed motion for judg ment as a matter of law. The trial cou r t denied the renewed motion w ithout issuing a written o p inion. This timely appeal followed.

II. ANALYSIS

A. Standard of

review

W e review de novo the district court’s denial of a motion for judg ment as a matter of law. Hangarter v. P rovident Life & Accident Ins. Co.
, 373 F .3d 998, 1005 ( 9 t h C ir. 2004). A renewed motion for judg ment as a matter o f l aw is properly
g ranted only “ if the evidence, construe d i n the lig h t most fa v o r a ble to the nonmoving p arty , permits only o ne 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 b y substantial evidence, which is evidence adequate to support the jury ’s conclu sion, even if it is also possible to draw a contrary conclusion.” Id.

I n m a king this determination, the court must not weig h the evidence, b ut should simply a sk whether the plaintiff has presented suffic i e n t e vidence to support the jury ’s conclusion. Johnson v. Paradise Valley Unified Sch. Dist
., 251 F .3d 1222, 1227–28 (9th Cir. 2001). Althoug h the court must review the entire evidentiary record, it must view all the evidence in the lig ht most favorable to the no nmoving party , draw allC A S T R O V

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reasonable inferences in the favor of the nonmover, a nd disreg ard all evidence f

avorable to the moving

party that the jury is not required to believe. Id

. at 1227.

The defendants raise a numb e r of issues on appeal,
rang ing from discrete leg al questions to disputed ma t t e rs o f evidence. W e f

irst address the arg u m e n t s raised by the individual defen d a n t s, then move on to those presented b y the County

.

B. Neither Solom on nor V alentine is entitled to qualif ied im m unity

B o th individual defendants—Solomon and Valentine—
arg ue that the judg ment ag ainst them should be reversed because they are entitled to qualified immunity

. The doctrine of qualified immunity shields g overnment officials from civil liability under 42 U.S.C. § 1983 if “their co n d u c t d o es not violate c learly established statutory or constitutional rig h ts o f which a reasonable person would have known.” H a r l o w v

. Fitzgerald

, 457 U.S. 800, 818 (1982). “Qualified immunity balances two important interests—the need to hol d public officials accountable when they ex ercise power irresponsibly and the need to shield o fficials from harassment, distraction, and liability when they perform their duties r e a s onably

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

To determi n e w hether an officer is entitled to qualified immunity

, a court must evaluate two i n dependent prong s: (1) wheth e r the officer’s conduct violated a constitutional rig ht, and (2) whether that rig ht was c learly established at the time o f the incident. Id. at 232. These prong s may b e addressed in either order. Id. at 236.C A S T R O V

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The constitutional r ig ht at issue in this case is the rig ht to b e f ree from v iolence at the hands of other inmates. Th i s rig ht was first recog niz ed by the Supreme Court in Farmer v

. Brennan
, 511 U .S. 825 (1994). I n Farmer
, a male-to-female transg ender person was placed in male housing in the federal prison sy stem, where she w as beaten and raped by another inmate. Id. at 830. She broug ht a civil rig h ts act i o n f o r damag e s a n d an injunction, alleg ing that the corrections officers h ad acted with delib erate indifference to her safety

, in violation of the Eig h th Am e n d m e n t. Id. at 830–31. The Supreme Court ag reed w ith her, h olding that “prison officials have a duty

. . . to protect prisoners f r om violence a t the h a nds of other prisoners” because corrections officers have “stripped [ t h e inmates] o f v irtually every means o f self-protection and foreclosed their a ccess to outside aid.” Id

. at 833 (internal quotation marks omitted). T h is court has since clarified tha t t h e ri ght to b e free from violence at the hands of other inmates ex tends to inmates housed in state or local c ustody

. See Cortez v. Skol

, 776 F. 3 d 1046, 1049–50 (9th Cir. 2 0 15) (recogniz ing a claim based on Farmer broug ht by a state prisoner).

B o t h Solomon and Valentine acknowledg e that the duty
to protect Castro from v iolence was clearly e stablished at the time of the incident. B ut they arg u e that such a broad definition o f t h at duty is too g eneral to g uide this court’s analy sis. Moreover, they contend that Castro failed to present substantial evidence to establish that they violated their duty to protect him.

“To d etermine that the law w as clearly established, we need not look to a case w i t h i d entical or even ‘materially similar’ f acts.” Serrano v. Francis
, 345 F .3d 1071, 1077 (9th Cir. 2003) ( quoting H

ope v. P elzer

, 536 U.S. 730, 739–41C A S T R O V

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(2002)). T he q

uestion instead is whether the contours of the rig ht were sufficiently clear that a reasonable official would understand that his actions violated that rig h t. I d. ; see also Saucier v. Katz , 533 U.S. 194, 202 (2001).

F ollowing the Supreme Court’s 1994 decision in Farmer
, this court has considered over 15 different fai l ure-to-protect claims s t e mming from inmate-on-inmate violence. I n e ach
case, the court has recited the standard established b y Farmer
, then proceeded to apply that standard to the f acts o f the case b e fore the court. The similarity of the f a c t s

— or the lack thereof—to other p ost- Farmer cases has ra r e ly entered the discussion. S

e e , e .g. , Robinson v. Prunty
, 249 F .3d 862, 866–67 (9th Cir. 2001).

I nstead, the rig ht at issue is construed simply as the rig ht
to be protected from attacks b y other inmates. This is in stark
contrast w ith the qualified-immunity analy sis for other ty pes of c laims, such as ex cessive force, in which analog ies to prior

cases play a much strong er role. See Maxwell v. Cnty. of San Diego
, 7 08 F .3d 1075, 1082–83 ( 9th Cir. 2013); W interrowd

v. Nelson

, 480 F .3d 1181, 1185–8 6 ( 9th Cir. 2 007); Drummond ex rel. Drum m o n d v

. City of Anaheim

, 343 F .3d 1052, 1056–61 (9th Cir. 2003). I n sum, Farmer sets forth the contours of the rig h t to be free from violence at the hands of other inmates with su f

f i cient clarity to g uide a reasonable officer. Solomon an d V a lentine’s arg ument on this point is therefore without merit.

Th e y n ex t question the sufficiency of the evidence supporting Castro’s c laim o f deliberate indifference. B ecause Castro was a pretrial detainee, his rig ht to be free from violence at the hands of other inmate s a r i s es f rom the F ourteenth Amendment rather than the Eig hth Amendment.C A S T R O V

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See Gibson v. County of W ashoe

, 290 F .3d 1 175, 1187 (9th Cir. 2002). Despite those different constitutional sources, the “deliberate indifference” test is the same for pretrial detainees and for convicted prisoners. C l outhier v. County of Contra Costa
, 591 F

. 3d 1232, 1242 (9th Cir. 2010) (ex plaining that “neither [ the N inth Circuit] n or the Supreme Court ha[ s] departed f

rom the s t a n dard set f

o rth in Bell and Farmer for considering pretrial det ainees’ claims that g overnment officials violated their F o urteenth Amendment rig hts b y failing to prevent harm”).

Our dissenting c olleag ue, however, bel i e v e s that the Supreme Court’s recent decision in Kingsley v. Hendrickson

, 135 S. Ct. 2466 (2015), c a l l s the law on this p oint into question. She arg u es that “ Kingsley undermines Clouthier ” because the F ourteenth Amen d m ent provides substantively different protections than the Eig hth Ame n d m e nt, such that different standards may n ow apply to cla i m s b roug ht b y pretrial d etainees as o pposed to convicted prisoners. Dissenting Op. at 43–46.

W e find a t least two f

laws in the dissent’s analy sis. F irst and foremost, Kingsley itself a ck n owledg es that it does not necessarily impose different standards for claims broug ht under the Eig hth A m endment as opposed to the F ourteenth Amendment; it addresses only the r ig hts of pretrial detainees under the F ourteenth Amendment without passing judg ment

on parallel rig hts that may b e possessed by convicted prisoners under the Eig hth Amendment. See Kingsley

, 135 S. Ct. at 2476 (“W e acknowledg e that our view that an objective standard is appropriate in the contex t of ex cessive force

c l aims b roug h t by pretrial detainees pursuant to t h e F ourteenth A mendment may raise questions about the use o f

a subjective standard in the contex t of ex cessive force c laimsC A S T R O V

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broug ht by convicted prisoners. W e are not confronted with such a claim, however, so w e need n ot addres s t h a t issue today .”). F o r t his same reason, we disag ree w ith our di s s e nting colleag ue’s view that Clouthier ’s reading of Bell

v. W olfish

, 441 U.S. 520, 535 (197 9 )

, “ cannot survive Kingsley .” Dissenting Op. at 46.

Second, e ven if Kingsley did establish different standards for ex cessive

- f

orce claims b roug h t by pretrial detainees a s opposed to c onvicted prisoners, such a holding would have no bearing on the failure-to-protect claims p resented here and in C l o u thier

. T he dissent acknowledg e s that “[ t] here a r e important differences b e tween ex cessive force and failure-toprotect clai m s , ” but nonetheless believes that the f act that they are drawn from th e same constitutional sources—the Ei gh th and F ourteenth Amendments—is sufficient to

overcome those differences. Diss e n t i ng Op. at 45. W e respectfully

disag ree.

The standard for a failure-to-protect claim—deliberate indifference to a s u b s t antial risk of serious harm—is completely different from the standard for an ex cessive-force claim. F or y ears, the Supreme Court h as held that the focus of any ex c essive-force claim, whether broug ht under the Eig hth Amendment or the F ourteenth Amendment, is on the reasonableness of a

n o fficer’s actions rather than o n whatever thoug ht s , k nowledg e, or motivation may have driven those actions. S

e e Graham v

. Connor
, 490 U.S. 386, 397 (1989) (holding that “the question [in an ex cessive-force claim] is whether the officers’ actions are ‘obj e ctively reasonable’ in lig ht of the fact s and circumstances confronting them, without
rega r d t o their u nderly ing intent or motivation,” such that “[ a] n officer’s evil intentions will n ot make a [ constitutional] violation out of an objectively r e asonable use of f orce; norC A S T R O V

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w i l l an officer’s g ood intentions make an objective l y unreasonable use of force constitutional.”).

F a i l u r e

- t o

- p r o t e c t c l a ims, however, involve no affirma t i v e act a t all by the defendant. The Supreme Court thus requires lower c ourts to consider more than just the simple fact o f i naction; we must also assess what was g oing on ins i d e t h e defendant’s mind that led to his failure to act. See F a rmer v

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

a defendant t o b e deemed “deliberately indifferent” to a particu l ar r isk, he “must both b e aware of facts from which the inference could be d

rawn that a substantial risk o f serious harm ex ists, and he must also draw the inference.”). W e believe that t h i s substantive difference is more sig nificant than the common constitutional source.

I n short, Kingsley does not establish that ex cessive-force claims broug ht u n der the F ourteenth Amendment a re g overned by a different standard than ex cessive-force c laims broug ht u nder the Eig hth Amendment. And even if it did, a s the dissent acknowledg es, w e would not be authoriz ed t o

ex tend that distinction to the substantiv e l y different failureto-protect c laim presented both here a n d in Clouthier without

ex p ress instructions from the Supr e m e Court to do so. See A g o s t i n i v. Felton

, 521 U.S. 203, 207 (1997) ( “The Court neither acknowledg es nor holds that other courts should ever conclude that its more recent cases have, by i m plication, overruled a

n ea r l i er precedent. Rather, lower courts should follow the case which directly c o ntrols, leaving to this Court the prerog ative of overruling its own decisions.”).

Accepting

, then, that Clouthier remains g ood law, Castro

was required to show by a preponderance of the evidence that (1) he faced a substantial r i s k o f s erious harm, (2) theC A S T R O V

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d e fendants w ere deliberately indifferent to that risk, a n d (3) the defendants’ failure to act w as a p rox imate cause of the harm that he suff

e r e d

. See Farmer
, 511 U.S. at 847. A defendant is deemed “deliberately indifferent” to a s ubstantial risk of serious harm when he knew of the risk but disreg arded i t b y failing to take reasonable measures to address the dang er. I d.

I n the case before us, the j u r y s pecifically found on the

v erdict form that both Solomon and Valentine w e r e deliberately indifferent to Castro’s plig ht. I n h i s brief on appeal, Castro notes several different way s in which Solomon and V alentine were deliberately indifferent t o h i s risk o f harm: both decided to h ouse h im in a fully w a l l e d sobering cell with a “combative” inmate; Solomon failed to respond to Castro’s bang ing on the w in d o w in the door of the c ell; S o lomon failed to respond f ast enoug h to Gonz ale z ’s inappropriate touching ; and Solomon erred in deleg a ting the safety checks to a volunteer. W e conclude that the jury could have found Solomon and Va l e ntine liable based on the substantial evidence presented in su p p o r t o f one or more o f these theories.

1. T h e jury could have found that Solom on w a s deliberately indifferent to a substantial risk of harm
to Castro because he disregarded Castro’s pounding on the cell door

Castro’s most persuasive theory of deliberate indifference with r espect to Solomon stems from Solomon ’ s failure to respond w hen Castro pounded o n the door after Gonz a lez was placed in the cell. Video footag e p resented at trial e stablished th at Castro pounded on the door for a full minute a fter Gonz a lez entered the cell. Solo m o n w as near the cell a t theC A S T R O V

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time, but testified that he did not hear the pounding

. Solomon also c ontend s that the video footag e of the e vent shows that he “ did not appe a

r to h ear any bang ing o n the door b y plaintiff.” Three other witnesses, however, including two jail employ e es, testified that one could hear simple talking from inside the sobering cell, such that p ounding w ould have been
easy to hear from where Solomon was standing

.

F aced with this evidence, the jury could have reasonably concluded that Solomon heard the pounding and elected not
to respond. “[ A] jury may pro p e r l y r e fuse to credit even uncontradicted testimony .” Guy v

. City o f S an Diego
, 608 F .3d 5 82
, 5 8 8 ( 9th Cir. 2010) ( citing Quock Ting v

. U n i ted States
, 140 U.S. 4 17, 420–21 (1891)). Here, the ju r y

was presented with circumstantial evidence that undermined Solomon’s assertion that he did not hear the pounding

.

B u t Solomon contends in his brief that we are f r e e to “disreg ard inferences in favor of the prevailin g party where they are belied by a video account in the record,” citing Scott

v. Harris
, 550 U.S. 372, 380–81 (2007). I n this c ase, ho we v e r, the video footag e neither confirms nor r efutes Solomon’s account. The jury had th e o p portunity to r eview both the footag e a

nd the testimony in contex t, and to perform

a full assessment o f each w itness ’s credibility

. Given the testimony of three other witnesses, the jury had sufficient evidence to conclude that Solomon heard but ig nored Castro’s attemp t s 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. D ist.
, 251 F .3d 1222, 1227 (9th Cir. 2001).

W e thus reach the q

uestion of whether Solomon’s failure
to respond to Castro’s bang ing c o n stituted deliberateC A S T R O V

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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 a nd

a q u e s tion of fact. Grenning v. Miller-Stout

, 7 3 9 F .3d 1235, 1239 ( 9th Cir. 2014) (citing Johnson v. Lewis
, 217 F .3d 726, 734 (9th Cir. 2000)). B ecause questions of fact are uniquely the province of the jury

, see Santos v. Gates
, 2 8 7 F. 3d 846, 852 (9th Cir. 2002), its d e t ermination must stand when supported b y substantial evidence, see Pavao v. Pagay
, 307 F .3d 915, 918 (9th Cir. 2002).

This le a d s to the issue of w hether Solomon’s deliberate indifference was both a n actual a n d a prox imate cause o f Castro’s harm. See Lemire v. Cal. Dep’t of Corr. & Rehab

., 726 F .3d 1062, 1074 (9th Cir. 2013) (holding that “plaintiffs alleg ing deliberate indifference must also demonstr a te that the defendants’ actions were both an a c t ual and prox imate

cause of their injuries”). Actual ca u sation is “purely a question o f fact,” Robinson v. Y ork

, 566 F. 3 d 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.

B u t Solomon arg ues th a t this finding is unsupported b y t he evidence because Castro did not appear to b e injur e d during a safety check p e rf o r m ed 2 2 minutes after the pounding stopped. His proposed r e s triction on the relevant timeline for causa t i on, however, does not comport with this court’s pr i o r ruling s. See, e.g. , Conn v. City of Reno
, 591 F .3d 1081, 1098–1101 (9th Cir. 2010)) (holdi n g that a corrections officer’s failure to respond to warning s o f harm could be an actual cause o f t h a t i n mate’s suicide 48 hours later), vacated

, 131 S. Ct. 1812 (2011), reinstated in relevant part , 658 F .3d 897 (9th Cir. 2 011). B ecause Solomon has presented n o compell i n g r eason to adopt his proposedC A S T R O V

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arbitrary time limitation, we d ecline t o d o so. The jury ’s verdict o n actual c ausation is supported by sufficient evidence to remain undisturbed.

“‘Once it is established that the defendant’s conduct has in fact been one of the caus e s o f t h e plaintiff’s injury

, there remains the question whether the defendant should be leg ally responsible for the injury

. ’” Id. at 1100 (quoting W hite v

. Roper
, 901 F .2d 1501, 1506 (9th Cir. 1990)). A corrections officer will b e held leg ally responsible for an inmate’s injuries if the officer’s a c tions are a “ moving force” behind a series of events that u l t i mately lead to a foreseeable harm,

even if o ther intervening causes contributed to the harm. Id. at 1101. I f reasonable p ersons could differ over the question of foreseeability , that issue should be left to the jury

. Id.

This court’s prior cases a re ins t r u c t ive. I n Conn
, for

ex a mple, t h i s court found that a corrections officer’s failure
to r espond to an inmate’s attempt to choke herself and to her subsequent threats of suicide could be considered a prox imate

cause of her suicide two day s after t h e t h reats, e ven thoug h she was subjected to several medical e x am i n a tions b etween the time of the threats and the tim e o f h e r death. Id. at 1101–02. The question of foreseeability was left to the jury

. Id. Similarly

, the court in W h ite c o ncluded that a corrections

o f f i cer’s d ecision to forcibly p lace an inmate (the plaintiff) into a ce l l with another, v iolent inmate could be considered

a “moving force” behind the injury that the plaintiff suffered when he attempted to run, such that the q uestion should have been sent to a jury

. W

h ite
, 901 F .2d

. at 1506. Here, the jury found that Solomon’s deliberate indifference was one of the

causes of Castro’s harm. L eaving that decision to the jury is in concert with this court’s prior opinions.C A S T R O V

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Farmer clearly estab l ished that a c orrections officer has

a duty to act to protect o ne inmate from violence at the h ands of another. The jury was presented with sufficient evidence
t o find that Solomon was aware of but disreg arded Cast ro ’s attempts to alert Solomon to the dang er faced by Castro. A nd the jury determined that Solomon’s deliberate indiff er e nce

was b oth an actual and a p r ox imate cause of Castro’ s h arm. Even if we mig ht h ave reached a different conclusion when considering the totality of the circumstances, t here is sufficient evidence to support the jury ’s verdict on this issue.

2. The jury could hav e found that V alentine was deliberately indifferent to a substantial risk of harm to Castro when he placed Gonzalez in Castro’s cell

W e nex t turn to Serg e ant V a l e n t ine. The parties ag r ee that Valentine may be held liable only for his o w n a c t ions. Vicarious liability does not apply to cl aims broug ht under § 1983, so Valentine may not be held i ndependently responsible f

or the actions of h is subordinates

. See Ashcroft

v. I qbal

, 556 U.S. 662, 676 (2009). V alentine was not in the immediate vicinity of the sobering cell for most of the events at issue in this case. The o n ly relevant event for w h ich he

was present w as the initial d ecision to house Gonz a lez in the sobering cell w ith Castro, so we will focus our analy sis on that decision.

Valentine arg ues that he is entitled to qualified immunity because a reasonable officer at the time of the incident would
not have known t h a t h ousing Gonz alez in the same cell a s Castro would v iolate Castro’s c onstitutional rig h ts. He relies heavily on Estate of Ford v. R amirez-Palmer

, 301 F .3d 1043 (9th Cir. 2002), to support this arg ument. I n F o rd

, a g roup o f prison officials decided to hous e the plaintiff with anotherC A S T R O V

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inmate w ho had be e n c lassified as a “predator” after several past inciden t s o f a s sault on his cellmates. Id. at 1046–47. Two day s later, the “predator” inmate attacked and killed the plaintiff. I

d. at 1047.

The predatory in m a t e in Ford

, however, “had been successfully double-celled for y ears with other inmates” a nd had not been recommended for “sing le-celling ” by the prison staff. Id. at 1 051. Moreover, the plaintiff and the predator in Ford consented to be housed tog e ther. Id. at 1047. They h ad previou s l y b een housed tog ether without incident, a nd there

was n o h istory of violence between them. Id. B ased on that history

, this court found that “it would not b e c l e ar to a reasonabl e prison official w hen the risk of h a rm from double-celling

. . . chang e s from being a risk of some harm to

a substantial risk of serious harm.” Id. at 1051. (emphases in orig inal). The court therefore held that t he official was entitled to qualified immunity

. Id. at 1053.

Ford ’s central holding is that an officer i s e ntitled to qualified immunity when the transitio n f r o m a r isk of some harm to a substantial r isk of serious harm would not have been clear to a reasonable p rison official. “[ T] he qualitative difference between the deg ree of risk that w i l l r e sult in liability u n der the Eig hth Amendment’s stand ard, and that which will not, is a fact-bound inquiry ,” requiring deference
to the t ri e r o f f

act. A.D. v

. Cal. Highway Patrol

, 712 F .3d 446, 4 55 n.4 (9th Cir. 2013). He r e , a jury has already weig hed in and f

o und that Valentine was aware of a nd disreg arded not merely a risk of some harm, b ut a substantial risk of serious harm to Castro.

Ford was not a case of two intox icate d s t r ang e rs being thrown tog ether in the middle o f the nig ht, but rather a c alm,C A S T R O V

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reasoned decision ma d e wi th the input of all the affected parties. F aulting a prison official for disreg arding some risk of harm is difficult when the victim himself consented to the risk. Castro, on the other hand, did not consent to b e i n g housed with Gonz alez

. Gonz alez and Castro h ad no history tog ether, so Valentine h a d n o basis to c onclude that the risk of an altercation was minimal. Altho u gh Gonz alez had a lesser history of violence in g eneral than the predator inmate in Ford

, G onz alez ’s c ombative nature w hen p laced in the c ell

was in no way mitig ated by any p rior interaction with Castro.

At the end of the day , this is a fact-specific inquiry . The jury heard evidence that Gonz alez p resented a sufficient threat to cause h im to b e supervised by two officers at all times following h is arrest, one of whom was consistent l y in
contact with him. They also heard that, pursuant to jail policy

, combative inmates such a s Gonz alez were t o b e housed separately from inmates like Castro, specifically to a void this ty pe of altercation. T he jury was furt h e r i nformed 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 disreg arded a substantial risk o f serious harm to Castro, and we find no reason to disturb that finding

. S ee id. at 459 (“[ P] ost-verdict, a court must a pply the qualified immunity framework to the facts that the jury f ound (including the defendant’s subjective intent). ” ). Such a conclusion does not run a foul of this court’s holding in Ford because of the key factual differences between the two cases.

As with Sol o m on, the final question then becomes whether Vale n t i n e’s a c tions were b oth an actual and a prox imate cause of Castro’s harm. The jury determined that
t h e y were and, for the reasons discussed above, we will n o tC A S T R O V

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set aside that deter m i n a tion. Valentine is therefore not entitled to q

ualified immunity and m a y be subjected to liability for his personal involvement in the d e cision to h ouse Gonz a lez and Castro tog ether.

C. F or the purpose of aw arding punitive dam ages, no additional evidence is requir e d t o m ake a f inding of “reckless disregard” w hen a f inding of “deliberate indif f erence” has been m ade

The individual defendants cursorily a rg ue that the district court’s award of punitive damag es must be reversed because the evidence does not support such a n award. Al t h o u gh the parties stipulated to the e ventua l am o unt of the punitive damag es entered ($12,000 ag ainst V alentine and $6,000
ag ainst Solomon), the defendants arg ued in b oth their preand post-verdict motions for judg ment a s a matter of law that there was insufficient evidence to support a punitive-damag e s award. Castro counters that, after h earing the officers testify

, the jury m ig ht have determined that they demonstrated callousness by

their lack of remorse.

P unitive d amag es may be assessed in § 1983 acti o n s “when the defendant’s conduct is shown to b e m o t ivated b y evil motive or intent, or when it involves reckless or callous indifference to the f

ederally pr o t ected rig hts of others.” Smith v. W

ade

, 461 U .S. 30, 56 (1983). “[ T] hi s t h r e shold applies even when the underly i n g standard of liability for compensatory damag es is one of r ecklessness,” id.

, because
to a w ard punitive damag es, the jury must make both a f actual det e r m i n a tion that the threshold was met a nd “a moral judg ment” that further punishment w as warranted, id. at 52–53 (recogniz ing that w h ere the underly ing standard o f liability is recklessness, a tortfeasor may be subje c t t o b othC A S T R O V

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compensatory and punitive damag es without any additional culpable conduct). The decision to i mpose such sanctions is “within the ex clusive p rovince of the jury .” Runge v. L e e , 441 F .2d 579, 584 (9th Cir. 1971).

The precise distinction between “ deliberate indifference” and “reckless or c a l lous indifference” remains an open question. As di s c u s sed above, “deliberate indifference” is de fined in this circuit as “the c o nscious choice to d isreg ard the consequences of one’s acts or omissions.” Se e 9 t h Cir. Civ. J ury I nstr. 9.7 (2007). F urthermore, when t h e S upreme Court articulated the deliberate-indifference s t andard for failure-to-protect claims in Farmer
, it d efined the standard a s

one of crimi n a l recklessness. S ee Farmer
, 511 U.S. at 837–39. The circular nature of these definitions g ives rise to the inference that the terms are sy n ony mous. J uries in these

cases thus have the discretion to impose punitive damag es if they b e lieve further punishment above and bey ond compensatory damag es is a ppropriate, without having to make any additional factual f inding s. See Smith

, 461 U.S. at 56.

As d escribed above, t h e jury heard sufficient evidence here to find that both individual defendants were deliberately indifferent. Acc o r d i n g ly

, it was also free to find that the individual defendants’ actions constituted reckless or callous indifference, opening up the possibility of punitive d amag es. The ju ry r e n dered such a judg ment here. B ecause this decision is “within the e x clusive p rovince of the jury ” so long

as the le ga l prerequisites a re met, we will allow the lower court’s punitive-damag e award to stand. See Runge
, 441 F .2d at 584.C A S T R O V

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D. Castro’s Mone l

l c laim is legally viable but insuf f iciently proven

W e turn n ex t to the is s u es raised by the County in this appeal. The County

arg u es that the v erdict ag ainst 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 p olicy that violated his constitutio n a l rig hts, then his theory f ails because there was no evidence presented of any similar prior incidents; a

nd (3) if Castro’s theory o f liability is based on the County ’ s having a formal policy t h at violated his constitutional rig hts, then his theory is leg ally untenable.

W e beg in o ur analy s i s b y a ddressing a few fundamental points reg a

rding municipal liability

under 42 U.S.C. § 1983. The first point is that althoug h § 1983 imposes liability only

on “persons” who, under color of law, deprive others of their constitutional rig hts, the Supreme Cour t has construed the
term “persons” to include municipalities such as the County

. See Monell v. Dep’t of Soc. Servs.
, 4 36 U.S. 6 5 8
, 6 90–91 (1978). A municipality is respon s i ble for a constitutional violation, however, only when an “action [ taken] p ursuant to [ an] official municipal policy o f some natu r e ” caused the violation

. Id. at 691. This means that a municipality is not liable under § 1983 b ased o n the common-law tort theory of respondeat superior. Id

. On the other hand, t h e o f f icial munici pal policy in question may be either f ormal o r informal. City of St. Louis v. Praprotnik , 485 U.S. 112, 131 (1989) (plurality opinion) ( ac k n o wledg ing that a p laintiff could show that “a muni c i p a l ity ’s actual policies were different from the ones that had been announced”); id

. at 138 (B rennan, J
., concurring ) (stating that municipal policies may be formal or informal).C A S T R O V

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A formal policy ex ists when “a deliberate ch o ice to follow a c ourse of action is mad e f ro m among v arious alternatives by the of

f i c ial or officials responsible for establishing final policy with respect to the subject matter in question.” Pembaur v. City of Cincinnati
, 475 U.S. 4 69, 483 (1986) (plurality opinion). W hen pursuing a Monell claim stemming from a formal policy

, a plaintiff must prove that the municipality “ acted w ith the state of mind required to prove the under l y i n g violation.” Tsao v

. Desert Palace, Inc.
, 698 F .3d 1128, 1143–44 (9th Cir. 2012) (internal quotation marks omitted) (ex plaining that the plaintiff must prove that the municipal defendan t s acted w ith deliberate indifference, the same standard that a p laintiff has to establish in a § 1983 claim ag ainst an individual defendant).

An informal policy

, on the o th e r h a n d

, e x ists when a plaintiff c an prove the ex istence of a widespread practice that, althoug h not authoriz e d by an o rdinance or an ex press municipal p olicy

, is “so permanent and well settled as to constitute a custom or usag e with the force o f law.” Praprotnik

, 485 U .S

. a t 127 (internal q u otation marks omitted). Such a practice, however, cann o t o rdinarily be established by a sing le constitutional deprivation, a random act, or a n isolated e v ent. Christie v. Iopa
, 176 F .3d 1231, 1235 (9th Cir. 1999). I n stead, a plaintiff such as Castro must show a pattern of similar incidents in o rder for the f actfinder
to conclude that the alleg ed informal policy wa s “so permanent and well settled” as to carry the force of law. See Praprotnik , 485 U.S. at 127.

The County ’s f

irst two argu m e nts can be q uickly a nd easily addressed. F irst, the claim that the County is protected f r o m s uit by the Eleventh Amendment was squarely

c o n s idered and rejected by this court in Jackson v

. Barn e s ,C A S T R O V

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749 F

. 3d 7 55, 764–65 (9th Cir. 2014), cert. denied

, 1 35 S. Ct. 980 ( 2015) (holding that a sheriff ’ s department is a county actor when it investig ates crim e a n d supervises a jail, a nd thus is n ot protected b y the Eleventh Amendment’s b lanket of immunity for state officials). The County therefore cannot seek refug e behind the Eleventh Amendment. Second, and in the County ’s favor, the record is dev o i d of any similar incident to that suffered by Castro. He thus failed to establish that the County had an infor m a l p olicy in relation to the sobering ce l l t h a t caused him harm. The County ’ s liability thus h ing es on its final arg ument, which boil s d o wn to (1) whether the desig n of the s o b ering cell constitutes a formal County

policy and, if so, (2) whether the County was deliberately i n d i f

f erent to the harm that befell Castro as a result of that formal policy

.

1. The jail’s design was a d eliberat e c h o i ce by the County and thus a form al policy

W e cannot envision how a municipality can desig n a jail without making “a deliberate choice

. . . from among v arious alternatives.” See Pembaur

, 475 U .S. at 483. Construction projects o f any variety involve a series of such choices based

on aesthetics, func t i o n a l ity

, budg et, and other factors. One

wo u l d assume that f

o r any g iven construction project, including jails, the m unicipality ’s g overning body —or a committ e e t h a t it appoints to act in its stead—reviews bids, considers desig ns, and u ltimately approves a p l a n for the facility and allocates funds for its constructio n

. These choices are sufficient, in our opinion, to meet the definition of a formal municipal policy a s set forth in Pembaur

.

W e are unpersuaded by the cases cited b y the County in support of its arg ument to the contrary

. See Molton v. City ofC A S T R O V

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Cleveland

, 8 39 F

. 2d 240, 2 46 ( 6th Cir. 19 8 8 ) ; Elliott v

. Cheshire Cnt

y

. , 7 5 0 F

. Supp. 1146, 1156 (D. N.H. 1990), aff’d in part and vacated in part

, 940 F .2d 7 (1st Cir. 1 991); Shouse v. D aviess Cnty.
, No. 4:06-cv-144-M, 2009 W L 424978, at * 8 (W .D. Ky

. F eb. 19, 2 0 09) ( unpublished); Richardson v

. Dailey

, No. 925996
, 1 994 W L 879483, at *3 (Mass. Super. Ct. Sept. 29, 1994) (un p u b l i shed), aff’d

, 424 Mass. 258 (1997). Of these cases, Molton is the only o ne to pr o v ide more than a cursory analy sis of the jaildesig n-as-policy

issue.

I n Molton

, an inmate hung himself by his shirt in h is c ell while his fellow inma t e s screamed for help. 8 39 F

. 2d at 242–43. The administrator of the decedent’s estate sued the city u n der § 1983, alleg ing that t h e jail was defectively desig ned, creating a substan t i a l risk of suicides. Id. at 243. The jury returned a verdict in favor of the esta t e

. Id. On appeal, the city

arg ued that the estate had failed to prove the

ex istence of a municipal policy that caused the suicide. Id. at 247. T he estate responded by pointing o u t s everal f actors contributing to his injury that were “inherently matters of city policy ,” including the operation o f a jail with a cell block that

was too remote for easy sup e rv i sion, the failure to install an audio communication sy stem 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.

I n ruling ag ainst the estate, the Six th Circuit found two problems w i t h the e state’s arg ument: (1) Supreme Court caselaw requires a plaintiff t o identify a “deliberate a nd discernible c ity policy ” rather than a series of v ag ue issues with the way the city runs its jail, and (2) the ev i d e n c e produced by the e s t a t e s upported, at most, a finding that the city acted n eg lig ently in desig ning t h e jail. Id. T he court inC A S T R O V

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Molton concluded that the city ’s “ failure to b uild a suicide-proof jail cell” did not constitute “a deliberate choice
to follow a course o f action” that would be required to impose Monell liability

. Id. (internal quotation marks omitt ed). Elliott

, S house

, 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 desig n of the jail itself. See id

. The Six th Circuit instead cons idered the “deliberate choice” question only w ith reg ard to whether the desig n was d eliberately indifferent to a risk to the inmates (as opposed to whether the desig n was simply

neg lig ent). Id.

To the contrary , we conclude that the question of whether the desig n of a jail can lead to a constitutional violation (i.e., whether it c onstituted deliberate indifference on the part o f the municipality ) is a separate question f r o m the issue o f whether the d esig n can be considered a formal policy for Monell purposes (i.e., whether the des i gn w a s a deliberate choice made b y a poli cy m a k er among a series o f alternatives). W ith all due r espect t o o u r sister circuit, we cannot i gn o r e the p lethora o f deliberate c hoices that a municipality makes in desig ning a jail, and we conclude that those choices render the desig n a formal municipal p olicy for the purpose of Monell liability

.

The d esig n of a jail, in sum, i s t h e result of a series o f deliberate c hoices made by the muni c i p ality that built it. I n this case, the County does not contest that it was responsible for the desig n a

nd operation of the West Holly wood Station. W e therefore hold that the County instituted a formal policy under Monell with reg a

rd to the jail’s sobering cell.C A S T R O V

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2. To find that a m unicipality w a s deliberately indifferent t o a risk, a plaintiff m ust p rove that the

m unicipality had actual kn owledge of that risk

Having determined that the County ’s desig n of the W e st Holly wood Station’s sobering c ell constituted a formal municipal policy

, w e t urn nex t to the issue of whether that policy violated Castro’s constitutional rig hts. Castro alleg ed that the County ’s policy depri v e d him of the same constitution a l rig ht that was v iolated by the individual defendants—his rig ht to be free from violence at the hands o f other inmates. As with the ind i v i dual defendants, Castro
must demonstrate that ( 1 ) he faced a substantial risk o f serious harm, (2) the County
, kno wing of the risk, showed deliberate i n d i fference by failing to take reasonable corrective
measures, and (3) the County ’s failure to mitig ate t h e r isk

was a prox imate cause of the harm that he suffered. See Farmer , 511 U.S. at 828, 842.

At trial, Castro p r esented e vidence est ablishing that the
state o f California had in place a reg ulation aimed at preventing the very ty

pe of harm suffered by Castro. T itle 24 of California’s Minimum Standards f or L o cal Detention F acilities defines a “sobering cell” as “an initial ‘sobering up’ place for arrestees who are sufficiently intox icated from any substance to require a protected environment to prevent injury by f alling o r victimization by other inmates .” C a l. Code Reg s. t i t

. 1 5, § 1006 ( emphasis added). I n addition, California’s Minimum Standards for Adult Detention F acilities provi d e s that “there shall be an inmate- o r sound-actuated audio monitoring sy stem in

. . . sobering cells

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

. ” Id . tit. 24, § 1231.2.22 (emphasis added).C A S T R O V

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The plain tex t of this reg ulation c learly indicates that the
state reg u lators were concerned about inmate-on-inmate violence a

nd req u i r ed counties to install a compliant audio-monitoring sy stem in o r der to ensure that the inmates could easily summon help. W est Holly wood Sta t i o n ’s sobering cell did not have such a n audio-monitoring s y stem in place.

Castro arg ues that, because of the reg ulation, the County knew of the r isk that inmates in a sobering cell fa ce from other inmat e s b u t d isreg arded that risk by failing to take the precautions required by

the reg ulations. The County
, o n the other hand, arg ues that there was no evidence p r e s e n ted at tri a l e s t a blishing that it was aware of the reg ulation. I n the absence o f such ev i d e n ce, the County contends that no reasonable jury could have concluded that it knew of the risk to Castro.

B o th sides—and, in our view, the dissent—have muddled the issue of knowledg e by failing to disting uish b etween

a ctual versus constructive knowledg e. The law has l o n g

re c o gniz ed a distinction between c onstructive knowledg e (i.e., what a reasonable person should have known in a g iven situation) and actual knowledg e (i.e., what a particular person did in fact know in the s am e s i t u ation). See, e .g. , Han v

. United States
, 944 F

. 2 d 5 2 6
, 530 (9th Cir. 1991) (reversing the g rant of summary judg ment in favor of the I R S because the tax pay e r had only constructive k nowledg e r ather than actual knowl edg e of a lien on his property ); McGinn v. City of Omaha

, 352 N

. W

. 2 d 545, 547 (Neb. 1984) (per curiam) (holding that a city

could be held liable for personal injuries sustained as a result of its neg lig ence, even in the a bsence o f

a c t u al knowledg e, if it had the knowledg e that a reasonable
person would have possessed under the circumstances).C A S T R O V

. C O U

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Constructive knowledg e is an o bjective standard, see R ost v

. United States
, 803 F

. 2 d 4 48, 451 (9th Cir. 1986), whereas actual knowledg e is a subjectiv e s tandard, see Bus. G uides, Inc. v. Chromatic Commc’ns Enterps., Inc.
, 892 F

. 2 d 802, 810 (9th Cir. 1989), aff’d , 498 U.S. 533 (1991).

The Supreme Court has previously de termined that subjective ( i.e.

, a c t ual) knowledg e is r equired in order to impose liability u nder a failure-to-protect claim. I n Farmer
, the Court held specifically that for liability to a ttach based on

a defen d a n t’s failure to protect a plaintiff from harm, the defendant “must both be aware of facts from w h i c h the i n f erence could be drawn that a substantial risk of serious harm ex ists, and he must also d raw the inference.” Farmer
, 511 U.S. at 837. I n a d o p t i n g this test for deliberateindifference claims, the Supreme Court specifically rejected

an objective standard of knowledg e (i.e., constructive knowledg e) f

o r t hese claims. I

d. Even the dissent

a c k nowledg es that Kingsley did not o verrule Farmer o r otherwise q

u e s t i o n t h e e xi s t i n g test for deliberate-indifference claims ag ainst the individual defenda n ts. Dissenting O p. at 44, n. 4.

Farmer recog niz e d that “conceptual difficult[ i e s may ] attend any search f

o r t h e subjective state o f mind of a g overnmental entity ,” id. at 841, but these difficulties a re not insurmo u ntable. A plaintiff could take any o f several paths
to prove that a municipality had actual knowledg e of a substantial risk o f serious h a rm to inmates. F or ex ample, where, a s here, there is an applicable reg ulation that should have put the municipality on notice o f the risk

, a p l a i n tiff could offer evidence that the municipality h a d been notified that it was out o f compliance w ith the reg ulation. O ther evidence, such as meeting minute s o r other records, that theC A S T R O V

. C O U

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reg ulation w as discussed at planning meeting s would also suffice, as w ould evidence that similar incidents had occurred and been broug ht to the municipality ’s attention. Reg ardless of its form, however, some evidence of actual knowledge is
req u ired to find that a municipality had the requisite “consciousness of a risk” to be h eld deliberately indiff e r ent. Id at 840.

No su c h evidence was p resented in this case. As the County p oi nts out, the only e vidence proffered by Castro to establish that the County knew of the risk to Cas t r o ’ s s a fety

was the ex istence of the state reg ulation. Bu t this evidence, for the reasons discussed above, e stablishes only constructive knowledg e on the part of the County

. Per Castro’s own brief, he deci d e d for “tactical r easons” not to present evidence o f similar incidents in the past, and he offered no evidence that the reg ulation in question had ever been specifically broug ht to the County ’s attention.

No r are we persuaded by our dissenting colleag ue’s position that the County had actu a l knowledg e of the
reg ulations in question simply becau s e t h e County B oard o f Supervisors adopted them. Dissenting Op. at 41–43. These
reg ulations were neither drafted b y the County nor considered individually before adopt i o n

. I nstead, the B oard o f Supervisors adopted o ver 1,300 p ag es of th e California B uilding Code in one fell swoop, one of which h a p p en e d to contain the reg ulation at issue here. Citing Board of County Commissioners v. Brown , 520 U.S. 397, 405–06 (1997), the dissent arg ues that this adoption is “conclusive proof that the County had actual k n o w ledg e of the risk of the harm that befell Plaintiff.” Dissenting O p. at 41. The Supreme Court’s discussion in Brown
, however, addressed only specific, targ e te d municipal actions. See id. (discussing a cityC A S T R O V

. C O U

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council’s censure a

nd discharg e of an employ ee a nd cancellation of a performance license due to the content of the performance). W er e any such specific, targ eted actions present here, we would wholeheartedly ag ree with the dissent that the County had actu a l knowledg e of the reg u lation at issue. I n the absence o f a n y such p roof, however, the fact tha t n o one found this proverbial “needle in a hay stack” simply confir m s o u r v iew that we are dealing with constructive knowledg e rather than actual knowledg e on the part of the County

.

The dissent finally arg ues that w e should “h o l d

, as a matter of law, that entities h ave actual knowledg e of (1) laws that they enact, including those adopted by incorporation, a nd (2) state r eg ulations g overning their conduct.” Disse nting Op. at 41. We find this proposition perplex ing . Knowledg e that a n i n d i v i d u al or an entity is deemed to have a s a matter of law is, by definition, constructive knowledg e. Black’s Law Dictionary (10th ed. 2014) (“[ C] onstruc t ive knowledg e [ is] [ k] nowledg e that o ne using reasonable care or d i l ig e nce should have, and therefore that is attributed by law to a g iven person.” ( emphasis a dded)). As disc u s s e d a t leng th above, constructive knowledg e is insufficient to impose liability for

a failure-to-protect claim, and actual knowledg e cannot, from

a definitional standpoint, be imputed as a matter of law. Our dissenting c olleag ue, understandably

, is unable to c ite any authority in support of her novel proposition.

F inally

, we recog niz e that the question of what constitutes deliberate indifference is o n e o f fact, such that we g enerally

owe the jury ’s conclusion s u b stantial deference. G renning

v. Miller-Stout

, 739 F .3d 1235, 1 239 (9th C i r

. 2014) (citing Johnson v. Lewis
, 2 17 F .3 d 7 2 6, 7 34 (9th Cir. 2000)). B ut without any

evidence whatsoever that the County had actualC A S T R O V

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k nowledg e of the r isk to Castro’s safety

, the verdict ag ai n s t the County

cannot stand.

E. Castro prese n t ed suf f icient evidence regarding the

am ount of his past dam ages f rom w hich t he jury could reasonably calculate the am o unt of f uture dam a ges

The defendant s ’ f

inal arg ument is that the jury ’s future-damag es award of $600,000 should be rev e r s ed because it was based on pure speculation as to the amount o f such damag es. W e find this arg ument to be without merit.

The parties ag ree that California law applies for purposes

o f c alculating damag es in this case. See Sullivan v. Litt l e Hunting Park, Inc.
, 396 U.S. 229, 256 (1969) (directing lower
courts to “look to state law to find appropriate r emedies when
t h e applicable federal civil rig hts law is ‘deficient in t h e provisions necessary to furnish suitable remedies’” (quoting 42 U.S.C. § 1988(a))). U nder California l aw, a n award o f damag es may include an amount to compensate for r elated

ex p enses that are “certain to r esult in the future.” C a l. Civ. Code § 3283. “However, the ‘requ i r em e n t of certainty

. . . cannot be strictly applied where prospective damag e s a r e soug h t, b ecause probabilities are r e a l ly the basis for the award.’” Behr v. Redmond

, 123 Ca l

. Rptr. 3d 97, 111 (Cal. Ct. App. 2011), as m odified Mar. 25, 2011 (quoting 6 W itkin, Summary of Cal. L aw Torts, § 1552 (10th ed. 2005)).

The defendant s ’ repeated assertions that Castro has “set forth no admissible evidence to establish any foundation whatsoever for the amount o f future ex penses” are simply not supported b y the record. Castro submitted the billing records f r o m both his cog nitive assistant and his treat i n g p sy cholog ist, and he a lso submitted a chart d etailing t h eC A S T R O V

. C O U

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charg es for the almost $ 1 million in medical ex penses that he had a lready incurred. H e also proffered sev e r al medical

ex p erts who testified to his need for ong oing medical care a nd described the approx imate scope of that care.

Califor n i a courts have consistently approved damag e

awa r d s for future medical ex penses based on this ty pe o f evidence. See, e.g. , id. a t 113 (approvin g a future-damag e s award based on the cost of a medication as established b y past records multiplied by the plaintiff’s estimated life span); Cooper v. Chambi

, No. G028318, 2002 W L 31086128, at *3 (Cal. Ct. App. Sept. 9, 2002) (unpublished) (finding that past bills f or psy cholog ical services totaling $125 per week could provide a jury with reasonable certainty as to the future cost of psy c holog ical services, b ut could not alone sustain a $1.5 million future-damag es award).

The defendants also object to the future-damag es award because they arg ue that it was not reduced to p r e s e nt value. They have a point to the ex tent that such an award is subject
to a present-value reduction. See Fo x v. Pac. Sw. Airlines

, 184 Cal. Rptr. 87, 89 ( Cal. Ct. A pp. 1982) (hold i n g that “recovery for lost future benefits must b e discount e d to present value”) (citin g Bond v. United R.R.s of S.F.
, 1 13 P. 366, 372 ( Cal. 1911)). B ut they overstate the role of ex perts in establishing the appropriate d iscount. The California Civil J ury I nstruction that they c ite simply states t h a t ex pert testimony is “usually ” r e q uired to accurately establish present

v a l u es , and Niles v. City of San Rafael

, 116 Cal. Rptr. 7 3 3
, 740 (Cal. Ct. App. 1974), on which they re l y , similarly observes that actuarial testimony is “frequently ” used for this
purpose.C A S T R O V

. C O U

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However common the u se of ex perts may b e, no California court has ever held that ex p ert testimony is an absolute requirement in order to e stablish the present value o f

a future-damag es award. The district court instructed the jury
to reduce its award o f future damag es to present value according to the Ninth Circu i t ’s Model Civil J ury I nstructions, and we have no reason to believe that the jury ig nore d that instruction, particularly because the jury awarded only slig htly more than half of the amount requested.

I n sum, althoug h no ex pert testified as to the precise rate of reduction to be applied, the court instructed the jury to reduce its award for future damag e s to present value, a nd “we
must assume that the jury f ollowed the c ourt’s instructions.” See Gray v. Shell Oil Co.
, 469 F .2d 742, 752 (9th Cir. 1972). Our assumption seems fully justifie d b y the fact that the future damag es awarded to Castro reflected a 42 percent discount from the amount requested. Particularly in lig ht o f this discount, w e are not persuaded that this is the appropriate

case in which to make the use o f ex pert s t o e stablish the present value of future damag es an absolute requirem e n t under California law. W e therefore d ecline to disturb the award for future damag es.

III. CONCLUSION

F or all the r easons set forth above, we AF F IRM the judg ment of the d istrict court a g ainst the individual defendants but REVERSE the judg ment ag a inst the County

. Each party

shall bear its own costs.C A S T R O V

. C O U

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N G E L E S 38

CAL L A HAN, Circuit J udg e, concurring :

I ag r ee with the majority that the judg ment of the district
court ag ainst the individual defendants should be affi r m e d and t h e judg ment ag ainst the County reversed. I write separately to e x plain that I do not think that Castro has shown that the desig n of t he W est Holly wood Station constitutes a policy for purpo s es o f liability u nder Monell v. Department of Social Services of New Y ork ., 436 U.S. 658 (1978).

I do not deny t h at p u r suant to Pembaur v. City of Cincinnati
, 475 U.S. 469, 483 (1986), the d e s i gn o f a jail in some circumstances, mig ht be held to constitute a deliberate choice or policy

. H owever, I d isag ree with the sug g estion that the fact that the jail was constructed is sufficient in itself
to “ m e e t the definition of a formal municipal policy .” Maj.

a t 2 7

. Rather, I ag ree with the Six th Circuit’s approach i n Molton v. City of Cleveland

, 839 F .2 d 2 4 0
, 246 (6th Cir. 1988), that “ Pembaur [ ] r equire[ s] proof of a d eliberate a nd discernible city policy to maintain

. . . inadequately desig n ed and equipped jails; not mere speculation that such matters a re ‘inherently

matters of city policy .’”

Here, the record contains no evidence to sug g est that the de s i g n and construction of the W est Holly w ood Station implicated a relevant policy choice. The record indicates that the West Holly

wood Station is many decades old. Municipal facilities are built to suit the n e ed s o f their times, according
to the then ex isting applicable statutes and reg ulations. Other than their mere ex istence, there is no evidence in this record
to indicate that the relevant desig n features of t h e W e st Holly wood Station were policy choices of the Count y

. Althoug h both the County and Castro presented evidence of

measures that could be taken to increase supervision in t h eC A S T R O V

. C O U

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N G E L E S 39

sobering cell, no evidence was presented t h a t the County specifically considered these meas u r es or made a deliberate choice to r eject them at the time of the facilities’ construction,

or even at any time there a f t e r

. Nor was any evidence presented, such a s past instances of injury or modifications made since the Station’s construction, that mig ht support an inference that the County considered but rejected such desig n features.

According ly

, I would hold that Castro has failed to show that the d esig n of the W est Holly wood Station constituted a formal policy under Monell

, 436 U. S

. 6 58. Nonetheless, I

concur in the opinion as I ag ree t h a t even if there was a formal p olic y , C a stro has failed to show the requisite deliberate indifferen c e f o r Monell liability

. 1 See Maj. at 30–35.

GRAB ER, Circuit J udg e, concurring in p art and dissenting in part:

I join the majority op i n i o n , with the e x ception of Part I I .D.2. I respectfully dissent from the holding that there was insufficient evidence from w hich the jur y could have concluded that the entity Defendants were deliberately

1 I ag ree w ith J u d g e Gilm an th at K i n g s l e y v. Hen d

rickso n , 1 35 S. Ct. 2 4 6 6 (2 0 1 5 ), d o es n o t clearly estab lish a n ew o r d if f eren t test f

o r a f ailu reto

- pro tect c l a i m

. S ee Maj

. Op

. 13

– 1 6

. Mo reo v er, ev en assu m in g th e ap p licatio n o f an “ o bj ectiv e” in ten t test, th e Co u n ty ’ s ad o p tio n o f certain ch ap ters o f th e Calif

o rn ia B u i ld in g Co d e, in clu d in g criteria f o r ‘ so b erin g cells” — so m e d ecad es af ter th e co n s t r u c tio n o f th e W est Ho l l y w o o d Statio n — w o u ld n o t, b y

itself , m eet th at o b

j ectiv e in ten t test.C A S T R O V

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indifferent to the risk that Plaintif f w o u l d be harmed by a fellow inmate. I also w rite separ a t el y b ecause the Supreme Court’s recent decision in Kingsley v. Hendrickson

, 135 S. Ct. 2466 (2015), calls into q uestion our precedent on the appropriate state-of-mind inquiry in failure-to-protect c laims broug ht by

pretrial detainees.

A. The e ntity Defendants had actual knowledge of state regulations governing their conduct and were deliberately indifferent

.

I n Farmer v. Brennan
, 511 U.S. 825, 841 (1994), the Supreme Court acknowledg e d that “considerable conceptual difficulty w ould attend a

ny search for the subjective state o f mind of a g overnmental entity

, as distinct from that of a g o v e rnmental official.” 1 This case squarely p resents that considerable conceptual difficulty

.

W e p reviously have acknowledg ed that certain ty p es o f evidence could show that an entity possesses su b j e ct ive knowledg e:

F ir s t , i t i s c e rt a i n l y possible that

a m u n i c i p a l i t y ’ s p o l i c i e s e x p l i c i t l y

ac k nowledg e that substantial r isks of serious harm ex ist. Second, numerous ca s e s have held that mun i cipalities act throug h their policy makers, w ho are, of cour s e, natural

1 A s I e x p l a i n i n P art B
, I q u estio n w h eth er p ro o f of su

b j ectiv e in d if f eren ce is req u ired in a Fo u rteen th A m en d m en t case af ter th e Su p rem e Co u

rt’ s d ecisio n

in K in g sley

. T h is sectio n assu

m es, co n sisten t

w ith o u r p reced en t, th at Fa rmer still ap p l ies to a claim arisin g u n d er th e Fo u rteen th

A m en d m en t.C A S T R O V

. C O U

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persons, w ho se state of mind can be determined.

Gibson v. County of W

a shoe

, 290 F

. 3d 1175, 1188 n.10 (9th Cir. 2002). B ut those two ty pes of evidence are not the o nly
way to show such knowledg e. Here, as the majority e x plains,
state reg ulations applicable to the County anticipa t e d the precise h arm that b efell Plaintiff and r eq u ired a particular audio-monitoring sy stem to prevent that harm. Moreover, the County affirmatively adopted those same reg ulations into its municipal c ode. I would hold, as a matter of law, that entities have actual knowledg e of (1) laws that they enact, including those a dopted by incorporation, a n d (2) state reg ulations
g overning their conduct.

At the time of the attack i n t h i s c ase, the L os Ang eles County Code “adopted by reference and incorporated into

. . . the L os Ang eles County Code as if fu l l y s e t forth below” certain chapters of the California B uildin g Code, including chapter 1 2
, w hich includes the reg u lation requiring that sobering cells be equipped w ith an audio-monitoring sy stem. 2 L .A. County Code, tit. 26, ch. 1, § 100 (2007). The County B oard of Supervisors’ affirmative a doption of a reg ulation aimed a t mitig ating the risk to individuals housed in sobering cells is conclusive proof that the County had actual knowledg e of the risk of the h arm that befell Plaintiff. See Bd. of Cnty. Comm’rs v. Brown
, 520 U.S. 397, 4 05–06 (1997)

2 Ev en th o u g h th e co u n t y co d e p ro v isio n w as n o t in ev id en ce in th e d istrict co u

rt, w e m ay tak e j u dicial n o tice o f i t b e cau se it is “ n o t su b j ect to reaso n ab l e d i sp u te” an d “ can b e accu rately an d read ily d eterm in ed f ro m

so u rces w h o s e accu racy can n o t reaso n ab ly b e q u estio n ed .” F ed

. R

. Ev id

. 2 0 1 (b )(2 ); S

a n ta Mo n ica Fo o d No t Bo mb s v. C i t y o f S a n ta Mo n ica
, 4 5 0 F.3 d 1 0 2 2
, 1 0 2 5 (9 th Cir. 20 0 6 ); see id

. at 1 0 2 6 n .2 (h o ld in g th at l o cal

o rd in an ces are “ p ro per su b j ects f o r j u dicial n o tice”).C A S T R O V

. C O U

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N G E L E S 42

(describing Owen v. City of I n d ep endence

, 445 U.S. 622 (1980), and Newport v. Fact Concerts, Inc.
, 4 5 3 U.S. 247 (1981), a s m unicipal liability cases involving “no d ifficult questions of f

ault” because they involved “formal decisions of municipal leg islative bodies”).

B u t I would not r equire such an a ffirmative act to show that an entity

possesses the requisite knowledg e to support a finding of de l i b e rate indifference; I a lso would hold, as a matter of l a w, that g overnmental entities, as distinct from individuals employ ed by those entities, know the statutes a nd
reg u l ations g overning their c onduct. The majority contends that such a rule impermissibly e quates actual knowledg e with constructive knowledg e

. Maj. op. at 33–34. I t is true that the Supreme Court has written that, in actions ag ainst individuals and entities alike, a plaintiff must e stablish that the defendant possessed the “state of mind required to prove the underly ing

v i o l a t i o n

. ” Brown
, 520 U.S. at 4 05. B u t I do not think that the Court meant for u s to ig nore salient differences b etween individuals and entities.

I n Davis v. Scherer

, 468 U.S. 183, 196 (1984), the Court hel d t h a t individual officers are not deemed to have k n o w l e d g e o f t h e “ v o l u m i n o u s , a m b i g u o u s , a n d contradictory

” reg ulations g overning their conduct. (I nternal quotation marks omitted.) The Court ex plained that officers “must often act swiftly and firmly ,” precluding “an ex tensive inquiry into

. . . the a

pplicability an d importance of the rule
at issue” and “the possible leg al con s e q u e n ces of their conduct.” Id. at 195–96 (internal quotation marks o m i tted). That reasoning does not apply to entities
, which by definition do not make t h e s ort of time-pressured decisions that i n d i v idual officers make. Moreover, because an entity does
not have an actual mind, the q u e s tion of what the entityC A S T R O V

. C O U

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“knows” is different from the question of what an individual “knows.” Cf. United States v. 7326 Highway 4 5 N.
, 965 F .2d 311, 31 6 (7th Cir. 1992) (“As a leg al fiction, a corporation

ca n n o t ‘know’ like an individual ‘ knows.’”). 3 I n lig ht o f these differences between e n t i ties and individuals, I would hold that w here, as here, positive law a p p licable to the entity speaks directly to the risk o f harm that befell a p l a i n t i ff, the entity defendant has the requisite knowled ge o f that risk to disreg ard it deliberately

.

B

. Recent Supreme Co u r t precedent calls into question

our casela w governing Fourteenth Amendment failure-to-protect claims

.

As ex plained above, I would hold, as a matter of law, that the entity Defendants h ad actual kn o w l e dg e of the risk to Plaintiff and were d eliberately indifferent to that risk. B ut after the Supreme Court’s decision in Kingsley

, I do u b t that

a ctual knowledg e is necessary to support a finding o f deliberate indifference u nder the F ourteenth Amendment. I n my v iew, Kingsley undermines Clouthier v. County of Contra

3 W ere w e w

ritin g o n a b lan k slate, o n e p o s s i b l e r e s o lu tio n o f th e

co n cep tu al d if

f icu lty h ere w o u ld be to h o ld t h at en t ities can n o t b e h eld liab le f or co n stitu

tio n al v io latio n s w

h en th e u n d erly in g v io latio n req u i res

su b jective in ten t

. In d e e d

, t he Su p rem e Co u

rt h as tak en th at co u rse in a d if f eren t co n tex t. S

ee City o f Newp o rt v. Fa ct Co n certs, In c. , 45 3 U .S. 2 4 7
, 2 67 (1 9 8 1 ) (h o l din g th at p u ni t i v e dam ag es can n ot sen sib l y b e

asse ss e d ag ain st a g o v ern m en tal en t ity b ecau se th e en tity “ can h av e n o

m alice in dep en d en t o f th e m alice o f its o f f icials”). B u

t th at o p tio n is n o t

o p en to u s, b ecau se th e Su p rem e C o u r t clearly h as stated th at

m u n icip alities can h av e su

bj ectiv e k n o w led g e an d in ten t f

o r th e p u rp o ses

o f § 1 9 8 3 l iab ility

. S

ee Bro wn , 5 2 0 U .S. at 4 0 5 (h o ld in g th at “ p ro o f th at

a m u n icip ality ’ s l e g i slativ e b o d y o r au th orized d ecisio n m ak er h as in ten tio n ally d ep riv ed a p lain tif f o f a f ed erally p ro tected rig h t n ecessarily estab lish es th at th e m

u n icip ality

acted cu lp ab l y ”).C A S T R O V

. C O U

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N G E L E S 44

Costa
, 591 F .3d 1 232, 1243 ( 9th Cir. 2010), in which we h eld that proof of such knowledg e is required. 4

A pretrial detainee’s rig ht to be protected from h a r m at the hands of other inmates stems f r o m t h e Due Process C l a u se of the F ourteenth Amendment, rather than from the Cruel a nd Unusual Punishment Clause of the Ei ghth Amendment. Gibson

, 290 F.3d at 1187. Notwithstanding those different constitutional sources, in Clouthier

, 591 F .3d
at 1 2 4 2

– 43, we held that the Eig hth a nd F ourteenth Amendment stand a rds are identical for failure-to-protect claims. According ly

, we h eld that the standar d i m p o s e d b y Farmer —which involved an Eig h th Amendment claim broug ht by a convicted prisoner—a p plied to claims broug ht by pretrial detainees. Id. at 1242.

I n Kingsley

, 135 S. Ct. at 2475, t h e S u p reme Court h eld that ex cessive force claims broug ht by c o n v icted prisoners under the Eig h th Amen d m e nt’s Cruel and Unusual Punishment Clause differ q ualitatively from ex cessive force claims broug ht b y pretrial detainees und e r t he F ourteenth Amendment’s Due Process Clause. U n d e r Kingsley

, a pretrial detainee, unlike a convicted prisoner, need not prove that the defendant subjecti v e l y k new that the f

orce a pplied

was ex c essive; that state-of-mind i n q u iry is “solely

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

4 Desp ite th e co n sid erab le ten sio n b etw een Kin g sley an d o u r preced en t, th e co n f l i c t m a y n o t b e su f

f icien t t o m eet t

h e “ h ig h b ar” th at w ou ld

au th orize ou r p an el to d ep art f ro m t h a t p r e c ed en t. Miller v. Ga mmie
, 3 3 5 F .3 d 8 89
, 9 0 0 (9 th Cir. 20 0 3) (en b an c). Fo r th at reaso n , I d o n o t d issen t f ro m th e m a

j o r i ty ’ s d escrip tio n o f th e ap p ro p riate s tate- o f

- m in d in q u iry f o r th e in div id u al d ef

en d an ts.C A S T R O V

. C O U

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There are important differences between ex cessive force and failure- t o

- protect claims; n otably

, a failure-to-protect claim d o e s not necessarily involve an affirmative act b y the defendant. 5 B ut there also are important simila rities. Most sig nificantly

, the claims share constitutional sources; they a re drawn f r om the F ourteenth Amendment f or pretrial detainees, but from the Eig hth A mendment f or c onvicted prisoners. Therefore, the reasoning of Kingsley i s i n serious tension, if
not outrig ht conflict, with the reaso n i ng of Clouthier

. See Miller , 335 F .3d at 900 (“[ T] he issues decided by the hig her
court need not be identical in order to b e controlling

. Rather, the r elevant c ourt of last resort must have undercut the theory

or reasoning u nderlying the prior c i rc uit precedent in such a way that the cases are clearly

irreconcilable.”).

Clouthier p rovided a sing le rationale for holding that the Farmer test applied equally to Eig hth and Fourteenth Amendment claims: I t read Bell v. W o l f i s h

, 441 U.S. 520, 535 & n.16 (1979), to require proof of p u n i t ive intent for failure-to-protect c laims, whether tho se claims arise in a pretrial or a post-conviction contex t. Clouthier

, 591 F

. 3d at 1241–43. B u t Kingsley rejected precisely that reading o f Bell ; althoug h unconstitutional “’punishment’” of pretrial detainees “ can consist of actions t aken with an ‘ex pressed intent to punish,’” p roof of such intent is n o t required. Kingsley

, 135 S. Ct. at 2473 (emphasis added) (quoting B ell

,

5 I disag ree w ith t h e m a

j o rity ’ s statem en t th at w e ev alu ate ex cessiv e f o rce claim s, as d istin ct f ro m d elib erate in dif

f eren ce claim s, w ith o u t reg ard to “ w

h atev er th o u g h t s, k

n o w l ed g e, o r m o tiv atio n ” d r o v e th e d ef en d an t ’ s actio n s. Maj

. o p. at 14

. Wh en a co n v icted p riso n er b rin g s an

ex cessiv e f

o rce claim

, “ th e co re j u d icial in qu iry is

. . . w h eth er f o rce w as ap p lied i n a g o o d

- f

aith ef f o rt to m ain tain o r resto re d iscip l in e, or

m alicio u sly an d sad istically to cau se h a r m

. ” Hu d so n v. McMillia n , 5 0 3 U.S. 1 , 7 (1 9 9 2 ).C A S T R O V

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441 U.S. at 538). I n evaluat i n g t h e challeng ed prison

c o n d i t ions in Bell

, the Court “did not consider the pris o n officia l s ’ subjective beliefs about the policy

. Rather, the Court ex a mined objective evidence

. . . before concluding that
t h e c onditions were reasonably related to the leg itim a t e purpose of holding detain e e s for trial and did not appear

e x cessive in r elation to that purpose.” Id. (citin g B e l l

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

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

awareness of the risk, cannot survive Kingsley

. A nd because Clouthier ’s only reason for ap p l y i n g the same test in the E ig h th a nd F ourteenth Amendment contex ts was that no w

defunct reading

of Bell , it is questionable whether Clouthier remains g ood law on this point.

Moreover, Kingsley emphasiz ed the importance of the constitutional source of the asserted rig ht: “The lang u ag e o f the two Clauses differs, and the nature of th e c l a ims often differs. A nd, most importantly

, pretrial d e t a inees (unlike convicted prisoners) cannot be punished a t all, much less maliciously and sadistically .” 1 35 S. Ct. at 2475 (internal quotation marks omitted). I n lig ht of Kingsley ’s focus on the differences between the rel e v a n t c o n s titutional provisions, we oug ht not apply a decision g rounded in t h e E i ghth Amendmen t t o a claim arising under the F ourteenth Amendment. Cf. Graham v. Connor , 490 U.S. 386, 393–94 (1989) (“W e reject this notion that all e x cessive force c laims broug ht under § 1983 are g ove rned by a sing le g eneric standard. As we have said many times, § 1983 is n o t itself a

source of substantive rig hts, but merely provides a method for vindicating federal rig hts elsewhere conferred.” (internal quotation marks omitted)). Thus, I do not t h ink that either Clouthier or Farmer fully answers wha t state-of-mind inquiry is required in this case.C A S T R O V

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B e cause I would hold that the e ntity Defenda n t s h ad actual knowledg e o f the risk to Plaintiff, Kingsley would not chang e the outcome tha t I would reach even if we were not bound to follow Clouthier

. B oth the Supreme Court and we have held that the due process rig hts of a pretrial detainee a re at least as g r eat as the Eig hth Amendment p r o tections available to a conv i cted prisoner. City of Revere v. Mass. Gen. Hosp.
, 463 U.S. 239, 244 (1983) (citing Bell , 441 U.S.
at 535 n

. 1 6 ); accord Or. Advocacy Ctr. v. Mink

, 322 F .3d 1101, 1120, 1 121 n.11 ( 9 th Cir. 2003). Thus, pr o o f that a defendant had actual k

n owledg e o f t he risk of harm, which
amounts to proof that actions were taken “with an ‘ex pressed intent to punish,’” Kingsley

, 135 S. Ct. at 2473 (quoting B ell

, 441 U.S. at 538), necessarily satisfies the F ourteenth Amendment state-of-mind inquiry

.

B u t, in my view, Kingsley strong ly sug g ests that proof o f actual knowledg e of the risk is not required for a claim arising under the F ourteenth Amendment

. I n Kingsley

, the Supreme Court ex p lained that, in an ex c essive force case,

there are

. . . two s e p a ra te state of mind questions. T he first concerns the defendant’s
state of mind with respect to his phy sical
acts— i.e.
, h is state of mind with respect to the b r i n g i n g a b o u t o f c e r t a i n p h y s i c a l
consequences in the wor l d. The second
qu es t ion concerns the d efendant’s state o f mind with respect to whether his use of force was “ex cessive.”

Id. at 2472. As to the f

irst inquiry

, the Court stated that “the defendant must p ossess a purposeful, a knowing

, or possibly

a reckless state of mind,” b ecause “’liability for n egligentlyC A S T R O V

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inflicted harm is categ orically beneath t h e t hreshold o f constitutional due process.’” Id. (quoting County of Sacramento v. Lewis
, 523 U.S. 833, 849 (1998)). B y contrast, for the second inquiry

, a pretrial d etainee need provide “ only objective evidence that the challeng ed g overnmental a c t i o n is not rat i onally related to a leg itimate g overnmental objective o r that i t i s e x c e ssive in relation to that purpose.” Id. at 2 473–74. I n the ex cessive force contex t, t h a t step

re q u ires the plaintiff to demonstrate that the force used was “objectively

unreasonable.” Id. at 2473.

Farmer sets up an analog o us two- p a rt state-of-mind inquiry for failure-to-protect clai m s

. I n order to be deemed “deliberately indifferent” to a particular r isk under the Eig hth Amendment, a defendant “ must both b e aware of facts from which the inference c ould be drawn that a substantial risk of serious harm ex ists, and he must also dra w t h e inference.” Farmer
, 511 U.S. a t 837. Under Kingsley

, the first part of the standard—requiring subjective awareness of facts g iving r ise
to an inference of a substantial risk of serious harm—remains unchang ed. 6 B ut I read Kingsley to sug g est that, for c laims arising under the F ourteenth A mendment, a plaint i ff need only show that a reasonable pe r s o n i n the defendant’s shoes would draw that inference. 7

6 A n d th e act o r o m issio n itself still m u st b e in ten tio n a l o r p o ssib ly reck less. Fo r ex am

p le, a g u ard w

h o f ails to tak e actio n b ecau se h e o r sh e h as su d d en l y

f allen ill w ou ld n o t b e d elib erately in d if f eren t.

7 T h i s case illu s trates w

h y it is im p o rtan t th at o u r p reced en t g et th is issu e rig h t. A p p l y in g th e p o st- Kin g

sley stan d ard ou tlin ed in th is s ectio n , th e

m a j o rity w o u ld reach a d if f eren t co n clu sio n reg ard in g th e en t i t y Def en d an t s ’ l i a bility

, becau se w e ag ree th at t h e state reg u latio n s p u t th e

en tity Def en d an ts o n

at l east co n stru ctiv e n otice th at t h e f ailu re to in stall

an i n m ate- o r so u n d

- actu ated au d io

- m o n i to rin g sy ste m ex p o sed in m atesC A S T R O V

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F or the foreg oing rea s o n s , I w ould affirm the jury ’s verdict ag ainst the entity Defendants. I therefore dissent from Part I I .D.2.

to a su bstan tial risk

o f v io len ce at th e h an d s o f

o th er in m ates. W e o u g h t to reh ear th i s case en b an c so th at w e can tak e u p th is im p o rtan t issu e.