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

S H A N E H O R T O N , by his Guardian Ad L item Yvonne Horton,

Plaintiff-Appellee

,

v

.

C I T Y O F S A

N T A M A R

I A ; S A N T A M A R I A P O L I C E D E P A R

T M E N T ; A N D R E W B R I C E , Defendants-Appellants. N o. 15-56339

D.C. No. 2:14-cv-06135- SJ O-PJ W

OPI NI ON

A ppeal from the United States District Court for the Central District of California S. J ames Otero, District J udg e, Presiding

Arg ued and Submitted F ebruary 15, 2018 Pasadena, California

F iled F ebruary

1, 2019

B e fore: Marsha S. B erz on and J ay S. B y bee, Circuit J u dg es, and Sharon L

. Gleason, * District J udg e.

Opinion by J udg e B erz on; Dissent by

J udg e B y b e e

* T h e Ho n o rab le Sh aro n L

. G leaso n , Un i ted States District J u d g e f or th e District o f

A lask a, sittin g b y

d esig n atio n

.H O R T O N V

. C I T Y O F S A

N T A M A R

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SUMMARY * *

Civil Rights

The panel reversed in part and affirmed in part the district court’s o rder deny ing summary judg ment to d efendants in an

a c tion broug ht pursuant to 4 2 U.S.C. § 1983 and Californi a law by a pretrial detainee who alleg ed t h a t defendants violated his F ourteenth A mendment ri gh t t o be safeg u arded from injury and his state law rig h t t o medical care while in custody

.

After being arrested, plaintiff was detained in a temporary holding cell and left u nattended for arou n d h al f an hour, during which time he attempted suicide, ca using p ermanent and severe injury

. With his mother acting a s g uardian ad litem, plaintiff f

i l ed suit a lleg ing

, in part, that defendants

were deliberately indifferent to his safety because they failed
to take appropriate a c tion after plaintiff’s mother had warned a police officer over the phone that plaintiff was suicidal.

The panel held that defendant O fficer B rice was entitled
to qualified immunity as a matter of law be c ause a reasonable officer would n o t h ave known that failing to attend to plaintiff immediately a fter the phone call would be unlawful under the law at the time of the incident. The panel therefore reversed the d istrict court’s denial of summ a ry judg ment in favor of Officer B rice on the § 1983 claim.

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

t es n o p art o f th 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.H O R T O N V

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The panel nex t held t hat it lacked jurisdiction to r eview the district court’s denial of summary judg ment in favor o f the municipal def

en d a nts on the § 1 9 83 claim. The panel noted that when a municipal defendant’s motion for summary judg ment is “inex tricably intertwined” with issues presented in the individual offi c e r s ’ qualified immunity appeal, this
court may ex e rcise pendent party appellate jurisdiction. The panel h e l d t h at in this c ase appellate resolution of the officer’s appeal did not “necessarily ” resolve th e p e n d ent claim of municipal liability

. The panel noted that its holding that Officer B r ice was e ntitled to qualified immunity did not preclude the possibili t y that a constitutional violation may nonetheless have taken p lace, including as a r e s ult of the collective ac t s o r omissions of Santa Maria Police Department officers. T h e panel remanded to permit the district court to consider t h e claims in lig ht of this court’s
recent g uidance in Castro v

. County of Los Angeles

, 833 F .3d 1060 (9th Cir. 2016) (en banc), and G o r d o n v

. County of Orange , 888 F .3d 118, 1125–26 (9th Cir. 2018).

F inally

, the panel a ffirmed the distr i c t court’s d enial o f
summary judg ment to defendan t s o n the state law claim broug ht pursuant to California Government Code § 845.6, concluding that there was a g enuine issue of material fact as to liability

under state law.

Dissenting in part, J udg e B y b ee joined the majority ’s holding that Office B rice was entitled to qualified immunity for plaintiff’s d eliberate-indifference claim under 4 2 U .S.C. § 1983 and that t h e p a n el lacked jurisdiction over the municipal liability claim. J udg e B y bee would have reversed the district c ourt’s d enial of summary jud gment on the state law claim, because he believed that there was no basis under California law for subjecting Officer B rice to suit.H O R T O N V

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COUNSEL

Timothy T. Coates (arg ued) and J o n athan H. E i s e n man, Greines Martin Stein & Richland L L P, L o s Ang eles, California; Kristine L . Mollenkopf, Assistant City Attorney
, Santa Maria, California; Bruce D. Praet, F erg uson Praet & Sherman, Santa Ana, California; for Defendants-Appellants.

Martin N. B u chanan (arg u ed), L aw Offices of Martin N

. B uchanan, San Dieg o, California; Rafael Gonz alez and J ared M. Katz
, Mack Staton Mullen & Henz e l L L P, Santa B arbara, California; J oseph Robert F innerty a n d Robert W

. F innerty

, Girar d i Keese, L os Ang eles, California; for PlaintiffAppellee.

OP INION

B ERZ ON, Circuit J udg e :

This case concerns the attempted suicide o f a jailed pretrial detainee. Shane Horton was arr e s t e d for slashing an acquaintance’s car tire a nd taken to the loc a l police depar t m e n t , where he was detained in a temporary holding cell. L e ft unattended f

or around h alf an hour while the officer in charg e spoke to h is mother and completed paperwork, Horton removed his belt, fed it throug h the cell door bars, a nd hang ed himself, causing permanent a nd severe b rain damag e

.

W ith his mother acti n g a s g u ardian ad litem, Horton broug ht suit under 42 U.S.C. § 198 3 a nd California law. He contends that the City o f Santa Maria, the Santa Maria Police Department, and several individu al o fficers violated his F ourteenth Amendment rig ht to be sa f eg uarded from injuryH O R T O N V

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and his state law rig ht to medical care while in custody

. W e

reverse the d istrict court’s denial of qualified immunity on the § 1983 claims as to Officer Andrew B rice, conclude that we lack jurisdiction to review the denial of summary judgm ent

on the § 1983 claims as to the municipal defendants, a n d affirm the district court’s denial o f summary judg ment on the state law claims.

I. F actual and P rocedural History

I n the months leading up to hi s a rrest, eig hteen-y ear-old Horton h ad g iven his mother reason to be concerned. He used drug s, including marijuana, “Molly ” (a pure form of 3 ,4- M e t h y l en e d i o x y

m e t h a m p h e t a m i n e )

, an d p h e n c y c l i d i n e (PCP), and contemplated suicide. On December 1 3, 2012, he took PCP and “started f reak i ng o ut.” He ex ting u ished cig arettes on his own face and hands, punched his fist throug h a window, tried to c ut his wrist with a piece of broken g lass, held a kitchen knife pointed at his throat

, a n d

, h is mother understood, threatened to kill himself. That nig ht, h e was admitted to the emerg ency room, w here he w as initially h eld

as a suicide risk. B ut h e specifically denied to hospital staff
any suicidal ideation, and t h e doctors came to suspect “that [ his p roblem] was mostly drug s.” Horton was discharg ed the

mo r n i ng o f December 14, 2 012, after an emerg ency room phy sician and a member of the county ’s Crisis and Recovery Emerg ency Services ( “CARES”) team ag reed that he was not suicidal.

Approx imately two weeks later, on the mo r n i ng o f December 29, 2 012, Horton a n d his g irlfriend became involved in a phy sical alt e r c a t ion. As his g irlfriend was driving away with a friend, Horton pulled out a folding knife and slashed the tire of the friend’s car.H O R T O N V

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Officers Andrew B rice and Duane Schneider soon arrived

on the scene and found Horton. H orton admitted to slashing the tir e , p ointed the police to the knife, and remained calm and cooperative as the officers a r rested him for misdemeanor vandalism.

Officer B r ice stay ed to interview Horton’s g irlfriend. She disclosed that Horton had hit her several t i mes in the p ast, chased her with a knife, and stabbed a friend in the leg . She also revealed that he had made c o mments about killing police and sy mpathiz ing with the suspects in r ecent mass homicides.

W h ile Officer B rice was speaking to Horton’s g irlfriend, Officer Schneider transported H orton to the police statio n, where he patted Horton down, confiscated his wallet a nd iPod, and placed h im in a temporary holdin g cell. Officer Schneider did not remove Horton’s j ewelry or belt. A s Officer Schneider prepared to leave, Horton said h e was feeling anx ious and “would really like to speak to someone”

— “ not a therapist. Even y o u.” As they talked, Horton

ex p lained to Officer Schneider that i t had b e en “a really

, really

, really roug h three weeks s t raig ht.” He described his
recent d r ug use and the w indow-brea k i n g incident, a nd said that he “had the shit b eat out o f me fuckin g t h o u s ands o f times.” A t one p oint, Officer Schneider asked if he had any medical problems; Horton responded, “No, sir. N ot that I know of. I ’m real healthy as I ’ m aware. I ’m just — besides feeling anx ious rig ht now and I h a t e b e ing locked in a box . . . . I don’t like being in a cell.”H O R T O N V

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Eventually

, Officer S chneider left, stating that he would “[ p] robably do a psy ch or something .” 1 H e instructed Horton
to wave at the security c a mera if he needed any thing

. A few mi n u tes later, another p olice officer asked Horton if he h ad
any medical problems; Horton ag ain said he did not.

A p prox imately an hour and a half later, Officer B ric e returned to the police station. O fficer B rice spoke to Horton privately in an interview room, ex plaining that Horton’s
g irlfriend and her f

riend both said that Horton slapped the
g irlfriend, a

nd reporting that she had a mark on her consistent with th a t a l leg ation. Officer B rice said that Horton’s
g irlfriend had been g ranted a restraining order ag ainst him for

one week, that he w o uld be charg e d with felony domestic violence, and that he had the option to p ost bail. At o ne point during the c onversation, Officer B r ice asked Horton if h e h ad
any medical conditions, and Horton once ag ain replied, “No, sir.”

At the end of the interview, Officer B rice broug ht Horton back to the holding c ell and g a ve him the opportunity to c all his mother, Yvonne Horton. 2 Horton told his mother, “ I ’ m in jail r ig h t now. I ’m g oing t o ge t b o o ked and g o to [ the main county jail in] Goleta. Y ou can choose to be there, g et me out

on bail o r n o t

. . . . I would appreciate it [ if y ou came to g et

me out on bail]

, but it is u p to y ou.” Yvonne apparently said she w ould not bail him out, and he ended the conversation b y say ing

, “I t’s okay

, Mom. I ’m sorry

. . . . All rig ht. I love

1 Of f icer Sch n eid er p resu m ab ly m ean t t h at h e w as co n sid erin g

o rd erin g a p sy ch iatric ev alu atio n o f Ho rto n

.

2 W e u s e “ Y v o n n e” in th is o p in io n to d i stin g u ish th e m o th er f ro m h er

so n

.H O R T O N V

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y ou.” B efore hang ing up, Yvonne requested t o speak privately to Officer B rice.

Officer B rice left Horton in the cell and, out of Horton’s

ear s h o t , called Yvonne back. Officer B rice spoke with Yvonne for ten to fifteen minutes, during which time, she stated in her deposition, she relay ed “every thi n g ” about the December 1 3, 2012 incident — Horton’s use o f d r u gs, the cig arette marks on his face and hands, the knife he held to his throat, his hospitaliz ation with an initial “5150” hold for risk of suicide, 3 the CARES official’s conclusion that he c ould be discharg ed because his conduct was due to drug s not suicidal ideation, a

nd h er disag reement with that conclusion. Yvonne
t e s tified that she a lso told Officer B rice that her son w a s depressed and suicidal, that she w as really worried a bout him, and that she believed he could b e h e l p ed in the judicial
sy stem. And she recounted that she instructed Officer B rice to “please, watch him, please look after him, please.” 4

3 Calif o rn ia W elf

are an d In stit

u tio n s Co d e § 5 1 5 0 au th o rizes qu alif ied

o f f icers o r clin ician s to in v o lu n tarily tak e in to cu sto d y a p erso n w h o , “ as

a resu l t o f a m en t al h ealth d iso rd er, i s a d an g er to o th ers, o r t o h i m s elf or h erself , o r g rav ely

d isab l ed .” Cal. W elf

. & In st. Co d e § 5 1 50

.

4 O f f icer Brice d en ies th at Yv o n n e ev er u sed th e term s “ su i cid al” or “t r i e d to k ill h im self

.” He testif

ied th at Yv o n n e i n stead to ld h im th a t CA RES d eclin ed to k eep Ho rto n “ becau s e t h ey b eliev ed h is actio n s w ere d ru g i n d u ced ,” w

h ich s h e w as u

p set ab o u t, an d th at sh e w as eq u i v o catin g

o n w h eth er to bail h im o u

t, b ecau se sh e f

elt h er s o n w o u ld b e saf

er in j ail th an o u t. Ho w ev er, in d ecid in g th is q u alif ied im m u n ity in terlo cu to ry ap p eal, w e rely o n th e reco rd as m o st f av o rab l e to Ho rto n , s ee Sa u cier v. Ka tz , 5 3 3 U.S. 1 9 4
, 2 0 1 (2 0 01 ), overru led in p a rt o n oth er gro u n d s b y Pea rso n v. C

a lla ha n , 5 5 5 U .S. 2 2 3
, 23 6 (2 0 0 9), an d so d isreg ard Of f icer B rice’ s testim o n y

to th e ex ten t it co n trad icts th at o f Yv o n n e.H O R T O N V

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Officer B rice ex p lained to Yvonne that he was g etti n g

r e a d y to transport Horton to jail, which Yvonne understo o d
to mean that they w ould be transporting him “very shortly

. ” I n r esponse to Yvonne’s pleas to look after her son, Officer B rice reassured h er that “ [ h ] e ’s safe here.” W hen asked at deposition whether she ever told the police officer he had to
g o check o n Horton immediately

, she said, “I didn’t think that I would have to do that.

. . . I was under the impression, a fter I spoke to [ him] in that w ay , that he w ould g o back and check on him.”

I nstead of g o ing immediately back to the cell, Offic e r B rice first w ent to complete the paperwork necessary to transport Horton to jail and p repare the transport van. W h en Officer B rice went to g et Horton, approx imately 27 minutes after leaving him, 5 Officer B rice discovered Horton hang ing from the cell door, not moving

. Officer Br i c e immediately called for a ssistance, administered CPR, and w a ited for the paramedics to arrive to transport him to the hospital. Horton survived the suicide a ttempt but suffered prolong ed a nox ia, 6 resulting in severe and permanent brain damag e.

5 A s p rev io u sly n o ted

, Of f i cer B r i c e’ s co n

v ersatio n w i th H o rto n ’ s

m o th er lasted fo r a p p r o x im ately ten to f if teen m in u tes. In th e f

irst f ew

m in u tes o f t h at co n v ersatio n , Ho rto n rem o v ed th e b el t h e w a s w earin g , str u n g it th ro u g h th e cell d oo r bars, lo o ped i t aro u n d h is n eck

, an d slu m p ed d o w n

. A p p ro x im ately eig h t m in

u tes b ef o re th e p h o n e call en d ed

, Ho rto n w as n o lo n g er seen m o v in g in th e secu rity cam era v id eo

. A n o th er tw elv e to sev en t een m in

u tes elap s e d a f

t er t h e call en d ed b ef

o re Of f icer B rice retu rn ed to Ho rto n ’ s cell an d f o u n d h im h an g in g

.

6 A n o x ia ref

ers to a restrictio n in ox y g en fl o w t o th e b rain

. T h e lo n g er th e p erio d o f ox y g en dep riv atio n , th e m o re sev ere th e b rain dam ag e

an d “ t h e l ow er th e ch an ces o f

a f u ll o r m ean in g f

u l reco v ery .” Da n iels v. W o o d fo rd , 4 2 8 F.3 d 1 1 8 1 , 1 1 9 4 n .1 8 (9 th Cir. 2 0 0 5 ).H O R T O N V

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W ith h is mother acting as g uardian ad litem, Horton filed suit in October 2014 ag ainst the City of Santa Maria, the Santa Maria Poli c e D epartment, Officer B rice, Officer Schneider, and other o fficers, claiming (1) neg lig ence a nd (2) § 1983 liability on the part of the individual of f icer defendants, (3) liability on the part of the municipal defendants, see M

onell v. Dep’t of Soc. Servs
., 436 U.S. 658 (1978), and (4) liability under California Governm e nt Code § 845.6 on the part of all defendants.

The district cour t gr anted summary judg ment to all defenda n t s on the state law neg lig ence claim a nd to all officers e x cept Officer B rice on the § 1983 c laims. As to Officer B rice, the district court held that th ere is a g enuine issue of fact reg arding whe ther Officer B rice acted with deliberate indifference to Horton’s safety after speaking with his mother, and denied h im qualified i mmunity

. The court also d enied summary judg ment to the m u n i c ipal defendants

on Horton’s § 1983 claim that those def e n d a n ts f ailed to develop and adhere to a written policy reg arding suicide detection and prevention; failed to deve l o p an d a dhere to written policies reg arding the identification and evaluation o f mentally disordered detainees; a

nd failed adequately

to train their officers on s u c h p olicies. F inally

, the district court denied summary judg ment to Officer B rice and the municipal defendants on the claim under California Government Code § 845.6, but g ranted summary judg ment on that claim to the other individua l o fficers. Officer B r ice and the municipal defendants timely appealed. See Mitch e l l v. F orsyth

, 472 U.S. 511, 530 (1985).H O R T O N V

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II. Discussion

A. Section 1983 Claim Against Of f icer Brice

The district court concluded that there is a g enuine issue of fact reg arding whether Officer B rice acted with deliberate indifference to Horton’s safety after speaking with his mother, and denied the officer qualified immunity

. Qualified i m m u nity protects g overnment officials from liability for c i v i l damag es unless their conduct violates “clearly e s tablished statutory or constitutional rig hts of which a reasonable person would h a v e known.” H

arlow v. Fitzgerald

, 4 57 U.S. 800, 818 ( 1 9 8 2 )

. Plaintiffs bring ing § 1983 claims ag ainst individual o fficers therefore mus t demonstrate that (1) a federal rig ht has been violated a nd (2) the rig ht was clearly established at the time o f the violation. Pearson v. Callahan

, 555 U.S. 223, 232 (2009). W e ma y “ ex e rcise [ our] sound discretion in deciding w hich o f the two prongs o f the qualified immunity analy sis should be addressed first.” Id. at 236. Here, we beg in with the second, “c l e a r l y established”
prong , for reasons that will appear.

1. Clearly Established Law

“A clearly e stablished r ig ht is one that is sufficiently clear that every r easonable official would have und e rs t o od that what he i s d o ing violates that rig ht.” I sayeva v. Sacramento Sheriff’s Dep’t
, 8 7 2 F.3d 938, 946 ( 9th Cir. 2017) (quoting Mullenix v. Luna
, 136 S. Ct. 3 05, 308 (2015)). At the time o f the events in this case, the ge n e r ally applicable standard established that o fficers who act with d eliberate indifference
to the serious medical need of a p retrial detainee violated the detainee’s constitutional rig hts under the Due Process Clause of the F ourteenth A mendment. See, e.g. , Conn v. City ofH O R T O N V

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Reno
, 591 F

. 3d 1081, 1090–91 ( 9 t h Cir. 2010), vacated

, 563 U.S. 915 (2011), opinion reinstated in relevant part , 658 F .3d 897 (9th Cir. 2011).

Under Ninth C i r c uit law at the time o f the incident, F ourteenth Amendment cla i m s that officers acted with deliberate indifference to the medical needs of a pretrial detainee were g overned by the same “ d e liberate indifference” standard as Eig hth A mendment claims for failure to prevent harm to c onvicted prisoners. See Simmons v. Navajo County
, 609 F .3d 1011, 1017 (9th Cir. 2 0 1 0 )

, o verruled in p art by Castro v. County o

f Los Angeles

, 833 F .3d 1060 (9th Cir. 2 0 1 6) (en banc); Clouthier v

. County of Contra Costa
, 591 F .3d 1232, 1241–43 (9th Cir. 2010), overruled by Castro
, 833 F .3d 1060. That standard provided that a n officer was li ab l e for deliberate indifference only if he “kn[ ew] of a nd disreg ard[ ed] an ex cessive risk to inmate health or safety ”

— that is, if he w as “aware of facts from which t he inference could be drawn that a substantial risk of serious harm ex ists” and actually drew the inference. Simmons
, 609 F

. 3 d at 1017 (quotin g F

a r mer v. Brennan
, 511 U.S. 825, 837 (1994)). “Deliberate indifference thus req u i r e [d] an objective r isk o f har m and a subjective awareness of that h arm.” Conn
, 591 F

. 3d at 1095. (As we sha l l e x plain, that partially subjective standard has since been revised t o an entirely objective standard for pretrial detainees. See G ordon v

. County of Orange , 888 F .3d 1118, 1125–26 (9th Cir. 2018); Castro , 833 F .3d at 1068–71; infra pp. 16–18).

Two principles inform o ur clearly established law inquiry in this case. F irst, the qualified immunity inq u iry “must be undertaken in lig ht of the specific contex t of the case, not as

a b r o a d g eneral p r oposition.” Saucier
, 533 U .S. at 2 01; see also Ashcroft v. al-Kidd

, 563 U.S. 731, 742 (2011) ( “W e haveH O R T O N V

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repeatedly told courts

. . . not to define c learly established law
at a hig h level of g enerality

. ” ). I t is therefore critical whether

our case law had, at t h e time of the events in this c ase, sufficiently clarified w h e n a detainee’s imminent risk o f suicide was substantial enoug h to require imm e d iate attention.

Second, in Estate of Ford v. Ramirez-Palmer

, we recog niz ed that deliberate indifference claims “depend in part on a subjective test that does not fit easily with the qualified immunit y inquiry ,” which is an objective inquiry

. 301 F .3d 1043, 1049 (9th Cir. 2002). Estate of Ford co n c l u ded that

even where the clearly established leg al stan d a r d requires deliberate indifference, the qualified immunit y i n q u iry should
concentrate on the objective aspects of the constitutional standard. That is because “a reasonable prison official

u n derstanding that he cannot recklessly disreg ar d a

s u b s t a n t ial risk of serious harm, could know all of the facts
y et mistakenly

, but reasonably

, perceive that the ex posure in
any g iven situation was not that h ig h.” Id. at 1050. W e h eld that “[ i] n these circumstances, [ an officer] would be entitled
to qualified immunity ” under the deliberate indi fference standard. I

d.

Thus, Horton must show that, g iven the available case law
at the time of his at t e m p t ed suicide, a reasonable officer, knowing what Officer B rice k new, would have u nder stood that failing to check on Horton immediately after the phone call with Yvonne presented such a substantial risk of harm to Horton that the failure to act w as unconstitutional. W e turn to the directly

applicable case law now, which is sparse.

At the time of Horton’s incident, we h ad held that officers who failed to provide medical assistance to a detainee shouldH O R T O N V

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have known that thei r c o n d uct w as unconstitutional in two instances, n either of which resemble the facts in this c ase. See Clouthier

, 591 F .3d a t 1244–45; Conn
, 591 F .3d at 1098.

Clouthier held that a me n t a l health specialist who failed
to take adequate precautions to protect a detainee from committing suicide was not entitled to qualified im m u n ity

. 591 F

. 3d at 1245. The specialist knew that the detainee was suicidal, tha t h e h ad attempted suicide multiple times, a nd that another staff member had placed the detainee in a suicide smock and warned that he needed to be “constantly moni t o r e d t h roug hout the day to ensure his safety .” Id. at 1244. Nevertheless, the specialist removed the detainee from
reg ular suic i d e monitoring and instructed officers to return his reg ular clothes a

nd bedding

, which h e eventually used to commit suicide. Id. at 1245. U n d e r these facts, we conclud e d t

h at “a reasonable mental health professional could

n o t h a v e thoug ht it w as lawful to r emove key suicide prevention measures put in place by a p r i o r Mental Health staff member.” Id. 7

I n Conn
, we denied qualified immunity at the summary judg ment stag e to o fficers who, while transporting a detainee, observed her wrap a seatbelt around her neck in an apparent at t e m p t to c hoke herself and who threatened to commit suici d e

. 5 9 1 F .3d at 1098. The transporting officers did not take the detainee to a medical center or alert s u b s e q u ent

7 Clo uth ier also h eld th at a priso n d ep u ty ’ s k n o w led g e o f t h e d etain ee’ s p ast su icid e attem p ts an d p resen t su icid a l ten den cy w as

“ i n su f f icien t to allo w a j u ry to co n clu d e th at [th e d ep u ty ] k n ew Clo u th ier

w as s u icid al an d d elib erately ig n o red th at risk .” 5 9 1 F.3 d at 1 2 4 7

. B ecau s e th at h o ld i n g w as o n t

h e su b j ectiv e k n o w led g e p ro n g o f th e d elib erate in d if f eren ce stan d a r d

, it is n o t d irectly relev an t to Esta te o f Fo rd ’ s

o b j ectiv e reaso n ab le o f

f icial in q u iry

.H O R T O N V

. C I T Y O F S A

N T A M A R

I A 15

officers to the behavior; she then committed suicide. Id. W e concluded th a t “[ w] hen a detainee attempts or threatens suicide en route to jail, it is obvious that t he transporting officers must report the inc i d en t to those who will nex t be responsible for her custody and safety .” Id . at 1102. 8

The facts of Clou t h i e r a n d Conn do not at all resemble this case. Officer B r ice’s interactions with Horton beg an with his initial arrest, during which Horton remained cooperative. Officer B rice also spoke with Horton’s gi r l friend, w ho informed him o f Horton’s previous violent episodes, but did
not i n d i c a te any present suicidal intentions. At the jail, Officer B ric e a s k e d Horton if h e was having any medical problems, to which Horton responded in the neg ative.

Officer B rice did know that Ho rton, according to his mother, had been suicidal two weeks b efore the incident a nd that his mother thoug ht he remained a suicide risk.

B a sed on these facts, which are taken in the lig ht most favorable to Horton, a reasonable officer wou ld not have known that failing to attend to Horton immediately would be unlawful u nder the law at the time of the incident. Horton did
not attempt suicide in t h e presence of Officer B rice, a s the detainee did in Conn

. 591 F .3d a t 1102. Nor, as w as the case in Clouthier

, had he attempted suicide multip l e t i m es a nd been deemed such a risk tha t m edical specialists placed

8 W h ile Co n n d id n o t cite ex p ressly t o Esta te o f Fo r d

, i t d i d cite to Clo u th ier a n d d id ap ply an o b j ectiv e test. S

ee Co n n , 5 9 1 F.3 d at 1 1 0 2 (“ T h e relev an t , d isp o sitiv e in q u iry in d eterm in in g w h eth er a rig h t is clearly estab lish ed is w

h eth er i t w o u ld b e clear to a reaso n ab le o f f icer th at h is co n d u ct w as u n law f u l in th e situ atio n h e co n f ro n ted .” (q u o tin g S a u cier , 5 33 U.S. at 2 0 2 )).H O R T O N V

. C I T Y O F S A

N T A M A R

I A 16

s i gnificant suicide prevention measures in place, measure s removed by t h e d e f

e ndant. 591 F .3d at 1245. I n short, whether or not O f

f i c er B rice w as in fact deliberately indifferent to a substantial r isk that Horton would attempt suicide in the time before h e was checked, there was n o case law at the time of the i n c i d e nt clearly establishing that a reasonable o fficer should have perceived the substantial risk. 9

I n short, apply ing Estate of Ford

, the case law at the time of Horton’s attempted suicide was simply too sparse, a nd involved c ircumstances too distinct f rom those in this case, to establish that a reasonable officer wo u ld p e rceive a

s ubstantial risk that Horton w ould imminently attempt suicide. W e therefore rever s e t h e d istrict c ourt’s denial o f
summary judg ment on qualified immunity as to Officer B rice.

2. The Current Deliberate Indif f erence Standard

Since the incident in this c ase took pl a c e , this court has announced a new liability standard g overning F ourteenth Amendment failure-to-protect claims b y pretrial detainees. Castro v. County of Los A ngeles held t h a t , i n lig ht of the Supreme Court’s decision in Kingsley v

. Hendrickson

, 135 S. Ct. 2466 (2015), F ourteenth Amendment failure-to-prote ct

9 No r w as th ere law at th e tim e in o t h er co u rts clearly estab lish in g th at

a reaso n ab le o f

f icer w o u ld h av e k

n o w n th at f ailin g t o im

m ed iately ch eck

u p o n Ho rto n w o u ld h av e b een u n law f u l. “ In th e ab sen ce o f b i n d in g p reced en t, w e lo o k to w

h atev er decisi o n a l law is av ailab le t o ascertain

w h eth er t h e law is clearly estab l ish ed f o r q u alif ied im m u n ity p u r p o ses, in clu d in g d ecisio n s o f state co u rts, o t h e r c i rcu its, an d d istrict co u rts.” Bo yd v. Ben to n Co u n ty , 3 7 4 F.3 d 7 7 3
, 7 8 1 (9 th Cir. 2 00 4 ) (citatio n an d in tern al q u o tatio n m ark s o m itted ). We h av e n o t f o u n d o th er cases ap p ly in g th e o b j ectiv e q u alif

ied im m u n ity in q u iry p rescrib ed b y Esta te o

f Fo rd to f acts sim ilar to Ho rto n ’ s case.H O R T O N V

. C I T Y O F S A

N T A M A R

I A 17

c l aims must be analy

z ed under a purely objective standard

. Castro
, 833 F .3d at 1068–71. Under Castro
, we ask whether there was “a substant i al r i sk of serious harm to the p laintiff that could have been eliminated throug h reasonable a nd available measures that the officer did not take, thus causing the injury that the plaintiff suffered.” Id. at 1070. There is no separate inquiry

into an officer’s subjective state of mind.

W e have recently recog niz ed that Castro ’s obje ctive deliberate indifference standard ex ten d s to F ourteenth Amendment claims by pretrial detainees for violations of the rig ht to adequate m e d i c a l care. See Gordon

, 888 F .3d at 1125–26. This objective standard would therefore g uide our analy sis o f w hether a consti t u t i o nal violation occurred h ere,

were we to reach that q

uestion. B ut it has no direct b earing on the question of whether Officer B rice would have known that a failure to immediately che c k on Horton violated a clearly established

rig ht a t the time of the incident.

A s the pre- Castro standard is n o long er applicable, no purpose would be served f or future cases from delineating the application of that standard to the constitutional merits of this

cas e

. T he two-step q ualified immunity procedure “ is intended to further the d evelopment of constit u t ional
p r e cedent,” and we may decide “whether that procedure is worthwhile in particu l a r cases.” Pearson
, 555 U.S. at 237, 242. W e therefore tend to address b oth prong s of qualified immuni t y w here the “‘two-step procedure promotes the development of constitutional p recedent’ in an ar ea where this court’s g uidance is

. . . needed.” M attos v. Agarano
, 661 F .3d 433, 440 (9th Cir. 2011) (en banc) (quoting P e a r s o n , 555 U.S. at 236); see also Thompson v. Rahr

, 8 85 F .3d 582, 590 (9th Cir. 2018) (determining that a constitutional violation occurred before holding that the officer was entitledH O R T O N V

. C I T Y O F S A

N T A M A R

I A 18

to qualified immunity so that “[ g ] oing forward,

. . . the law is clearly established i n t h is scenario”). Here, Castro a nd Gordon have e stablished the law g oing forward, and furt h er delineation of the pre- Castro standard would serve little
purpose, a s it is no long er ap p l i c a b le. W e therefore confine

our inquiry to the secon d q u a lified immunity prong

— whether the const i tutional rig ht at issue was “ clearly established” at the time of the alleg ed violation.

B. Section 1983 Claim Against Municipal Def endants

As to the denial of summary judg ment i n favor of the municipal de f

e n d a n ts on Horton’s § 1983 claims, we lack jurisdiction over the municipal defendants’ appeal of that order.

Monell established that municipal i t i e s can be liable for i n f r i n g ement of constitutional rig h ts, under certain circumstances. 436 U.S

. a t 6 90–95. I n p articular, municipalities may be liable under § 1983 f or constitutional injuries pursuant to (1) an official p o licy ; (2) a pervasive practice or custom; ( 3) a failure to trai n , s u p e rvise, o r discipline; or (4) a d ecision or act by a final policy maker. A municipality may not, h owever, be sued unde r a r e spondeat superior theory

. Id. at 693–95. A plaintiff must therefore show “ deliberate action attributable to the municipality [ that] directly caused a deprivation of federal rig hts.” Bd

. o f Cty. Comm’rs v. Brown
, 520 U .S. 39 7
, 4 1 5 ( 1997). “W here a court fails to a dhere to rig o rous requirement s of culpability and causation, municipal liability collapses into re s p o n d eat superior liability .” Id.

Althoug h the r equisit e s for municipal liability under § 1983 can be string ent, m u nicipalities sued under § 1983,H O R T O N V

. C I T Y O F S A

N T A M A R

I A 19

unlike individuals, are not entitled to immunity , qualified or

o t herwise, and so, unlike individuals, can never be immu n e from trial. 1 0 The denial of summary judg ment to a municipal defendant on a Monell c laim is therefore no different from the denial of any ordinary motion f or summary judg ment, and so is not imm e d i ately appealable. See Collins v. J ordan

, 1 1 0 F.3d 1363, 1366 n .1 (9th Cir. 1996); Henderson v. Mohave County , 54 F

. 3d 592, 594 (9th Cir. 1995).

There is

, h owever, one caveat to this rule. W hen a municipal defendant’s motio n f or summary judg ment is “inex tr i c a b ly intertwined” with issues presented in the individual officers’ qualified immunity appeal, this court may

ex e r cise pendent party appel l a t e jurisdiction. See Huskey v

. C i t y of San Jose
, 204 F .3d 893, 903–05 (9th Cir. 2000)

. I n this contex t, the “inex tricably int e r twined” concept is a

narrow one. “[ A] pendent appellate claim can be reg arded a s inex tricably intertwined with a p r operly reviewable claim on collateral appeal o nly if the p endent claim is c oterminous

10 T h e co l l a t e r a l o rd er d octrin e allo w s f o r ap p eals f

ro m a n arro w categ o ry o f in terlo cu to ry o rd ers th at d o n o t fu l l y r eso lv e an actio n

. S ee Co h en v. Ben e

f i c i a l In d u s. Lo an Co rp

. , 3 3 7 U.S. 5 4 1
, 5 4 5– 4 7 (1 9 4 9) (h o ld i n g th at certain in terlo cu to ry d ecisio n s co u ld b e f in al f o r p u rp o ses of 2 8 U

. S

. C

. § 1 2 9 1 ). Den ials o f qu alif ied im m u n ity are am o n g th at

c a teg o ry

. T h e q u alif

ied i m m u n ity d ef en se sh ield s g o v ern m en t o f f icia l s f ro m th e co sts an d d istractio n s o f litig atio n an d n o t j u s t f ro m liab ility

. S

ee M i t c h e l l

, 4 7 2 U.S. at 5 2 6 (h o ld i n g th at th e d en i al o f q u alif ied im m u n i t y is im m ed iately ap p ealab le, as o f f i cials en j o y “ an en titlem en t n ot to stan d trial or f ace th e oth er b u rd en s o f

litig atio n , co n d itio n ed o n th e reso lu tio n

o f th e essen tially leg al q u estio n w h eth er th e co n du ct o f w

h ich t h e p lain tif

f

co m plain s v io lated clearly estab lish ed law ”). T h eref o re, ev en th o u g h
ap p ellate rev iew of a d en ial o f q u alif ied im m u n ity w o u ld b e p o ssib le af ter

a f in al j u d g m en t, im

m ed iate ap p eal is p erm i tted to p ro tect th e r i g h t o f

o f f icials to b e f

ree f ro m t h e b u rd en s o f l i t i gatio n

. Mu n i cip alities d o n o t

en j o y an y p arallel rig h t to b e sh i eld ed f ro m su ch b u rd en s.H O R T O N V

. C I T Y O F S A

N T A M A R

I A 20

with, or subsumed in, the claim before the c ourt on interlocutory appeal

— that is, when the appellate resolution of the collateral appeal necessarily r esolves the pendent claim

as well.” Id. at 905 (citation omitted). Here, appel late resolution of the collateral appeal does not “necessari ly ” resolve the pendent claim, for several reasons.

F irst, as w e have ex plained, o ur q ualified immunity determination with respect to Officer B rice rests solely on the “clearly e stablished” law prong ; we do not reach the question of whether Offi c e r Brice’s actions g ave rise to a constitutional violation. “[ A] municipality may be liable if an individual officer is ex o nerated on the basis of the defense o f qualified immunity

, because e v e n if an officer is e ntitled to immunity a constitu t i o nal violation mig ht still have occurred.” Gibson v. County of W ashoe

, 290 F .3d 1175, 1186 n.7 (9th Cir. 2002), o verruled o n other g r o u n ds by Castro
, 833 F .3d 1 060. T hat is, the district court could still conclude that Officer B rice did commit a constitutional violation under the now-applicable standard and, if the o t h e r requisites o f Monell liability are met, hold the municipality liable.

Second, althoug h the dis t ri ct c ourt g ranted summary judg ment in favor of the individual defenda n t s other than Officer B r ice on t h e g round that there was insufficient evidence they committe d a constitutional violation, the district court could reconsider t hose summary judg ments in lig ht o f the new, purely objec t i v e standard for F ourteenth Amendment f

ailure-to-protect claims, w hich we announced after the district court issued its order. See Castro
, 833 F .3d
at 1 068–70. F urther, the d istrict c ourt’s g ran t s of summary judg ment as to the individual officers other than Officer B rice

were not appealable, see 28 U .S.C. § 1291; W ay v. County of V e n t ura , 348 F .3d 808, 810 (9th Cir. 2003), and there f o r eH O R T O N V

. C I T Y O F S A

N T A M A R

I A 21

cannot be assumed to be correct. As a r esult, the district court could conclu d e that municipal constitutional violations occurred involving the actions o f officers o t h e r than Officer B rice.

Third, mun icipal defendants may b e liable under § 1983

even in situations in which no individual officer is held liable for violating a plaintiff’s constitutional rig hts. As we have previousl y acknowledg ed, constitutional deprivations may

occur “not

. . . as a result of actions of the individual officers, but as a result of the coll e c t i v e i naction” of the municipal defendant. Fairley v

. Luman
, 2 8 1 F. 3 d 913, 9 1 7 (9th Cir. 2002). “I f a plaintiff establishes he suffered a constitutional injury b y the City
, the f

act that individual officers a re

ex o nerated is immaterial to liability under § 1983,” reg ardless of whether their ex oneration is “on the ba sis of qualified immunity

, b ecause they w ere merely n eg lige n t , or for other failure of proof.” Id. at 917 & n.4. 1 1 Here, a r easonable jury

11 Oth er circu its ap ply th e sam e p rin cip le in Mo n ell cases. See Ba rrett

v. Ora n ge Cty. Hu ma n Rig h ts Co mm’n
, 1 9 4 F.3 d 3 4 1
, 3 5 0 (2 d Cir. 19 9 9) (“ [M]u n icip al l iab ility f

o r co n stitu

tio n al in j u ries m ay b e f

o u n d to ex ist

ev en in th e ab sen ce o f

in d iv id u al liab ility

, at least so l o n g as th e in j u ries

co m plain ed o f are n o t so lely attrib u tab le to th e actio n s of n am ed in d iv i d u al d ef

en d an ts.”); Fa g a n v. City o f Vin ela n d

, 2 2 F.3 d 1 2 8 3
, 1 2 9 2 (3 d Cir. 1 9 9 4 ) (“ [A ]n u n d erly in g co n stitu tio n al t o rt can still ex ist ev en if

n o in d i vi d u a l po lice o f

f icer v io lated t

h e C o n s titu tio n

. . . . If it can b e sh o w n t h at th e p lain tif

f s u f f ered [an ] in

j u ry , w h ich am o u n ts to d ep riv atio n

o f lif e o r l i b erty , becau se th e o f f icer w as f ollo w in g a city p o licy ref

lectin g th e city po licy

m ak ers’ d elib erate in d if

f eren ce t o co n stitu

tio n al rig h ts, th en th e City is d irectly liab le u n der s ectio n 1 9 8 3 f

o r cau s in g a v io latio n o f th e p lain tif f ’ s Fo u rteen th

A m en d m en t

rig h ts.”); An derso n v. City o f Atla n ta , 7 7 8 F.2 d 6 7 8
, 6 8 6 (1 1 th Cir. 1 98 5 ) (“ Mo n ell

. . . an d its p ro g en y d o n o t

r e q u i r e t h at a j u ry m

u s t f irst f in d an in d iv i d u al d ef

en dan t liab le b ef

ore im p o s in g liab ilit y o n lo cal g o v ern m en t .”); Ga rcia v. S a lt La ke Co u n ty , 7 6 8 F.2 d 3 0 3, 3 1 0 (1 0 th C ir. 1 98 5 ) (“ Mo n ell d o es n o t req u i re th at a j u ryH O R T O N V

. C I T Y O F S A

N T A M A R

I A 22

mig ht be able to c onclude that Horton suffered a constitutional depriv ation “ as a result of the collective inaction” of the Santa Maria Police Department, id. at 917, o r of o f f i cers’ adherence to departmental customs or practices,

see, e.g. , Tsao v. D esert P a l ace, I nc. , 6 98 F .3d 1128, 1143 ( 9 t h C ir. 2012); Long v. County of Los Angeles

, 442 F .3d 1178, 1185–86 (9th Cir. 2006).

F or ex ample, taking the fact s in the lig ht most favorable to the plaintiff, a jury

mig ht find that the Santa Maria Police De p a r t ment failed to ensure compliance with its written policy of removing belts from d e tainees. The department’s policy manual indicated that arresting or boo king officers “should” remove jackets, belts, and shoes. B ut, according to Officer Schneider, the “should” w as understood to be optional and, before December 29, 2 0 1 2
, when the incident occurred, the usual practice was not t o remove belts. An independent audit of the Santa Maria Police D epartment, conducted shortly before the incident for unrel a t ed reasons, confirmed that “many S M P D members had only a passing knowledg e of Department policies,” and that custo d y practices were “loose.”

Second, a reas o n able jury mig ht find that the Police Department failed to assure proper monitoring of its security

cameras. Officer Schneider twice told Horton that, if he needed any

thing

, he c o u ld simply wave at the security

cameras and an officer would com e o v er. B ut no officer apparently o bserved H orton looping his belt throug h the c ell door and hang ing from it f or o ver twenty m inutes before Officer B rice returned to his cell.

f in d an i n d iv id u al d ef

en d an t liab le b ef

o re it can f

in d a lo cal g o v ern m en t al b o d y liab le.”).H O R T O N V

. C I T Y O F S A

N T A M A R

I A 23

W e do not decide whether any o f t hese specific a cts o r omissions, or any other, if proven, would g ive rise to a municipal constitutional violation. Rather, o u r inquiry into the Monell c l a ims at this stag e is purely jurisdictional. F o r that purpose, we conclude that our holding that Officer B rice is entitled to qualified immunit y d o es not preclude the possibility that a c o nstitutional violation may nonetheless have taken place, including a s a result o f the collective acts o r omissions of Santa Maria Police Department officers.

I n sum, the pendent Monell c l a im is not inex tricably intertwined with a pro p e rly reviewable collateral appeal, a s

o ur resolution of Officer B rice’s appeal from the denial o f
summary judg ment on qualified imm u n ity does not

“ necessarily ” resolve Horton’s Monell claim. Huskey

, 204 F .3d a t 905. W e therefore have no jurisdiction to r eview the den i al of summary judg ment as to the municipal defendants at this stag e of the proceeding s.

C. State Law Claim Against All Def e ndants

F inally

, Of

f i cer B rice and the municipal defendants contend they are entitled to i m m u nity on Horton’s state law claim. Under California law, prison officials g enerally cannot be sued for failing to provide me d i c a l c a re to a prisoner, unless the official knows, or reasonably should know, that the prisoner requires im m e d i ate medical care. California Government Code § 845.6 provides:

Neither a public entity n or a p ublic employ ee i s l i a ble f or injury prox imately c aused by th e failure of the employ e e t o furnish or obtain medical care f

or a prisoner in his custody ; but,

ex c ept as otherwise provided by S e ctionsH O R T O N V

. C I T Y O F S A

N T A M A R

I A 24

8 5 5

. 8 a

nd 856, a p ublic employ ee, a nd the public entity where the employ ee is acting within the scope o f his employ ment, i s liable if the employ e e knows or has reason to know that the p r i s o ner is in need of immediate medical care and h e fail s to take reasonable action to summon such medical care.

Cal. Gov’t Code § 845.6. Notably

, under this statute, there is

no analog ue to t h e s econd prong of federal qualified immunity

. Also, in contrast with Monell liability , California law allows for vicarious liability of a munici p a l i t y whose employ e e violates the statute when acting within the scope o f employ ment. See Cal. Gov’t Code § 815.2.

The d istrict court denied s u m m ary judg ment to Officer B rice and the municipal defendant s o n Horton’s § 845.6 claims, concluding that a reasonable jury could find that Officer B rice h ad reason to know Horton faced a substantial risk of attempting suicide and f a iled to take reasonable action to summon immediate medical care.

One threshold matter: W e h a ve jurisdiction over the denial o f summary judg ment a s t o the state law claims. F o r state law immunity claims denied before trial, “the availability of an appeal depends on whether, under state law, the immunity f

unctions as an im m u n i ty from suit or only a s

a d e f e nse to liability .” Liberal v. Estrada

, 632 F

. 3d 1064, 1074 (9th Cir. 2011). “ A denial of s u mmary judg ment is immediately appealable when the immunity i s an immunity from suit

. . .” Id

. Section 845.6 confers immunity from suit,
not o n ly from liability

, on public e ntities and public

em p l oy ees for injuries caused by the failure to provideH O R T O N V

. C I T Y O F S A

N T A M A R

I A 25

medical care. Castan e d a v

. Dep’t of Corr. & Rehab.

, 212 Cal. App. 4th 1051, 1070–71 (Ct. App. 2013).

Reviewing the d enial of s u mmary judg ment on the state law immunity issue de novo, see, e.g. , Hansen v

. Dep’t of Treasury
, 528 F .3d 597, 600 (9th Cir. 2007), and construing the f acts in the lig ht most favorable to Horton, the nonmoving party , see H

olmes v. Cal. Army Nat’l Guard

, 124 F .3d 1126, 1131–32 (9th Cir. 1 997), we h old that there is a g enuine issue of material fact as to liability on the state law claims.

“I n order to state a claim unde r § 8 4 5

. 6, a prisoner must establish three elements: ( 1) the public employ ee knew or h ad

reason to know of the need ( 2) for immediate m e d i c al care, and (3) failed to reasonabl y summon such care.” Jett v

. Penner , 439 F .3d 1091, 1099 (9th Cir. 2006).

Officer B rice and the municipal defendants offer several
arg uments for their immunity under § 84 5

. 6

. First, they contend that Officer B r ice’s a lleg ed failure promptly to

summon medical c a

re is tantamount to a failure to diag nose, for which d efendants are immune from liabili t y under California G overnment C o d e § 855.8(a). See Cal. G ov’t Code § 845.6 (ex cepting from liability c laims o f injury resulting from di ag nosing or failing to diag n ose mental illness). W e disag ree. The scope of liability for the failure to

summon medical care under § 845.6 is broader than the scope of i m m u nity for the failure to diag nose, prescribe, o r administer treatment under § 855.8. 1 2 See Johnson v. County

12 Calif o rn ia Go v ern m en t Co de § 8 5 5 .8 p ro v id es:

(a) Neith er a pu

b lic en tity n o r a p u

b lic em p lo y ee actin g

w ith in th e sco p e o f

h is em p lo y m en t is liab le f

o r in j u ryH O R T O N V

. C I T Y O F S A

N T A M A R

I A 26

of Los Angeles

, 143 Cal. App. 3 d 298, 316–17 (Ct. App. 1983); Nelson v. State
, 139 Cal. App. 3d 72, 80–81 (Ct. App. 1982). The complaint alleg es t h a t t he defendants subjected H orton to “ a d elay in and/or denial of medical or m e n t al health care,” not (or at least

, n o t o n ly ) that they failed to diag nose or treat his mental ill n es s

— a responsibility ty pically entrusted to a medical professional. S ee Johnson

, 143 Cal. A pp. 3d a t 3 16 (“W e hold that as a matter of law a sheriff does not h av e the authority to make the final determinatio n of diag n osing that a person is, o r is not, afflicted with mental illness

. . . . [ S ] u c h determinations a re properly made by p h y sicians and other p ersons trained in the healing arts.”).

Relatedly

, the def

e n dants arg ue that the ex ception to § 845.6’s broad immunity ru l e c o ncerns the failure to

resu ltin g f

ro m d iag n o sin g o r f

ailin g to d iag n o se t h a t a p erso n is af

f licted w ith m en tal il ln ess o r ad d ictio n or f ro m f ailin g to p rescrib e f

or m en tal illn ess o r ad d ictio n

. (b ) A p u b l i c em p lo y ee actin g w ith in th e sco p e o f h is

em p l o y m en t is n o t l iab le f

or ad m in isterin g w ith du e

care th e t r e a t m en t p rescrib ed f o r m en tal illn ess or ad dictio n

. (c) No th in g in th i s sectio n ex o n erates a p u b l ic

em p l o y ee w h o h as u n d ertak en to p rescrib e f o r m en t al illn ess o r ad d ictio n f

ro m l iab ility f

o r in j u ry p ro x im ately

c au sed b y h is n eg lig en ce o r b y h is w ro n g f u l act in s o p rescrib in g

. (d ) No th in g in th is sectio n ex o n erates a pu b l ic

em p l o y ee fr o m liab i lity f

o r in j u ry p ro x im ately cau s ed b y h is n eg lig en t o r w

r o ng fu l act o r o m issio n in ad m i n isterin g an y treatm en t p rescrib ed f o r m e n t al illn ess o r ad d ictio n

.H O R T O N V

. C I T Y O F S A

N T A M A R

I A 27

summon medical care, a nd Horton’s complaint centers on Officer B r ice’s own failure to return immediately to Horton’s cell, rather than a failure to summon third-party medical care

u p o n finding Horton. B ut Horton’s complaint is no t s o limited: I t specifically a lleg es that defendants had reason to k n o w t hat “Horton was in need of immediate medical care” and “failed to take reasonable action to summon such medical care.” Officer Schneide r ’ s statement that they should “[ p] robab l y d o a psy c h

, ” indicates the kind o f care that Officer B r ic e co u ld have been ex pected to summon o nce he
g ot off the p hone with Yvonne. 1 3 H a d Officer B rice

r equested a prompt p sy c hiatric evaluation or otherwi s e summoned p sy c h i a tric care, Horton could have been f ound

sooner and the period o f a nox ia he suffered shortened. W e cannot say , as a matter of law, that Officer B r ice’s omissions did not prox imately cause injury to H o r ton. See Zeilman

, 168 Cal. App. 3d at 1187.

F inally

, defendants maintain that Officer Br ice did not know or have reason to know that Horton required immediate medical care. As to this p roposition, two California Court o f Appeal cases addressing § 845.6 claims premised on suicidal ideation a

re instructive. I n Lucas v. City o f Long Beach

, 60 Cal. App. 3d 3 41 (Ct. App

. 1 9 7 6), the decedent hung himself in his ce l l a f

ter being arrested on charg es of being drunk and disorderly

. Id. at 344–45. Reversing a jury verdict in favor o f the plaintiff, the Court of Appeal e mphasiz ed that

13 T h ere is little d o u

b t th at o rd erin g a p sy ch iatri c ev alu atio n co u ld

co n stitu te “ s u m m o n in g m ed ical care” u n d er th e Calif o rn ia co u rts’ b ro ad

v iew o f “ m ed ical care.” S ee Zeilma n v. Co u nty o

f Kern
, 1 6 8 Cal. A

p p

. 3 d 1 1 7 4
, 1 1 8 7 (Ct. A

p p

. 1 9 8 5 ) (in d icatin g th at h av in g m ed ical p erso nn el assist a p retrial d e t a i n e e o n cru tch es o r p ro v id in g a w h eelch air w ou ld

co n stitu te “ s u m m o n in g m ed ical aid ”).H O R T O N V

. C I T Y O F S A

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there was “not a scintilla of evidence in the record indicating that [the decedent’s] c onduct was any differ e n t than o ne mig ht ex pect of a p e r son intox icated on either drug s o r alcohol.” I

d. at 350.

B y contrast, in Johnson v. County of Los A n g el es , the decedent had informed sher iffs “that he was attempting to commit suicide a n d t h a t ‘people’ were try ing to torture a

nd kill him,” and the decedent’ s w ife h ad indicated that the “Decedent was a paranoid schiz ophrenic, had been repeatedly hospitaliz ed,

. . . required immediate medicati o n

. . . to correct a chemical imbalance,” and “had suicidal tendencies.” 143 Cal. App. 3d at 304. The Court o f Appeal r e v e rsed the dismissal of the complaint alleg ing that the sheriffs b reached their statutory duty to summon medical c are, and held that the sheriffs’ “ actual or constructive k nowledg e of D ecedent’s need for immediate care” a nd “ reasonable action to summon

. . . such care” were “questions of fact to be deter m i n e d at trial.” Id. at 317.

This case falls b etween Lucas and Johnson as to the need for mental h ealth care. Officer B ri c e, unlike the sheriffs in Johnson

, w as not specifically told b y e i ther H orton o r his mother that Horton “required immediate medication” o r was p r e s e ntly “attempting to c ommit suicide.” B ut there was considerably

more than “a scintilla of evidence” that Horton required immediate medical attention: Officer B rice knew from his conversation with Hor t o n ’ s g irlfriend that Horton had chased his g irlfriend with a knife, stabbed a friend in the leg and sy

mpathi z e d with the suspects in mass homicides, and, on the facts most favorable to Horton, had been told that Horton was suicidal, had p ut cig arettes ou t o n his face, h ad recently been hos p i t a liz e d after threatening to kill himself, and would benefit from “access to mental health.” Moreover,H O R T O N V

. C I T Y O F S A

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“[ i] t is sig nificant that in

. . . Lucas

. . . the court’s re jection of claims pursuant to section 845. 6 was based in larg e part upon failure of proof at trial.” Zeilman

, 168 Cal. App. 3d at 1186. A “ trier of fact ” s h o uld be permitted to determine whether the information Officer B rice had “should have g i v en rise to k nowledg e of [the] need for immediate medical care.” Id. at 1186–87.

As to immediacy

, the defendants arg u e that Officer B rice could not reasonably be ex p ected to have known the urg ency of the situation. “L iability under s e c t i o n 845.6 is limited to serious and obvious medical conditions r equiring immediate care.” W a tson v. State
, 21 Cal. App. 4th 836, 841 (Ct. App. 1993); see id. at 843. B ut that immediacy standard is, under the applicable case law, r elax ed. 1 4 I n Jett v. Penner
, we h eld that the need for “immediate m e d i ca l care” under § 845.6 arises when a p risoner is instructed that he must see a doctor “this week” to have a fractured thumb s e t a n d placed in a cast. 4 39 F.3d at 1 099. Jett thus makes clear that “immediate” does n ot sig nify urg ent; rather, the oblig a tion to

summon immediate medical care requires that the public employ e e a ct in a “timely ” manner , so as to prevent f urther injury

. Id. at 1093.

I n sum, on the facts construed in the lig ht most favorable
to H orton, a reasonable jury could conclude that Officer B rice had “reason to know” Hort o n had a “serious” medical condition and r equired “immediate medical care” as that term

14 Ca stro v. Co u n ty o

f Lo s An g eles in v olv ed th e risk o f serio u s h arm

asso ciated w ith p lacin g a co m b ativ e i n m a te in th e sam e cell as an o th er d etain ee. 8 3 3 F.3 d at 1 0 6 4

. Ca stro d id n o t ad d ress th e q u estio n o f h o w

“ i m m ed i ate” th e risk o f serio u s h arm — o r sp ecif ically o f su icid e — m

u st b e t o s u stain a d elib erate in d if f eren ce claim u n d er th at o bj ectiv e stan d ard

.H O R T O N V

. C I T Y O F S A

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is interpreted under California law, and that he failed timely
to summon such care. The partial d i s s e n t disag rees w ith us that the evidence r evealed Horton’s r isk of suicide was immediate enoug h to r equi r e prompt medical attention. Partial Dissent 42–44. B ut this disag reement is precisely the ty pe of question that should be left to a jury and not decided

on summary judg ement. “[ Q] uestions about jail personnel’s actual or c onstructive know l e d g e of a prisoner’s need for immediate medical c are as well as the reasonabl en e ss o f actions taken to meet this need are f actual questions

. . . ” Zeilman

, 1 68 Cal. App. 3d at 1184. I n reviewing the denial o f
summary judg ment, “[ t] his court does not weig h the evidence

or determine the truth of the ma t t er, but only determines whether there is a g enuine issue for trial.” B alint v. Carson City
, 180 F .3d 1047, 1054 (9th Cir. 1999); see also Zeilman

, 168 Cal. App. 3d at 1187 (“[ D] iffic u l t y in proof does not

e q uate to resolution as a matter of law.”). W hether Offi c e r B rice h ad reason to k

now that Horton faced a n e e d for immediate mental health care and faile d t o summon it is a “question[ ] o f fact to be determined at t r i al” on which “we need not

. . . speculate.” Johnson

, 143 Cal. App. 3d at 316. Having so determined, we affirm the district court’s d enial o f
summary judg ment in favor o f Officer B rice and t h e municipal defendants on the § 845.6 claim.

Conclusion

W e c onclude that Officer B rice i s entitled to qualified immunity as a matter of law and so reverse the district court’s denial of summary judg ment in favor of Officer B rice on the § 1983 claim. W e n e x t h o ld that we lack jurisdiction to review the district court’s denial of summary judg m e n t in favor of the municipal de fendants on the § 1983 claim. I n d o i n g so, we caution that, “it is not enoug h for a § 1 9 8 3H O R T O N V

. C I T Y O F S A

N T A M A R

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plaintiff merely to identify c onduct properly a ttributable t o the municipa l i t y

. The plaintiff must also demonstrate that, throug h its deliberate c onduct, the municipalit y w as the ‘moving force’ behind the injury alleg ed.” Brown
, 520 U.S.
at 4 0 4. I n holding that municipal defendants may b e liable in

a § 1983 a ction even absent a finding of liability on th e p ar t of any individual officer — a nd that we therefore lack jurisdict i o n t o review the district c o u rt’s denial of summary judg ment in favor of the mun i c ipal defendants on Horton’s § 1 9 8 3 c laims — w e ex press no v iews on whether the municipal d efendants h e r e may properly be hel d liable. I nstead, we remand to permit the district court to consider the remaining claims in lig ht of this court’s recent g u idance in Castro and Gordon

.

F inally

, we affirm the d istrict court’s denial of summary judg ment on the state law claim.

REVERSED in p a rt, AF F IRMED in part, a nd REMANDED.

B YB EE, Circuit J udg e, dissenting in part:

This is a trag ic c a se. Officer B rice ’ s p h o n e call with Horton’s mother likely l e f t him with the impression that Horton was a troubled y ou n g m a n ex periencing a d ifficult period in his life. The call could not have resulted in Officer B rice preventing the suicide attempt, a s it is undisputed that Horton h a d a l r eady hang ed himself and stopped moving b y the time the call ended. Maj. Op. 9 n.5. Bu t h ad Officer B rice c hec k ed on Horton immediately afterwards, his brain damag e could have been mitig ated.H O R T O N V

. C I T Y O F S A

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None of this means, however, t h a t O fficer B rice can be held liable under the F ourteenth Amendment o r C a lifornia law. I join the majority opinion in concluding that Officer B r i ce is entitled to qualified immunity for Horton’s deliberate-indifference claim u n d er 42 U.S.C. § 1983. 1 See Maj. Op. § I I .A. The evi d ence fails to establish that “a reasonable officer w ould

. . . h ave known that failing to attend
to Horton immediately w ould b e u nlawful.” See id

. at 15. The same reasoning dictates that we hold that Officer B rice is entitled to state-law immunity under California Government Code § 8 45.6. I would therefore also reverse the district c ourt as to this claim, and I r espectfull y d i s s e nt only from this portion of the opinion. S ee Maj. Op. § I I .C.

A deliberate-indiffere n c e claim under § 1983 is not identical to a claim broug h t under § 845.6. The Ca l i f o rnia

s t atute is unusual, a s it “confers a broad g eneral immuni t y ”

on public e ntities and their employ ees, W atson v. State
, 26 Cal. Rptr. 2d 262, 2 6 5 ( C a l. Ct. App. 1993), y et simultaneously imposes an affirmative duty on them that can g ive rise to liability

under n arrow circumstances, Johnson v. County of Los A ngeles

, 191 Cal. Rptr. 704, 717 (Cal. Ct. App. 1983); Nelson v. State
, 188 Cal. Rptr. 479, 483 (Cal. Ct. App. 1982). Specifically

, the statute’s f irst clause c onfe rs i m m unity from suit “for injury p r ox imately caused b y the failure of the employ ee to furnish or obtain medical care for

a prisoner in his c u s t o d y

. . . .” Cal. G ov’t Code § 845.6 (emphasis added); see also Castaneda v. Dep’t of Corr. & Rehab.

, 151 Cal. Rptr. 3d 648, 663 (Cal. Ct. App. 2013). The second clause is the e x ception to this rule, ex posing a public

1 I also j o i n th e o p in io n ’ s su b seq u en t sectio n co n clu d in g th at w e lack j u risd ictio n to rev iew t h e d en ial o f su m m ary j u d g m en t as to H o rto n ’ s Mo n ell claim

. S ee Maj . Op . § II.B

.H O R T O N V

. C I T Y O F S A

N T A M A R

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employ e e to suit only when he “knows or has reason to know that the prisoner is in need of immediate medical care a nd he fails to take reasonable action to summon such medical care.” Cal. Gov’t Code § 845.6 ( emphasis a dded). “Thus, section 845.6 c reates out of the g eneral immunity a limited cause o f action ag ainst a public entity for its employ ees’ f a i l u re to

summon immediate medical c ar e only

. The statute does not create l iability of the public entity for malpractice in furnishing or obtaining that medical care.” Ca s t a n e da

, 151 Cal. Rptr. 3 d at 6 63 (first emphasis added) (citations omitted).

To state a claim unde r § 845.6, a p laintiff must satisfy three elements. See id

. F irst, he must establish that whatever action h e contends that the defendant should have taken—the
statute is aft er all ex plicitly p remised only on a failure to act—constitutes summoning medica l c a re. See Cal. G ov’t Code § 845.6. Nex t, there is the knowledg e component: the plaintiff must prove that the defendant kn e w or should have known that the plaintiff was in need of this medical care a nd that the need was immediate. Id. F inally

, the plaintiff must establish that the d efendant fail e d to a c t reasonably to meet the medical need. I

d

.

Horton cannot satisfy either of the first two elements. He h a s t h u s failed, a s a matter of law, to establish that Officer B rice may be subjected to suit under state law. I address e ach element in turn.

I

S e ction 845.6 creates liability only for the failure t o

summon medical c are rather than for a l l o m i ssions b y a public employ ee that cause injury to a person in his custody

.H O R T O N V

. C I T Y O F S A

N T A M A R

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Consider, for instance, a Sheriff’s deputy who is tasked with assembling a new b unk bed in a cell at a county jail and does

so neg lig ently b y failing to read the instructions and not using all provided parts. I f the b ed later collapses and consequently breaks its o ccupant’s leg

, § 845.6 w ould not ex pose the deputy to liability for that injury

. The d eputy mig ht be liable under some other law, but not f or v i o lating § 845.6. Conversely

, if a different deputy on duty w i t n e s sed the accident and took no a c tion despite the prisoner’s complaints of pain to his leg

, t h i s s e cond d eputy w ould likely b e liable; he would not be immune from suit for any additi o n al injury caused by the delay in summoning medical care t o t r e a t the leg

. See, e.g. , Jett v. Penner
, 439 F .3d 1091, 1 099 (9 t h Cir. 2006).

A c laim premised on suicidal i d e ation creates a particu l a rly d ifficult q

uestion a s to what ty

pes of omissions would constitute a failure to summon medical c are. Even if

an officer h ad k

nowledg e that there was a n imminent risk that the prisoner would make an attempt on h is own life, it would be difficult to say that a failure to r e m o ve that prisoner’s bedsheets and shoelaces would fall within this statute’s ambit because it is not n atural to describe the removal of such items

as summoning medical care. Th e failure to remove them mig ht violate some other provision o f California law, b ut the omission is not an obvious violation of § 845.6.

Here, our analy sis is complicated by the fact that Horton’s complaint consists of a sing le conclusory alleg a tion reg arding what omissions purportedly violated § 845.6: “De f endants

. . . k n e w, o r h ad reason to know, that Shane Horton was in need of immediate medical care, sup e rvision a nd safeg uarding and t h at h e was suicidal and at risk of injuring himself, but failed to take r easonable action to summon suchH O R T O N V

. C I T Y O F S A

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medical care

. . . . ” H orton adds little clarity on appeal, merely hig hlig hting the fact that he w as “already slumped on the floor motionless when Officer B rice finished” the call a s evidence tha t h e “was in immediate need of medical attention.” B ut the fact that Horton needed to be resuscitated

once he had a lready hang ed himself say s nothing about what actions Officer B rice should have taken before he returned to Horton’s cell and discovered the suicide attempt. 2 I n other words, Horton’s arg ument is circular; he implies that, because he was in need of medical care once he had hang e d himself,
any omission by Officer B rice constituted a f a ilure to summon medical care.

Ultimately

, it is evident that Horton’s state-law claim, like his § 1 983 claim, is premised on h i s c o n t e ntion that “the information communicated by

. . . H o rton’s mother should have prompted [Officer Brice] to c heck on Horton promptly and d iscover the need for immediate medi c a l care.” A s addressed below, I do not believe Horton has provided any evidence that Officer B rice k new or should have known that H o r t o n was in immediate dang er of h arming himself. Bu t

even assuming that this knowledg e compone n t is satisfied, the majority opinion does not address how Officer B rice’s failure to check on Horton i m m e d iately after the phone c all constitutes a failure to s u m mon m edical care

. The majority has not ex p lained w hy this statute even applies in this case. 3

2 Ho rto n h as n ev er alleg ed —n o r d oes t

h e reco rd sh o w

—th at Of f icer B rice d elay ed in s u m

m o n in g em erg en cy care a fter h e d isco v ered th at Ho r t o n h ad h an g ed h im s elf

. Rath er, Of

f icer B rice p erso n ally ad m in istered CP R u n til p aram ed ics arriv ed

.

3 Sectio n 8 4 5 .6 g ran t s im

m u n ity to an o f

f icer w h o f ails to “ fu rn ish or

o b ta in m ed ical ca r e ” b u t lim its an o f f icer’ s liab ility to a f

ailu re “ to

su mmo n su ch m ed ical care” w h en th e o f

f icer h as actu al o r co n stru ctiv eH O R T O N V

. C I T Y O F S A

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The California Court of Appea l emphasiz ed this precise deficiency in Lucas v. City of L o n g B e a ch

, w here the decedent hang ed himself in his cell after being arrested on a charg e of being

drunk and disorderly :

Plaintiff, [ the decedent’s mother]

. . . , offered

no evidence as t o w h at kind of medical care she claims should have been p rovided a nd

more importantly she o ffered no evidence a s to how such medical c a re could h a ve p r e v ented the death. [ T he decedent] was not in fact in need of immediate medical care a nd clearly lack of medical care did not “ ca u s e” the death.

True the continuous presence in the cell of a doc t o r , a nurse, or, for that matter, a policeman probably would have prevented the suicide

. The jury apparently reasoned along thes e lines. Government Code section 845.6,

k n o w led g e o f its im

m ed iate n eed

. Cal. Go v ’ t Co d e § 8 4 5 .6 (em p h a s i s ad d ed ). T h eref

o re, t h is statu te do es n o t create an af f irm ativ e d u ty

f o r an

o f f icer to perso n ally fu rn ish m ed ical care. Ca sta n ed a , 1 5 1 Cal. Rp tr. 3 d
at 6 6 6 ( “W e r e w e to co n clu d e th e d u ty u n der sectio n 8 4 5 .6 in clu des f u rn ish in g , m on ito rin g , f o llo w u p , o r s u bseq u en t care f

o r th e sam e

co n d itio n , . . . w e w o u ld b e ex p an din g t h e liab ility o f th e p ub l ic en tity b ey o n d t h at co n tem

p lated b y t

h e L eg islatu

re.”). A cco rd in g ly

, if an in m ate acci d e nt l y s ev ers h i s h an d in th e p riso n ’ s m ach in e sh o p , a su perv isin g g u ard w ill u

n do u b ted ly be liab l e u n d e r § 8 4 5 .6 f o r n o t rad i o i n g in f

or im m ed iate m ed ical aid

. T h e g u ard w ou ld

, h o w ev er, b e im m u n e f ro m su i t if th e i n m ate alleg ed o n ly th a t th e g u ard s h o u ld h av e perso n ally ad m i n istered a m ak esh if

t to u rn iq u et. T h i s d istin ctio n d em o n s trates w h y C alif o rn ia co u rts h av e co n clu ded th at th e statu te “ is v ery n arro w ly

w ritten ,” id

. at 6 6 3
, an d f u rth er h ig h lig h ts t

h at Ho rto n ’ s claim i s n o t p rem i sed o n

a f ailu re to su m

m o n care.H O R T O N V

. C I T Y O F S A

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however, in affix ing liability f o r f ailure to

summ o n “ immediate medical care” f or a p e rson in need thereof envisions liability fo r injury resulting f

rom t h e failure to treat the phy sical c ondition r equiring treatment and not for some other incidental in j u r y that might have been p rev e nted by the mere presence of medical p ersonnel

. The jury ’ s finding s that it

was neg lig ence n ot to provide me d i cal
treatment and that that failure was the “cause” of d eath are not supported by any evidence to be found in the record.

131 Cal. Rpt r. 4 70, 475 (Cal. Ct. App. 1976) (emphasis added). Lucas thus demonstrates that, as discussed a bove, not all f orms of omission g ive rise to liability under § 845.6. Although Officer B rice’s presence in Horton’s c ell immediately after the call may have p r e v ented Horton from suffering the deg ree of brain damag e that he did, any failure
to check on Horton sooner falls outside the statute’s narrow

ex c e ption to immunity

.

Rather than confronting this dispositive flaw in Horton’s state-law claim, 4 the maj o r i t y summarily asserts that the claim is “n o t

. . . limited” to “Officer B rice’s own failure to return immediately to Horton’s c e l l

. . . .” Maj. O p. 27. Telling ly

, the majority supports this conclusion by citing only
to H orton’s complaint, which, as seen above, does not a lleg e

4 T h e m aj o rity f

ails to ad d ress th e ab o v e- q u o ted reaso n i n g i n Lu ca s reg ard in g th e m ed ical- care elem en t u n d er § 8 4 5 .6 . In stead , th e m aj o rity

a d d resses Lu ca s o n ly in t h e co n tex t o f th e statu te’ s k n o w l e d g e elem en t—i.e., w

h eth er Of

f icer B rice sh o u ld h av e k n o w n th at Ho rto n p o sed an immed ia te su icid e risk . Maj . Op . 2 7– 2 9

.H O R T O N V

. C I T Y O F S A

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a sing le specific action that Officer B r ice failed to take. See id

. This is unsurprising

. Nothing in Horton’s briefing or the record indicates that his claim, as to Officer B rice, is premised on any

thing other than the officer not immediately checking on him.

Undeterred, the majority supplements Horton’s c laim for him, concluding that Officer B rice c ould h a v e o rdered a psy chiatric evaluation for Hort on—as Officer Schneider
sug g ested earlier that day

. 5 Id

. I have two objections. F irst, Horton has never contended tha t s u c h an evaluation is the ty pe of medical care that Officer B rice should have summoned after th e c a ll with his mother. I t is improper for the majority to deny

Officer B r ice state-law immunity based

on an arg ument that it manufactured. See Greenwood v

. FAA
, 28 F .3d 971, 977 (9th Cir. 1994).

B u t second, e ven if properly before us, this new arg ument does not c ure this claim. The majority ’s assertion that Officer B rice should have o rdered a p sy c hiatric evaluat i o n is a circuitous attempt to arg ue that the o f ficer or third-party medical personnel failed to f urn i s h m edical care and, in the
process , co uld have more q uickly discovered the suicide

a t t empt. California cases have repeatedly rejected su c h claims. See

, e .g ., Lucas
, 131 Cal. Rptr. at 475 ( “[ S] ection 845.6

. . . , in a ffix ing liability for failu re to summon ‘immediate medical c are’ for a person in need thereof envisions liability f

or injury resulting f

rom the failure to treat

5 Offi cer Sch n eid er ref eren ced “ [p ]ro b ab ly do [in g ] a psy ch or

so m eth in g ” to H o rto n af ter th e t w o h ad a h a lf

- an

- h o u r co n v ersatio n

. Of f icer Brice w as n o t at th e p o lice statio n at th e tim e, an d th e reco rd d oes

n o t sh o w t

h at Sch n eid er later co n v ey ed th is su g g e s t i o n o r th e

co n v ersatio n ’ s co n ten t to B rice.H O R T O N V

. C I T Y O F S A

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the phy sical condition requiring trea t m e n t and not for some other incidental injury that mig ht have been prevented by the

mere presence of medical personnel.”); see also Castaneda

, 151 Cal. Rptr. 3d at 663–64 (discussing “[ t] he distinc tion between failure to summon medical care—for which the State

can be held liable under section 845.6—on the one hand, a nd
neg lig ence in providing care—for w hich the State is immune—on the other hand”); id

. at 664 n.10, 666 (repeating the p oint ) ; Nelson

, 188 Cal. Rptr. at 485 (“F ailure of a practitioner to prescribe or pro v ide n ecessary medication o r treatment

. . . is

. . . medical malpractice

. . . [ but] c a n not be characteriz ed as a failure to summon medical care.”).

Moreover, the medical care that the majority insists upon would not have a ddr e ssed Horton’s medical needs—he h ad already hang ed himself by the time that the call ended. There is also no e vidence that ordering a psy chiatric evaluation would have resulted in Officer B rice more q u ickly c hecking

on Horton. Officer B rice could have ordered an evaluation—a paperwork or telephone request—without checking on Horton. I t is likely tha t d oing so would have required the officer to spend additional time on administrative tasks outside of H orton’s presence, only further delay

ing his
return to the cell. Accord ing ly

, H orton has failed to show that any purported omission b y Officer B rice falls within the scope of § 845.6 liability

.

B y d isreg arding the statute’s me d i c al-care element, the majority opinion undermines California’s intent to immuniz e i ts employ ees and to allow suit only when an empl o y e e h a s actual or construct ive knowledg e of an immediate medical need. The opinion has converted § 845.6 into a g ene ra l

n e gl i g ence provision, ig noring “ [t] he limited nature of theH O R T O N V

. C I T Y O F S A

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duty to summon under section 845.6.” Castaneda , 151 Cal. Rptr. 3d at 666.

I I

Even if Horton c ould establish that a ny omission constituted a failure to summon med i c a l care, he has separately failed to provide evidence that Officer B rice knew

or should have k

nown that there was a

n immediate d a

ng er that he would harm himself. I n concluding that H o r t o n has raised a tr i a b le issue, the opinion cites to Zeilman v. County of Kern for the propos ition that “ jail personnel’s actual o r constructive knowledg e of a pris o n e r ’s need f or immediate medical care a s well as the reasonableness of actions taken to meet this need are factual questions

. . . .” 214 Cal. Rptr. 746, 753 ( Cal. Ct. A pp. 1985); Maj. O p

. 30. B u t even Zeilman
recog niz ed that summary judg ment o n § 845.6 claims can be appropriate in some circumstances, 214 Cal. Rptr. at 754, a nd its facts are disting u ishable from this case.

I n Zeilman

, the plaintiff was being booked a t t h e county jail following h er arrest a nd was rely ing on c rutches due to a ski accident. Id

. at 747–48. After the booking p rocess was complete, a deputy directed the plaintiff to sit down a t a nearby c hair, but she fell when h e r crutches slipped o u t from under her. Id. at 7 48–49, 7 54. I n o p p o sing summary judg ment o n her § 845.6 claim, s he presented a declaration from her attorney “stating that he arrived at the jail during the booking procedure and could observe his client being booked, in an ‘ag g itated [ s i c ]
, emotional and weakened condition which w as easily apparent to him and any other person in his vicinity. ’” Id

. a t 748 ( emphasis added). The Court of Appeal reversed the trial c o u r t ’s g rant of summary judg ment, reasoning that a jury

had to determine whether this evidenceH O R T O N V

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and the plaintiff’s use of crutches “should have given rise to k n o w l edg e of her need for immediate medical care.” Id

. at 754.

I n r eaching this conclusion, Zeilman disting u ished th e se facts from Lucas
, the detainee-suicide case discussed above. Id

. at 7 5 3–55. I n Lucas
, the plaintiff not only fa i l ed to establish that the officer’s purported o mission constituted medical care, but she also failed to provide evidence that the officer should have known t h a t there was an immediate suicide risk. L u c a s , 131 Cal. Rptr. at 4 75. I n deed the d ecedent w as merely drunk a nd visibly upset about “t h e effect that his arrest would have o n h i s mother

. . . . ” Id

. (“[ T] here is not a scintilla of e v idence in the record indicating that his conduct was any different than o ne mig ht ex pe c t o f a person intox icated on either drug s or alcohol.”).

The Zeilman court also addressed Kinney v. County of Contra Costa
, where the detainee merely asked the officer if she could be g iven something for “a very bad headache” a nd

was denied. 8 7 Cal. Rptr. 638, 644 (Cal

. C t

. App. 1970). Althoug h the plaintiff claimed she was “ready to collapse” b y the time she was released from the police station, the Court o f Appeal held that a r eq u e st for aspirin “ c annot reasonably be d e e m e d notice ‘that the prisoner is in need of immediate medical care.’” Id

.

I n disting u ishing Lucas and Kinney
, Zeilman emphasiz ed that both earlier cases had proceeded to a jury but that the pl a intiffs had failed to produce sufficient evidence at trial. 6

6 In L uca s , a j u ry ren d ered a v erd ict in th e p lain tif f ’ s f av o r, b u t th e Co u rt o f A

p p eal rev ersed o n a su f

f i cien cy

- o f

- th e- ev id en ce claim

. 1 3 1 Cal. Rp tr. at 47 4

. T h e trial co u rt in Kin n ey issu ed a j u d g m en t o f n on su it at th eH O R T O N V

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214 Cal. Rptr. at 754. The majority in our case hig hlig hts this point without acknowledg ing that the Zeilman court nonetheless concluded that summary judg ment m ig ht have b een proper in both Lucas and Kinney

. Id

. Accord i n gl y , Zeilman d oes not stand f o r t h e proposition that a § 845.6 claim per se precludes summary judg ment. Such relief would have certainly been w arranted in Lucas
, where the p laintiff failed to provide evidence supporting the medical- ca r e a nd knowledg e elements. I n contrast, the plaintiff i n Z e i l m an

came forward w ith at least some evidence that the deputy should have k

n own she was in need of immediate assistance 7 in the form o f her lawy er’s att estation that her weakened condition was visibly

and readily

apparent.

This bring s me to t h e evidence in this case. Horton’s

mo ther testified during her deposition that she told Officer B r i c e “‘every

thing ’ about the December 1 3
, 2012 incident—Horton’s use of drug s, the cig a r e t te marks on his face and hands, the k nife he h e ld to his throat, his hospitaliz ation with an initial ‘5150’ hold for risk of suicide, the CARES o fficial’s conclusion that h e could be discharg ed because his conduct was due to dr u gs n o t suicidal ideation, and [ Mr s

. Horton’s] disag reement with that conclusion.” Maj. Op. 8. She “ testified that she a lso told Officer B rice that her son was depre s s ed and suicidal, that she was really

clo se o f th e plain tif

f ’ s case in ch ief

, w h ich th e Co u rt o f A

p p eal af f irm ed

. 8 7 Cal. Rp tr. at 6 4 4

.

7 I q u estio n w

h eth er f ailin g to h elp th e plain tif

f in Zeilma n to h er ch air

co n stitu tes a f ailu re t o su m m o n m ed ical care. A lth o u g h th e Zeilma n co u rt q u o ted th e relev an t m ed ical- care lan g u ag e f ro m Lu ca s , it d id n o t ad d ress th at elem en t in d i s t i n g u ish in g th e tw o cases, w h ich ap p ears n ot to h av e b een in d isp u te.H O R T O N V

. C I T Y O F S A

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worried about him, and that she believed he could be helped in the judicial sy stem.” I d

.

This testimony admittedly disting uishes our case from Luc a s , w h ere there was n o evidence whatsoever that the detainee suffered from suicidal ideation. B ut even when the evidence here is taken in the lig ht most favorable to Horton, I would hold that n o reasonable jury c ould f i n d that Officer B rice sho u l d h ave known that there w as an immediate risk that H orton would harm himself and that the officer therefore needed to take immediate action. A person can suffer from depress i o n and suicidal thoug h ts for y ears without ever h arming himself. I ndeed, the incident that Horton’s mother described to Officer B rice occurred two weeks prior to the arrest, and she provided no e viden c e t hat Horton had made
any attempts or threats on h i s l i fe in the intervening period. Seeking “help[ ] in t he judicial sy stem” is not close to a c all for immediate assistance for someone who recently e x hibited suicidal ideation.

This is not a case where Horton’s parents had imposed an informal 2 4/7 suicide watch on him. H i s father had kicked him out of the house after the g lass-breaking incident, so it
appears Horton was liv i n g i n d e p e n d e n t l y , w i thout supervision for the two weeks preceding his arrest. Moreover, his mother did not r ush d own to the police station once she heard that her

son h ad b e e n a rrested; rather, she had just told Horton that she would n ot bail him out. H orton’s mother was c ertainly concerned about his well-being

, b ut she never claims to have

ex p ressed to Officer B r ice that Horton would likely make an attempt o n his life if the officer did not take immediate action
to e nsure Horton was u n able to do so—e.g ., by removing his belt, moving him to a sec u r e d

, padded cell, and monitoring him constantly

. I t would ce r t a i n ly have been prudent o fH O R T O N V

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Officer B rice to p ass along the information Horton’s mother claims to h a v e g iven him to the o fficials at the county jail

once Horton was transferred, but that falls far short of failing to recog niz e Horton’s immediate need for medical care.

Moreover, Horton’s mother testified that sh e s p o ke to Officer B rice for ten to fifteen minutes—a substantial amount of time. Had she thoug ht her son was in immediate d ang er o f harming himself, she would have told O fficer B ric e to drop the phone a

nd rush to Horton’s cell. I ndeed, if any thing

, the officer’s patient c a ll with Horton’s mother w ould have

r e i n f o r c e d t h a t H o r t o n n e e d e d a p s y c h i a t r i c evaluation—which was likely obta inable at the county jail rather than at the polic e station where Horton was being temporarily

held.

The majority does n ot address th i s absence of evidence. Nor d oes it attempt to reconcile its conclusion that Officer B rice, for the purpose of the state-law c l a i m, should have known that Horton posed an immediate suicide risk with our holding reg arding his § 1983 claim: “ B ased on these facts,

. . . a reasonable officer would not have known that failing to attend to H orton immediately w ould be unlawful.” Maj. Op. 15.

The majority instead summ a r ily cites J ett for the proposition that the “immediacy s t andard” under § 845.6 is

more “rela x e d ” than under § 1983 deliberate-indifference claims. 8 Maj. Op. 2 9. B u t this conclusion misconstrues Jett

.

8 Ho rto n do es n o t cite Jett. No r d o es h e co n t en d th at a c l a i m p rem i sed o n su ici d a l i d eatio n en tails a lesser sh o w in g o f im m ed iacy of h arm u n der § 8 4 5 .6 th an u n d er th e d elib erate- in d if f eren ce stan d ard

.H O R T O N V

. C I T Y O F S A

N T A M A R

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There, the emerg ency

- r oom doctor instructed the prisonerplaintiff to f

ollow-up w ith a

n orthopedic doctor “early this week” a f t e r h e fractured his thumb. Jett
, 439 F .3d at 1094. The plaintiff saw a prison doctor three day s later, but his hand

was t o o swollen to be p laced in a permanent cast. Id

. Despite reports of pain a n d numerous requests to visit an orthopedist, it took an additional two months for the p laintiff
t o be seen even by another prison doctor. Id

. A f t e r f o u r additional months, the plaint iff finally visited an orthopedic specialist, “who determined [the plaintiff] should be referred
to a hand specialist becaus e the fracture had healed improperly

. ” Id

. at 1095. T he evidence demonstrated that the delay in seeing an orthopedist prevented the fracture from correctly alig ning

. Id . at 1098.

W e reversed the district c ourt’s g rant of summary judg ment on the plaintiff’s deliberate-indiffere n c e claims, concluding that there w as evidence that s e v eral prison officials knew of but ig nored the plaintiff’s n eed to s et his fracture. I

d

. I n reg ard to his § 845.6 claim, we held that there

w a s “a t r iable issue o f fact

. . . a s to whether [ the p lainti f f ] received immediate medical care f or his diag nosed f

ractured thumb because the fracture was not set and placed in a cast.” Id

. at 1 099. W e r easoned that “the n eed for ‘immediate medical care’ can arise more than once in relation to an ongoing serious medical condition” and that this need “arose

as soon as [ the plaintiff’s] swelling subsided and his fracture could be r educed and a cast applied.” Id . (emphasis added).

According ly

, Jett provides no insig ht into how immediate

a medical need must be u n d e r § 845.6. The plaintiff’s

A g ain

, it is im

p ro p er f o r th e m aj o rity to raise arg u m en ts th at Ho rto n h as f ailed to ad v an ce.H O R T O N V

. C I T Y O F S A

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medical condition was o ng oing a nd his need f

o r c a r e resurfaced as soon as his reduced swelling made the orig inal prescribed treatment p o ssible. 9 Thus, the key p oint in J ett reg arding both § 845.6 and d eliberate indifference is t h at there w as evidence that prison officials had actual knowledg e that the p laintiff had a time-sensitive medical need and took

no action for many months. The case does not support the majority ’s conclusion.

I n my vi ew, Horton’s claim fails because h e has not provided evidence that Officer B rice should have known that Horton posed such a deg ree o f suicide risk that the officer

s h o u ld have immediately r ushed to his cell instead of spending twelve to seventeen minutes arrang ing to transfer Horton and another detainee to county jail.

I I I

I sy mpathiz e deeply with H orton and his mother, but there is no basis under California law for subjecting Officer B rice

9 T h e Calif

o rn ia Co u rt o f A

pp eal h as criticized o u r co n clu s io n i n Jett
, reaso ni n g t h at th e d u ty to su m m o n m ed ical care d o es n o t ex ten d to

en su rin g th at p ro p e r f

o llo w

- u p treatm en t—i.e., settin g th e f ractu re—is

ev en tu ally p ro v i d ed

. C

a sta ned a , 1 5 1 Cal. Rp tr. 3 d at 6 6 6 (“ [T ]h e Nin th Circu it’ s ap plicatio n o f s ectio n 8 4 5 .6 ig no r e s Calif o rn ia au t h o rity in terp retin g t

h at statu t e

. C alif

o rn ia co u rts h o ld th e f

ailu re to p rescrib e

n ecessary m ed icatio n o r, o n ce su m m o n ed to p ro v id e treatm en t, to en su re p ro p er d iag n o sis, o r to m o n ito r th e p ro g ress o f an in m ate th at th e p u

b l ic

em p l o y ee h as b een su

m m o n ed to assist, are issu es relatin g to th e m an n er in w h ich m ed i cal care is pro vid ed

, an d d o n ot s u

bj ect th e State to l iab ility

u n d er sectio n 8 4 5 .6 f

o r f ailu re to su mmo n .”). T h e m aj o rity o p in io n creates ad d itio n al ten s io n betw een J e t t a n d Ca sta n ed

a b ecau se Jett is in ap p o site an d sh o u ld n o t h av e b een cited

. S ee S ca lia v. Co un ty of Kern
, 3 0 8 F. Su p p. 3 d 1 0 6 4
, 1 0 8 7 (E.D. Cal. 2 0 1 8 ) (d eclin in g to f o llo w Jett ’ s in terp retatio n

o f § 8 4 5 .6 in lig h t o f Ca s ten a d a ).H O R T O N V

. C I T Y O F S A

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to suit. Considered in the lig ht most favorable to Horton, the
events earlier that day and the p hone call with his mother did
not imbue Officer Brice with the a ctual or constructive knowledg e that Horton would attempt suicide at any moment. A n d althoug h it may have been prudent for Officer B ri c e t o immediately c heck on H orton, his decision not to d o so is not

a failure to summon medical care. F or these two independent
reasons, I would reverse the district court’s denial o f
summary judg ment to Officer B rice on Horton’s § 845.6 claim.

I respectfully

dissent as to this claim.