FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LECIA L. SHORTER,

Plaintiff-Appellant,

v.

LEROY D. BACA; GLORIA MOLINA;

MARK RIDLEY-THOMAS; DON KNABE;

MICHAEL D. ANTONOVICH; AVALOS, 

Deputy Sheriff; ORTIZ, Deputy 

Sheriff; County of Los Angeles; 

DOES, 1 through 10 inclusive; ZEV 

YAROSLAVSKY,

Defendants-Appellees.

No. 16-56051

D.C. No.

2:12-cv-07337-

JCG

OPINION

Appeal from the United States District Court

for the Central District of California

Jay Gandhi, Magistrate Judge, Presiding

Argued and Submitted December 8, 2017

Pasadena, California

Filed July 16, 2018
2 SHORTER V. BACA

Before: Kim McLane Wardlaw and Ronald M. Gould, 

Circuit Judges, and Yvonne Gonzalez Rogers,*

District Judge.

Opinion by Judge Wardlaw

SUMMARY**

Prisoner Civil Rights

The panel vacated a partial grant of summary judgment, 

reversed the denial of a new trial, and remanded for further 

proceedings in a 42 U.S.C. § 1983 action brought by a 

pretrial detainee who alleged inadequate medical care, 

unconstitutional conditions of confinement, and humiliating 

and invasive strip searches.

The panel first noted that plaintiff presented 

uncontroverted evidence at trial that the County of Los 

Angeles, tasked with supervising high-observation housing 

for mentally ill women, has a policy of shackling the women 

to steel tables in the middle of an indoor recreation room as 

their sole form of recreation, and that jail officials routinely 

left noncompliant detainees naked and chained to their cell 

doors, for hours at a time without access to food, water, or a 

toilet. 

 * The Honorable Yvonne Gonzalez Rogers, United States District 

Judge for the Northern District of California, sitting by designation.

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

has been prepared by court staff for the convenience of the reader.
SHORTER V. BACA 3

The panel held that given the evidence, the district court 

erred by instructing the jury to give deference to jail officials 

in deciding plaintiff’s conditions of confinement and 

excessive search claims. The panel noted that the only 

justification that the County offered at trial for severely 

restricting plaintiff’s conditions of confinement was a 

concern about overcrowding and understaffing in the 

facility. The panel held that if plaintiffs in § 1983 actions 

demonstrate that their conditions of confinement have been 

restricted solely because of overcrowding or understaffing, 

a deference instruction ordinarily should not be given. 

Rather, a deference instruction may be given only when 

there is evidence that the treatment to which the plaintiff 

objects was provided pursuant to a security-based policy. 

Similarly, if plaintiffs demonstrate that they have been 

subjected to search procedures that are an unnecessary, 

unjustified, or an exaggerated response to concerns about jail 

safety, deference to jail officials is unwarranted. 

 

Addressing plaintiff’s misclassification claim, the panel 

held that the magistrate judge abused his discretion by 

denying plaintiff’s motion for a new trial on her claim that 

she was placed in a more restrictive unit without sufficient 

due process. 

Finally, the panel vacated the district court’s summary 

judgment as to plaintiff’s inadequate medical care claim, and 

remanded for further proceedings in light of the recent 

opinion in Gordon v. County of Orange, 888 F.3d 1118 (9th 

Cir. 2018). The panel noted that without the benefit of 

Gordon, the district court erroneously evaluated plaintiff’s

inadequate medical care claim under the Eighth 

Amendment’s subjective deliberate indifference standard 

rather than the appropriate objective standard.
4 SHORTER V. BACA

COUNSEL

William F. Abrams (argued) and David H. Kwasniewski,

Steptoe & Johnson LLP, San Francisco, California, for 

Plaintiff-Appellant.

Rina M. Mathevosian (argued) and Henry Patrick Nelson,

Nelson & Fulton, Los Angeles, California, for DefendantsAppellees.

OPINION

WARDLAW, Circuit Judge:

Lecia L. Shorter appeals the district court’s partial grant 

of summary judgment in favor of the County of Los Angeles, 

Leroy Baca, Jacqueline Ortiz, and Alejandra Avalos (the 

County or County Defendants) on her 42 U.S.C. § 1983 

inadequate medical care claim, and the denial of Shorter’s 

motion for a new trial on her § 1983 claim based on her 

classification as mentally ill, her conditions of confinement, 

and the strip searches to which she was subjected as a pretrial 

detainee at the Century Regional Detention Facility (CRDF) 

in Lynwood, California.

At trial, Shorter presented uncontroverted evidence that 

the County, tasked with supervising high-observation 

housing for mentally ill women, has a policy of shackling the 

women to steel tables in the middle of an indoor recreation 

room as their sole form of recreation, and that jail officials 

routinely leave noncompliant detainees naked and chained 

to their cell doors, for hours at a time without access to food, 

water, or a toilet. Shorter also presented the jail’s daily logs 

during her pretrial detention, which show that Shorter was 

deprived of meals, showers, and recreation due, in part, to 
SHORTER V. BACA 5

overcrowding and understaffing at CRDF. Shorter 

challenges the instructions given to the jury, which directed 

it to defer to the jail officials who enacted and carried out 

these policies and practices.

We have jurisdiction under 28 U.S.C. § 1291, and we 

vacate the partial grant of summary judgment, reverse the 

denial of a new trial, and remand for further proceedings.1

I.

Shorter was a pretrial detainee at the County’s CRDF, an 

all-women’s jail in Lynwood, California, from November 

15, 2011, to December 17, 2011. On the day she arrived at 

the jail, a social worker diagnosed Shorter with an 

unspecified mood disorder and placed Shorter in Module 

2300, the jail’s high-observation housing (HOH) unit for 

women who are mentally ill. HOH inmates wear yellow 

shirts and blue pants, and are subject to more restrictive 

conditions than inmates in other parts of CRDF. HOH 

inmates, for example, live in single-person cells and are 

monitored by jail staff every fifteen minutes to prevent 

suicide and other harmful behavior. HOH inmates are 

handcuffed whenever they leave their cells, with the 

exception of taking showers. In 2014, the U.S. Department 

of Justice (DOJ) commenced an investigation into the 

County jails’ treatment of mentally ill inmates, and 

determined that the excessive use of shackles on the female 

inmates in HOH units was counterproductive to women’s 

 1 Shorter’s motion to file supplemental excerpts of record (ECF No. 

17) is GRANTED. Baca et al.’s motion to strike Shorter’s excerpts and 

opening brief (ECF No. 20) is DENIED.
6 SHORTER V. BACA

physical and mental health, and led to violations of the 

detainees’ constitutional rights.

After her release from CRDF, Shorter filed this 

42 U.S.C. § 1983 action, pro se and in forma pauperis.2 She

challenges several conditions of her confinement in HOH 

and the procedures that the County used to classify her as 

mentally ill.

Shorter contends that the County’s policy unreasonably 

allowed social workers to rely on a fifteen-question 

screening test, a cursory review of the inmate’s record, and 

a brief interview, to make a practically unreviewable 

determination about how inmates are housed at CRDF. 

Shorter tried to appeal her mental health classification when 

she arrived at HOH, but jail officials did not provide her with 

the grievance forms that she could use to appeal her 

classification.

Shorter also claims that she was routinely denied 

recreation, meals, and showers as a pretrial detainee because 

of understaffing and overcrowding at CRDF. For recreation, 

deputies move the women to an indoor day room, where they 

leave the women with one arm restrained by a handcuff 

extended from a chain secured to the floor. The women sit 

individually at indoor steel tables and benches. Some watch 

television and others participate in group activities. Jail 

policy requires the women to remain handcuffed to the chain 

next to the table at all times, and HOH detainees do not have 

access to a gym or an outdoor recreation area. Shorter 

 2 Shorter retained Steptoe & Johnson LLP as pro bono counsel 

through the Central District of California’s Pro Bono Civil Rights Panel 

on October 6, 2014, after she successfully argued a number of discovery 

motions on her own behalf.
SHORTER V. BACA 7

participated in two and half hours of this type of recreation 

during her thirty-two days in the jail. The jail’s daily logs 

also show that on seven days of her confinement Shorter 

received less than three meals per day. And the same logs 

show that Shorter showered only three times, going six, 

seven, or eight days during her confinement without a 

shower, and instead relying on feminine pads for personal 

sanitation.

Shorter also challenges the jail’s visual body cavity 

search policy, which all inmates are subjected to upon return 

from trips to court, and the jail’s pervasive practice of 

leaving noncompliant detainees shackled to their cell doors. 

The search process begins with the detainee inside her cell, 

with both hands in handcuffs. The detainee then places her 

hands outside the chute of her cell, where the deputy, on the 

other side of the door, unlocks one of the handcuffs. Then, 

with one hand still handcuffed and attached to a chain 

outside of the door, the detainee removes her pants, socks, 

and shoes, as well as her shirt and bra, which remain attached 

to the chain extending from her handcuff. The detainee must 

then lift her breasts, lower her underwear, bend over, open 

her vagina and rectum, and cough. The County’s official 

policy mandates that inmates shall not be required to 

“remain in any search position for more time than is 

reasonable and necessary to complete the search.”

In practice, however, where the detainee failed to comply 

with the search procedures, it was common for deputies to 

leave the detainee chained to her cell door for hours at a time. 

Deputies Avalos and Ortiz testified that they were trained to 

leave noncompliant detainees who did not follow search 

procedures chained to their cell doors. Shorter testified that, 

on three occasions, deputies Avalos and Ortiz left her 

chained to her cell door for three to six hours, without access 
8 SHORTER V. BACA

to food, water, or clothing. On one occasion, the deputies 

did not leave enough slack on Shorter’s chain to allow her to 

reach the bathroom in her cell. Shorter testified that there 

was only enough slack on the chain to allow her to sit on the 

floor and hold her hand up in the air. Each time the deputies 

chained Shorter to her cell door, Shorter freed herself by 

manipulating her hand out of the restraints or by convincing 

another deputy to release the restraints. Shorter said that 

these incidents made her feel like “an animal on display.”3

Lastly, Shorter maintains that the County provided her 

with inadequate medical care. Shorter has a blood condition 

that requires her to monitor her blood’s thickness daily, and 

to take Coumadin, a prescription drug that prevents the blood

from thickening too much. Left untreated, the condition may 

cause blood clots, heart attack, stroke, or death. Jail officials 

tested Shorter’s blood once during her thirty-two day stay. 

At the time of the test, officials determined that Shorter’s 

blood was “dangerously thin,” and they discontinued 

Shorter’s Coumadin prescription. Shorter was not tested 

again until after she left CRDF; at the time, doctors deemed 

her blood “dangerously thick.” Because jail officials did not 

routinely monitor her blood, Shorter worried that she was 

vulnerable to health risks throughout her pretrial detention.

 3 The jail did not develop an official policy for dealing with 

“uncooperative” inmates until 2012, and some testimony suggests that 

the jail no longer permits deputies to chain noncompliant inmates to their 

cell doors. The jail’s “Recalcitrant Inmate Policy” now instructs 

deputies to isolate the inmate, provide access to a toilet, and to notify a 

watch commander, who would document the incident, if the inmate fails 

to comply with procedures after an hour. The jail has also started using 

a body scanner that renders the visual cavity search procedures 

unnecessary.
SHORTER V. BACA 9

The County Defendants moved for summary judgment 

on all of Shorter’s claims. They argued that Shorter could 

not establish policies, customs, or practices sufficient to 

establish a claim against the County or Sheriff Baca, in his 

official capacity, under Monell v. Department of Social 

Services, 436 U.S. 658, 691 (1978). They further maintained 

that Shorter’s evidence did not raise a genuine dispute of fact 

that the County Defendants had violated Shorter’s 

constitutional rights. Specifically, they argued that Shorter’s 

conditions of confinement claims failed because there was 

no evidence that Shorter was deprived of recreation, food, or 

sanitation; that her inadequate medical care claim failed 

because Shorter could not show deliberate indifference to 

her medical needs; and that Shorter’s excessive search claim 

failed because Shorter could not show that County officials 

used more than de minimis force. County Defendants also 

argued that Shorter had no constitutional right regarding her 

classification as “mentally ill” or any right to file a jailhouse 

grievance. Deputies Avalos and Ortiz moved for summary 

judgment on the ground of qualified immunity.

The district court granted partial summary judgment in 

favor of the County on Shorter’s inadequate medical care 

claim, but it denied summary judgment on the remainder of 

the claims. The district court, construing the evidence in the 

light most favorable to Shorter, concluded that the deputies 

were not entitled to qualified immunity because their search 

practices violated law that was clearly established as of 

2011—a decision that the deputies do not challenge here.
10 SHORTER V. BACA

The case then proceeded to a jury trial before a 

magistrate judge. The magistrate judge, relying on Ninth 

Circuit Model Civil Jury Instructions, instructed the jury to 

“give deference to jail officials” in deciding Shorter’s 

conditions of confinement and excessive search claims. The 

jury returned a verdict in favor of all defendants. Shorter 

then moved for a new trial, but the magistrate judge denied 

her motion. Shorter timely appeals.

II.

The principal dispute on appeal is whether the magistrate 

judge erred by instructing the jury:

In determining whether the defendant(s) 

violated the plaintiff’s rights as alleged, you 

should give deference to jail officials in the 

adoption and execution of policies and 

practices that in their judgment are needed to 

preserve discipline and to maintain internal 

security.

We have come to refer to this instruction as the Norwood 

instruction, after our decision in Norwood v. Vance, 591 F.3d 

1062 (9th Cir. 2010). The instruction is part of the Ninth 

Circuit model instructions for “Convicted Prisoner’s Claim 

of Excessive Force,” Ninth Cir. Model Civ. Jury Instr. § 9.26 

(2017 ed.), and for “Convicted Prisoner’s Claim re 

Conditions of Confinement/Medical Care,” Ninth Cir. 

Model Civ. Jury Instr. § 9.27 (2017 ed.).4 Because Shorter 

 4 Although claims by pretrial detainees arise under the Fourteenth 

Amendment and claims by convicted prisoners arise under the Eighth 

Amendment, our cases do not distinguish among pretrial and postconviction detainees for purposes of the excessive force, conditions of 
SHORTER V. BACA 11

challenges the resulting jury instruction as an incorrect 

statement of law, our review is de novo. See Clem v. Lomeli, 

566 F.3d 1177, 1180–81 (9th Cir. 2009); see also United 

States v. Warren, 984 F.2d 325, 327 n.3 (9th Cir. 1993) 

(“Use of a model jury instruction does not preclude a finding 

of error.”).

Defendants argue that Shorter failed to preserve her 

objection below, so our review should be for plain error. See 

Fed. R. Civ. P. 51(d)(2). But the record shows that Shorter 

objected to the deference instruction at trial, albeit on a 

different ground, and in a motion for new trial. An 

“objection need not be formal,” and Shorter’s objection was 

“sufficiently specific to bring into focus the precise nature of 

the alleged error.” Inv. Serv. Co. v. Allied Equities Corp., 

519 F.2d 508, 510 (9th Cir. 1975); see also Chess v. Dovey, 

790 F.3d 961, 970 (9th Cir. 2015) (describing the “pointless 

formality” exception to the objection requirement). As the 

magistrate judge recounted in his denial of Shorter’s motion 

for a new trial, all parties were aware that the 

appropriateness of the jury instruction turned on whether the 

jail’s recreation and extended search policies were necessary 

to preserve discipline and maintain internal security.

Shorter’s constitutional claims “arise[] from the due 

process clause of the fourteenth amendment and not from the 

eighth amendment prohibition against cruel and unusual 

punishment.” Jones v. Johnson, 781 F.2d 769, 771 (9th Cir. 

1986) (citing Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979)), 

 confinement, and medical care deference instructions. See Bull v. City 

& Cty. of San Francisco, 595 F.3d 964, 975 (9th Cir. 2015). The 

Norwood instruction is also part of the model instructions for “Convicted 

Prisoner’s Claim of Failure to Protect,” Ninth Cir. Model Civ. Jury Instr. 

§ 9.28.
12 SHORTER V. BACA

overruled on other grounds by Peralta v. Dillard, 744 F.3d 

1076 (9th Cir. 2014) (en banc); see also Gary H. v. 

Hegstrom, 831 F.2d 1430, 1432 (9th Cir. 1987) (“[T]he more 

protective fourteenth amendment standard applies to 

conditions of confinement when detainees . . . have not been 

convicted [of a crime.]”). While officials “should be 

accorded wide-ranging deference in the adoption and 

execution of policies and practices that in their judgment are 

needed to preserve internal order and discipline and to 

maintain institutional security,” Bell, 441 U.S. at 547, that 

deference must be set aside where “the record contains 

substantial evidence showing their policies are an 

unnecessary or unjustified response to problems of jail 

security,” Florence v. Bd. of Chosen Freeholders, 566 U.S. 

318, 323 (2012). “[I]n the absence of substantial evidence 

in the record to indicate that the officials have exaggerated 

their response to these considerations courts should 

ordinarily defer to their expert judgment in such matters.” 

Block v. Rutherford, 468 U.S. 576, 584–85 (1984) (citation 

omitted).

However, our precedent should not be misread to suggest 

that jail officials are automatically entitled to deference 

instructions in conditions of confinement or excessive force 

cases brought by prisoners, or § 1983 actions brought by 

former inmates. Cf. Norwood, 591 F.3d at 1067; Chess, 

790 F.3d at 972–73; see also Mendiola-Martinez v. Arpaio, 

836 F.3d 1239, 1254 (9th Cir. 2016) (citing to Norwood and 

Chess for the rule that “in excessive force and conditions of 

confinement cases, we instruct juries to defer to prison 

officials’ judgments in adopting and executing policies 

needed to preserve discipline and maintain security”). We 

have long recognized that a jury need not defer to prison 

officials where the plaintiff produces substantial evidence 

showing that the jail’s policy or practice is an unnecessary, 
SHORTER V. BACA 13

unjustified, or exaggerated response to the need for prison 

security.5 See, e.g., Florence, 566 U.S. at 322–23; Brown v. 

Plata, 563 U.S. 493, 511 (2011); Whitley v. Albers, 475 U.S. 

312, 322 (1986) (stating that deference to prison officials 

“does not insulate from review actions taken in bad faith and 

for no legitimate purpose”); Spain v. Procunier, 600 F.2d 

189, 194 (9th Cir. 1979) (“Mechanical deference to the 

findings of state prison officials in the context of the eighth 

amendment would reduce that provision to a nullity in 

precisely the context where it is most necessary.”). “[I]f a 

restriction or condition is not reasonably related to a 

legitimate goal—if it is arbitrary and purposeless—a court 

permissibly may infer that the purpose of the governmental 

action is punishment that may not be constitutionally 

inflicted upon detainees qua detainees.” Bell, 441 U.S. at 

539.

As currently written, our circuit’s model jury 

instructions for conditions of confinement and excessive 

force cases, which include a deference to jail officials 

instruction, are inconsistent with the model jury instructions 

for similar cases in the majority of other circuits with 

published pattern instructions, which generally do not 

include an additional deference instruction. See, e.g., Third 

Cir. Model Civ. Jury Instr. §§ 4.10, 4.11 (2018 ed.); Eighth 

Cir. Manual of Model Civ. Jury Instrs. § 4.41 (2017 ed.); 

Eleventh Cir. Pattern Civ. Jury Instr. § 5.4 (2018 rev.). In 

Chess, we noted that our model jury instructions are “unique 

in including the deference language in Eighth Amendment 

 5 In fact, we have recognized that, when conditions are dire, more 

judicial supervision, not less, may be warranted. See Brown v. Plata, 

563 U.S. 493, 500 (2011) (describing procedures for appointing a threejudge panel that has the authority to order prisoners released under 

18 U.S.C. § 3626(a)).
14 SHORTER V. BACA

conditions of confinement cases.” 790 F.3d at 972 n.1; see 

also 5 John S. Siffert, Modern Federal Jury Instructions–

Civil ¶ 87.74D (Matthew Bender 2018) (describing jury 

instructions for all circuits). And we pointed out that, except 

for language in a Fifth Circuit model instruction, see Fifth 

Cir. Model Civ. Jury Instr. § 10.7 (2014 ed.), and a model 

instruction proposed by a district judge on the First Circuit, 

“the deference language does not appear in any other 

circuit’s model instructions for prisoner rights’ claims.” 

Chess, 790 F.3d at 972 n.1. The Seventh Circuit’s model 

instructions split the difference by omitting a deference 

instruction for conditions of confinement claims but 

including the instruction over the objection of “a significant 

minority of [the model jury instruction committee’s] 

members” for excessive force claims. Seventh Cir. Model 

Jury Instr. §§ 7.15, 7.18 & comm.(f) (2017 ed.).

We take this opportunity to clarify our precedent and 

align it with the practices of other circuit courts of appeal. 

We first must decide whether the magistrate judge erred in 

giving the deference instruction for Shorter’s conditions of 

confinement claims, where the only justification that jail 

officials offered for curtailing Shorter’s meals, showers, and 

recreation was a concern about overcrowding and 

understaffing in the facility. We conclude that the deference 

instruction should ordinarily not be given in such 

circumstances. Rather, we reiterate that the instruction may 

be given only when there is evidence that the treatment to 

which the plaintiff objects was provided pursuant to a 

security-based policy. See Chess, 790 F.3d at 964. That was 

not the case here, and the magistrate judge should not have 

given the deference instruction as to those claims.

We next decide whether the magistrate judge erred in 

giving the deference instruction for Shorter’s excessive 
SHORTER V. BACA 15

search claim, where jail officials concede that there was no 

legitimate penological purpose for shackling mentally ill, 

virtually unclothed, female pretrial detainees to their cell 

doors for hours at a time. We conclude that substantial 

record evidence supports Shorter’s argument that this search 

practice was an unnecessary, unjustified, and exaggerated 

response to jail officials’ need for prison security. We 

conclude that the magistrate judge erred in instructing the 

jury to give deference to the jail officials on this claim.

A.

Shorter presented substantial evidence at trial showing 

that the jail’s practice of chaining female inmates to a table 

in the middle of an indoor recreation room and depriving 

inmates of food and sanitation was an unnecessary and 

unjustified response to the problem of jail security. Among 

Shorter’s most compelling evidence was a letter from both 

the Chief of the Special Litigation Section of the Civil Rights 

Division of the DOJ and the U.S. Attorney for the Central 

District of California, André Birotte, Jr.,6 to the Los Angeles 

County Counsel, dated June 4, 2014. This letter expressed 

the DOJ’s conclusion that the County’s mental health care 

practices for the county jails violated pretrial detainees’ 

Fourteenth Amendment rights. The letter condemned the 

County’s practice of chaining detainees for recreation and 

concluded that “[t]his approach to prisoner management 

may be a reflection of the low level of security staffing 

throughout the women’s housing units rather than a 

necessary safety-structural requirement for delivering 

appropriate assessment and treatment services.” The DOJ 

encouraged the jail officials to make determinations about 

 6 André Birotte, Jr. now serves as a United States District Judge for 

the Central District of California.
16 SHORTER V. BACA

the appropriate level of restraint on “an individualized basis 

in accordance with the prisoners’ specific mental health and 

safety needs.”

The County admitted in testimony at trial that its policy 

denies HOH inmates access to physical exercise or any 

outdoor recreation, but it argues, on appeal, that its 

restrictive recreation policy is necessary because HOH 

inmates are “unpredictable,” “violent,” and “impulsive.” 

The County did not offer any other reason or immediate need 

to so restrict the inmates’ movement. The County also 

suggested that Shorter did not participate in recreation 

because she did not want to, but the County never explained 

why it needed to chain detainees at all times outside their 

cells, and particularly, during recreation. The only 

explanation offered came from deputy Ortiz, who testified 

that she, personally, would not permit detainees out of their 

cells if the facility was understaffed because she worried that 

recreation time or showers might escalate into violence, 

suggesting that the reason for the policy is not a legitimate 

penological one, but one based on overcrowding and 

understaffing.

A deference instruction was not warranted on these facts. 

Jail officials have a duty to ensure that detainees are 

provided adequate shelter, food, clothing, sanitation, 

medical care, and personal safety. Johnson v. Lewis, 

217 F.3d 726, 731 (9th Cir. 2000). And, we have confirmed, 

time and time again, that the Constitution requires jail 

officials to provide outdoor recreation opportunities, or 

otherwise meaningful recreation, to prison inmates. In 

Pierce v. County of Orange, for example, we concluded that 

inmates in administrative segregation, placed in segregation 

because of “violent tendencies that have been deemed a 

threat to the jail’s staff or to other inmates,” are nonetheless 
SHORTER V. BACA 17

constitutionally entitled to at least two hours per week of 

exercise. 526 F.3d 1190, 1208 (9th Cir. 2008). Even earlier,

in Spain v. Procunier, we concluded that violent inmates in 

administrative segregation have a “right of outdoor exercise 

one hour per day, five days a week unless inclement weather, 

unusual circumstances, or disciplinary needs made that 

impossible.” 600 F.2d at 199. At the time, we opined that 

there is “substantial agreement among the cases in this area 

that some form of regular outdoor exercise is extremely 

important to the psychological and physical well being of the 

inmates.” Id. (collecting cases); see also Thomas v. Ponder, 

611 F.3d 1144, 1152 (9th Cir. 2010) (opining that “case law 

uniformly stresses the vital importance of exercise for 

prisoners”); Allen v. Sakai, 48 F.3d 1082, 1088 (9th Cir. 

1994), as amended (Nov. 1994); Toussaint v. Yockey, 

722 F.2d 1490, 1492–93 (9th Cir. 1984).

Although we have acknowledged that “logistical 

problems,” such as inadequate staffing and limited 

recreational facilities, may make it difficult for jail officials 

to provide adequate exercise to detainees, we have never 

condoned the wholesale, routine deprivation of meals and 

showers, or meaningful recreation activities, like those 

Shorter described, and the County confirmed, at trial. See 

Allen, 48 F.3d at 1088. “Logistical problems,” without 

more, cannot justify serious civil rights violations such as 

“the deprivation of a basic human need.” Id. at 1087. In 

Allen v. Sakai, for example, we recognized “that the practical 

difficulties that arise in administering a prison facility from 

time to time might justify an occasional and brief deprivation 

of an inmate’s opportunity to exercise outside,” but we did 

not accept the defendants’ “excuse” that “scheduling an 

inmate’s time in the exercise yard was difficult because, for 

security reasons, inmates had to be accompanied to the 

recreation yard by a guard and only one inmate could use the 
18 SHORTER V. BACA

recreation yard at a time.” Id. at 1088. And, in Spain, we 

concluded that “[t]he cost or inconvenience of providing 

adequate facilities is not a defense” to the imposition of 

punishment in violation of the Fourteenth Amendment. 600 

F.2d at 200.

Norwood, where a deference instruction was warranted, 

is readily distinguishable. There, officials at a maximum 

security prison decided to “lockdown” the facility four times 

over a two-year period to respond to inmate-on-inmate 

violence and a series of particularly violent attacks against 

correctional officers. Norwood, 591 F.3d at 1065. The 

lockdown meant that there was no outdoor recreation for 

inmates. Id. at 1065–66. Each time officials locked down 

the prison, however, the deprivation of recreation was timelimited, lasting from two to four and half months, and in 

response to specific incidents of threats, attempted batteries, 

and attempted murders of inmates and staff. Id.

Unlike the prison officials in Norwood, who enacted the 

policy due to an unusual and highly volatile set of securityrelated concerns, id., the County offers no specific reason for 

its shackling recreation policy or its practice of curtailing 

meals and showers when the facility is understaffed. Nor 

does the County explain why it could not make the shackling 

determination on an individualized basis, as suggested by the 

DOJ in its 2014 letter, or why it believed that such 

restrictions were necessary at all times to protect inmate and 

officer safety. Cf. Doe v. Kelly, 878 F.3d 710, 720 (9th Cir. 

2017) (instructing jail officials to tailor conditions to 

particular features of a detention facility and the length of 

detention). The policy was not adopted in response to an 

emergency or a dangerous situation that required jail 

officials to use their expertise to prevent further violence. 

And, the County cannot justify its recreation policy by a 
SHORTER V. BACA 19

general statement that mentally ill detainees are 

“unpredictable” or “violent” and “impulsive,” because many 

inmates, including those housed in administrative 

segregation as in Pierce and Spain, display antisocial 

behaviors and yet, we have concluded that all inmates are 

entitled to an individualized evaluation and recreation, 

barring inclement weather, unusual circumstances, or severe 

and imminent security risks. See Spain, 600 F.2d at 199.

The only justification that the County offered at trial for 

severely restricting Shorter’s conditions of confinement was 

a concern about overcrowding and understaffing in the 

facility. We conclude that the deference instruction should 

ordinarily not be given when that is the County’s sole 

justification. The magistrate judge therefore erred in 

instructing the jury to defer to jail officials in deciding 

Shorter’s conditions of confinement claims.

B.

Shorter also presented substantial evidence that showed 

that the jail’s practice of chaining noncompliant detainees to 

their cell doors was an exaggerated response to jail officials’ 

need for security and was not entitled to deference.

The Supreme Court most recently addressed the practice 

of strip searches at jails in Florence v. Board of Chosen 

Freeholders, 566 U.S. 318 (2012). Florence instructed 

courts to “defer to the judgment of correctional officials” 

when the officials conduct “strip searches” of detainees 

admitted to the general population of a jail facility. Id. at 

322–23. At the Essex County jail, the facility in Florence, 

officials required all arriving detainees to pass through a 

metal detector and to wait in a group holding cell for a more 

thorough search. Id. at 324. When they left the holding cell, 

the detainee was instructed to remove his clothing while an 
20 SHORTER V. BACA

officer looked for body markings, wounds, and contraband. 

Id. The facility required the detainee to lift his genitals, turn 

around, and cough in a squatting position as part of the 

process. Id. After a mandatory shower, during which the 

detainee’s clothing was inspected, officials admitted the 

detainee to the general population of the facility. Id. This 

search policy applied “regardless of the circumstances of the 

arrest, the suspected offense, or the detainee’s behavior, 

demeanor, or criminal history.” Id.

In concluding that jail officials were entitled to deference 

when they conducted such searches, the Court detailed the 

many reasons justifying the search. Id. at 330–34. It 

explained that it “may be difficult to identify and treat” 

contagious infections, wounds, or other injuries requiring 

immediate detention until detainees remove their clothes for 

a visual inspection. Id. at 330–31. The Court further 

reasoned that a visual inspection may be necessary to 

identify and isolate gang members, who often have tattoos 

and other signs of gang affiliation on their bodies. Id. at 

331–32. And it acknowledged that jails need to detect 

contraband concealed by new detainees, pointing to briefs 

showing that officers had confronted arrestees concealing 

weapons, drugs, and other unauthorized items. Id. at 332. 

The Court opined that conducting an effective search may 

require a correctional official to require some detainees to 

lift their genitals and cough. Id. at 334. But the Court did 

not announce a general rule that applied to all searches. Two 

of the five Justices in the majority wrote separately to 

confirm that, while deference was appropriate on the facts in 

Florence, deference may not be appropriate for all searches. 

Id. at 340 (Roberts, C.J., concurring) (“The Court is [] wise 

to leave open the possibility of exceptions, to ensure that we 

‘not embarrass the future.’” (quoting Nw. Airlines, Inc. v. 

Minnesota, 322 U.S. 292, 300 (1944))); id. at 341 (Alito, J., 
SHORTER V. BACA 21

concurring) (“It is important to note, however, that the Court 

does not hold that it is always reasonable to conduct a full 

strip search of an arrestee whose detention has not been 

reviewed by a judicial officer and who could be held in 

available facilities apart from the general population.”).

Shorter challenges a search procedure that starts off in 

much the same way as the searches in Florence, but ends in 

a remarkably more punitive fashion for inmates who, from a 

deputy’s perspective, do not comply with the procedures. 

The searches that Shorter challenges are distinguishable 

from Florence, both in their nature and in the lack of 

justification for the procedure. At the time that Shorter was 

detained, officials routinely left noncompliant female 

inmates shackled to their cell doors for hours, virtually 

unclothed, and without access to meals, water, or a toilet. 

These additional procedures distinguish what routinely 

occurred in the HOH units from what happened in the jails 

in Florence. When left shackled, the female inmates were 

visible to both the male and female guards on patrol. 

Moreover, unlike the search procedures in Florence, which 

occurred when detainees were admitted to the jail’s general 

population from smaller group holding cells, the search here 

occurs any time the detainee returns from court, where the 

detainee has been shackled and monitored by prison guards 

at all times.

The search procedures here are a humiliating and 

extreme invasion of Shorter’s privacy that must be justified 

by legitimate penological purposes. See, e.g., Way v. Cty. of 

Ventura, 445 F.3d 1157, 1160 (9th Cir. 2006) (“The scope 

of the intrusion here is indisputedly a ‘frightening and 

humiliating’ invasion, even when conducted ‘with all due 

courtesy.’” (quoting Giles v. Ackerman, 746 F.3d 614, 617 

(9th Cir. 1984))); Kirkpatrick v. City of Los Angeles, 
22 SHORTER V. BACA

803 F.2d 485, 489–90 (9th Cir. 1986) (“[T]he fact that a strip 

search is conducted reasonably, without touching and 

outside the view of all persons other than the party 

performing the search, does not negate the fact that a strip 

search is a significant intrusion on the person searched.”). 

But, at trial, jail officials admitted that their practice of 

keeping noncompliant detainees chained to their cell doors 

wearing only partial underwear did not serve any legitimate 

penological purpose.7 The CRDF watch commander 

testified that the only reason to chain a detainee to their cell 

door without clothing was to “get the clothing” from the 

detainee. But once the officer searches the detainee’s 

clothes, there was no reason to keep the detainee unclothed 

or chained. The watch commander also testified that 

keeping an inmate chained to the cell door “shouldn’t 

happen.” And a jail expert testified that there was no 

“penological practical reason for handcuffing an inmate to 

their cell door,” given that the handcuffs were used to protect 

the officers from the inmate and the cell door already served 

this purpose, and that the practice was “too ripe for potential 

abuse.”

That Los Angeles County jails no longer use the search 

procedure supports our conclusion that the search procedure 

was an exaggerated and unwarranted response to prison 

security. The County has changed its policy regarding the 

procedure of chaining detainees to their cell doors, now 

limiting the maximum time that detainees may be chained to 

the door absent approval from a watch commander. The 

County now also uses body scanners, which enable it to 

 7 This is a separate question from whether the County’s visual body 

cavity search policy was legitimately related to the jail’s security 

interests.
SHORTER V. BACA 23

avoid the visual cavity searches that were common when 

Shorter was a pretrial detainee.

Even at the time, the jail had an alternative, less abusive 

means of obtaining contraband from inmates. If a guard 

believed that an inmate had contraband, jail policy instructed 

the guard to isolate the inmate from other inmates, provide 

access to a toilet, turn off the water to the toilet, and line the 

toilet with plastic to trap any contraband as evidence. The 

deputies also could have sought out a mental health 

professional to talk to the detainee, or they could have 

reported the incident to the watch commander and 

documented it in the jail’s recording system. Instead, the 

record shows that CRDF deputies routinely disregarded 

these policies in favor of the more commonly used method 

of chaining detainees, unclothed, to their cell doors.

In the past, where we have concluded that the methods 

used to conduct the search are unnecessary and unduly 

humiliating to the detainee, we have not deferred to 

correctional officials’ search procedures. See Byrd v. 

Maricopa Cty. Sheriff’s Dep’t, 629 F.3d 1135, 1141–42 (9th 

Cir. 2011) (en banc), cert denied, 131 S. Ct. 2964 (2011). 

The facts presented in Shorter’s appeal are not as similar to 

Florence as they are to Byrd v. Maricopa County Sheriff’s 

Department, where our court, en banc, concluded that a 

cross-gender strip search of a pretrial detainee was an 

unreasonable incursion on the detainee’s Fourth 

Amendment rights. Id. at 1142. We concluded that 

deference to jail officials was unwarranted when the 

methods used as part of the search were unreasonable. Id. at 

1147. We confirmed that, “although valid reasons to search 

the inmates existed generally, there was no justification 

given for conducting a cross-gender strip search,” 

particularly when the search was not necessitated by an 
24 SHORTER V. BACA

emergency and when other guards of the inmate’s same 

gender were available to the conduct the search. Id. at 1143. 

“We readily acknowledge the deference due prison officials 

engaged in the admittedly difficult task of administering 

inmate populations. However, that deference does not 

extend to sanctioning a clear violation of an inmate’s 

constitutional rights.” Id. at 1147; accord Michenfelder v. 

Sumner, 860 F.2d 328, 332–33 (9th Cir. 1988) (confirming 

that searches that are “excessive, vindictive, harassing, or 

unrelated to any legitimate penological interest” violate the

Fourth Amendment).

Nor have we concluded that deference is routinely 

warranted to prison officials in other contexts, including 

when the prison officials make decisions about a detainee’s 

medical care. Chess, 790 F.3d at 973. In Chess, we 

concluded that the magistrate judge erred in giving the 

Norwood instruction for a § 1983 claim against a prison 

doctor who decided to withhold methadone to an inmate, 

rather than taper off the methadone while the inmate 

remained in a separate medical unit. See id. at 964, 973–75. 

And, in Mendiola-Martinez, we confirmed that there were 

genuine issues of disputed fact about whether a jail’s 

decision to shackle a detainee during a C-section was an 

exaggerated response to a security threat, particularly where 

the woman did not give any indication that she would try to 

escape. 836 F.3d at 1255. These cases acknowledge that 

determinations about whether to defer to jail officials are 

often fact-intensive and context-dependent.
SHORTER V. BACA 25

Here, where the County has not offered any reason why 

it needed to keep mentally ill inmates shackled and 

unclothed, without food, water, or access to a toilet for hours 

at a time, we conclude that the County’s search practices 

were not entitled to deference as a matter of law. The County 

has since disavowed this past shackling practice, concluding 

that it is no longer justified, but this does not mean that 

Shorter is deprived of a forum to vindicate her civil rights 

and obtain damages, if appropriate. On these facts, the 

district court erroneously instructed the jury to defer to the 

judgment of jail officials.

C.

These instructional errors were not harmless. An error 

in a jury instruction is harmless if defendants demonstrate 

that “it is more probable than not that the jury would have 

reached the same verdict had it been properly instructed.” 

Clem, 566 F.3d at 1182. The defendants cannot make such 

a showing here. We have recognized that the Norwood 

instruction deals a “devastating blow” to the plaintiff’s 

constitutional claims. Harrington v. Scribner, 785 F.3d 

1299, 1307 (9th Cir. 2015). And it has been further 

suggested in a dissent that the instruction amounts to a 

“command to direct a verdict in favor of the government.” 

Norwood, 591 F.3d at 1072 (Thomas, J., dissenting). Given 

the strength of Shorter’s evidence that the jail’s policies were 

not reasonably related to the jail’s interest in securing 

inmates and staff, we conclude that giving these deference 

instructions was not harmless error.

D.

We understand that we have, at times, left it to the jury 

to decide whether deference to jail officials is warranted 

where there is a genuine dispute of material fact over 
26 SHORTER V. BACA

whether the jail’s policies or practices were unnecessary, 

unwarranted, or exaggerated. See Mendiola-Martinez, 

836 F.3d at 1257. Because the County has not offered any 

legitimate, security-based reason for the shackling of all 

inmates during recreation, for curtailing inmate meals and 

showers, or for the shackling of noncompliant inmates in 

their cells after searches, there is no such dispute of fact here. 

The jail officials were not entitled to deference on this 

record.

III.

Moving to Shorter’s misclassification claim, we 

conclude that the magistrate judge abused his discretion by 

denying Shorter’s motion for a new trial on her claim that 

she was placed in the more restrictive HOH unit without 

sufficient due process. Pretrial detainees have a right to 

procedural due process before they are subjected to more 

severe conditions of confinement than other detainees. See 

Mitchell v. Dupnik, 75 F.3d 517, 523 (9th Cir. 1986). 

Shorter presented evidence that jail officials did not provide 

her with grievance forms that she could use to challenge her 

mental health classification. Shorter also produced the DOJ 

letter, which confirmed that jail officials routinely did not 

complete mental health screenings and regularly failed to 

record the results of such screenings, when conducted, on the 

detainee’s electronic medical record. Because the County 

came forward with no evidence that Shorter had received 

such grievance forms, the jury verdict was against the clear 

weight of the evidence. Shorter is entitled to a new trial on 

this issue as well.

IV.

Turning finally to Shorter’s inadequate medical care 

claim, we vacate and remand for further proceedings in light 
SHORTER V. BACA 27

of our recent opinion in Gordon v. County of Orange, 888 

F.3d 1118 (9th Cir. 2018). In Gordon, we concluded that 

“claims for violations of the right to adequate medical care 

‘brought by pretrial detainees against individuals under the 

Fourteenth Amendment’ must be evaluated under an 

objective deliberate indifference standard,” and we set forth 

the elements of a medical care claim under the due process 

clause of the Fourteenth Amendment. Id. at 1124–25 

(quoting Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1070 

(9th Cir. 2016)). Not having the benefit of Gordon, the 

district court evaluated Shorter’s inadequate medical care 

claim under the Eighth Amendment’s subjective deliberate 

indifference standard. Because the pretrial grant of 

summary judgment was based on an erroneous legal 

standard, we vacate and remand the judgment in favor of 

County Defendants on Shorter’s § 1983 inadequate medical 

care claim for further proceedings consistent with Gordon.

V.

In conclusion, we understand that, while courts 

“unquestionably should be reluctant to second-guess prison 

administrators’ opinions about the need for security 

measures,” Block, 468 U.S. at 593 (Blackmun, J., 

concurring), the judicial system has a role in safeguarding 

inmates from serious civil rights abuses, the kind that Shorter 

claims here. If plaintiffs in § 1983 actions demonstrate that 

their conditions of confinement have been restricted solely 

because of overcrowding or understaffing at the facility, a 

deference instruction ordinarily should not be given. 

Similarly, if plaintiffs in § 1983 actions demonstrate that 

they have been subjected to search procedures that are an 

unnecessary, unjustified, or exaggerated response to 

concerns about jail safety, we do not defer to jail officials. 

Otherwise, “careless invocations of ‘deference’ run the risk 
28 SHORTER V. BACA

of returning us to the passivity of several decades ago, when 

the then-prevailing barbarism and squalor of many prisons 

were met with a judicial blind eye and a ‘hands off’ 

approach.” Id. at 594.

REVERSED and REMANDED as to the denial of 

Shorter’s motion for a new trial.

VACATED and REMANDED as to the partial grant 

of summary judgment in favor of County Defendants on 

Shorter’s § 1983 claim for inadequate medical care.