FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARY GORDON, successor-ininterest for decedent, Matthew 

Shawn Gordon, individually,

Plaintiff-Appellant,

v.

COUNTY OF ORANGE; ORANGE 

COUNTY SHERIFF’S DEPARTMENT;

SANDRA HUTCHENS, Orange County 

Sheriff - Coroner; ORANGE COUNTY 

CENTRAL MEN’S JAIL; ORANGE 

COUNTY HEALTH CARE AGENCY;

DOES, 5 through 10, inclusive; 

ROBERT DENNEY; BRIAN TUNQUE;

BRIANNE GARCIA; DEBRA FINLEY,

Defendants-Appellees.

No. 16-56005

D.C. No.

8:14-cv-01050-

CJC-DFM

OPINION

Appeal from the United States District Court

for the Central District of California

Cormac J. Carney, District Judge, Presiding

Argued and Submitted December 8, 2017

Pasadena, California

Filed April 30, 2018
2 GORDON V. COUNTY OF ORANGE

Before: Kim McLane Wardlaw and Ronald M. Gould, 

Circuit Judges, and Yvonne Gonzalez Rogers,

*

District Judge.

Opinion by Judge Gonzalez Rogers

SUMMARY**

42 U.S.C. § 1983

The panel vacated the district court’s summary judgment 

in a 42 U.S.C. § 1983 action alleging claims of inadequate 

medical care under the Due Process Clause of the Fourteenth 

Amendment, arising from the death of Matthew Gordon 

when he was a pretrial detainee in the Orange County Men’s 

Central Jail; and remanded for further proceedings.

The panel held that given developments in Section 1983 

jurisprudence, including the Supreme Court’s decision in 

Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015), and this 

court’s en banc opinion in Castro v. County of Los Angeles, 

833 F.3d 1060 (9th Cir. 2016), the proper standard of review 

of such claims was one of objective indifference, not 

subjective indifference. The panel held that because the 

district court applied a subjective standard to the plaintiff’s 

claims of inadequate medical care against individual 

defendants, the grant of summary judgment was in error.

 * 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.
GORDON V. COUNTY OF ORANGE 3

The panel declined to address the individual defendants’ 

claim of qualified immunity in the first instance.

The panel held that the district court improperly granted 

summary judgment for the County of Orange and associated 

entities on the ground that the plaintiff could not establish a 

custom or practice sufficient under Monell v. Department of 

Social Services, 436 U.S. 658 (1978). The panel left this 

question for the district court to address in the first instance 

using the proper standard.

COUNSEL

David A. Schlesinger (argued), Jacobs & Schlesinger LLP,

San Diego, California; Cameron Sehat, The Sehat Law Firm 

PLC, Irvine, California; for Plaintiff-Appellant.

Pancy Lin (argued) and S. Frank Harrell, Lynberg & 

Watkins, Orange, California, for Defendants-Appellees.

OPINION

GONZALEZ ROGERS, District Judge:

This case arises from the death of Matthew Gordon 

(“Gordon”) within 30 hours of being detained in the Orange 

County Men’s Central Jail (the “County Jail”). Plaintiff 

Mary Gordon, successor-in-interest for decedent, sued 

defendants Robert Denny, Brian Tunque, Brianne Garcia, 

and Debra Finley (“the Individual Defendants”); and the 

County of Orange and associated entities (“the Entity 

Defendants”) under 42 U.S.C. § 1983 for violating Gordon’s 

right to adequate medical care under the due process clause 
4 GORDON V. COUNTY OF ORANGE

of the Fourteenth Amendment. Given developments in 

Section 1983 jurisprudence, including the Supreme Court’s 

decision in Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015), 

and our en banc decision in Castro v. County of Los Angeles, 

833 F.3d 1060 (9th Cir. 2016), we conclude that the proper 

standard of review for such claims is one of objective 

indifference, not subjective indifference. Accordingly, 

summary judgment is vacated and the case is remanded to 

the district court for further proceedings consistent with this 

decision.

PROCEDURAL HISTORY

The Individual Defendants sought summary judgment 

on the ground that the plaintiff lacked evidence of their 

alleged deliberate indifference to the decedent’s health or 

safety. The Entity Defendants also sought summary 

judgment based upon the plaintiff’s failure to show a custom 

or practice sufficient under Monell v. Department of Social 

Services, 436 U.S. 658 (1978). In this regard, the plaintiff 

had proceeded on two theories which she alleged led to 

Gordon’s death. First, the plaintiff alleged the systematic 

use of the wrong intake form which resulted in the 

misclassification and misplacement of detainees. In 

particular, she claimed the Entity Defendants used a form 

designed to address alcohol withdrawal rather than one 

designed for opiate withdrawal. Second, she alleged the 

systematic failure to conduct welfare checks or “safety 

checks” from a vantage point which allowed for visual 

observation of the safety and welfare of all inmates.

The district court granted summary judgment in favor of 

the Individual Defendants reasoning that a due process 

challenge based on inadequate medical care required a 

showing of subjective deliberate indifference and that there 

was insufficient evidence to support that showing. The 
GORDON V. COUNTY OF ORANGE 5

district court also granted summary judgment in favor of the 

Entity Defendants on the plaintiff’s Monell claim on the 

ground that the plaintiff failed to present sufficient evidence 

of a custom or practice. The plaintiff timely appealed.

BACKGROUND

The events at issue began on September 8, 2013 at 

6:47 p.m. and ended on September 9, 2013 at 11:00 p.m. 

Within less than 30 hours, Matthew Gordon died while 

detained in Module C, Tank 11 of the Orange County Jail.

On September 8, 2013, the Placentia Police Department 

arrested Gordon on heroin-related charges and transported 

him to the County Jail. Defendant nurse Debra Finley 

(“Nurse Finley”) conducted an intake assessment of Gordon 

at 6:47 p.m. during which she inquired whether he “use[d] 

any street drugs.” In response Gordon indicated that he used 

“[h]eroine, by IV, at 3 grams a day.” To evaluate Gordon, 

Nurse Finley used an assessment form designed for alcohol 

withdrawal, entitled Clinical Institute Withdrawal 

Assessment for Alcohol (“CIWA”). She did not use the 

county’s “Clinical Opiate Withdrawal Scale” (“COWS”) 

assessment form.

Thereafter, defendant Nurse Finley consulted with nonparty Dr. Thomas Le (a consulting physician) (“Dr. Le”) 

who issued an “Opiate WD [Withdrawal] Order.” Therein, 

Dr. Le both ordered that Gordon be placed in regular housing 

rather than medical unit housing and prescribed Tylenol for 

pain, Zofran for nausea, and Atarax for anxiety. Dr. Le 

apparently crossed out a section under the heading “Nursing 

Detox Assessments” which stated “COWS and Vital Signs 

on admission and daily x5” and instead handwrote “CIWA 

x 4 Days,” that is, Gordon was to receive the ordered 
6 GORDON V. COUNTY OF ORANGE

protocol for four days. Nurse Finley completed the intake 

assessment and had no further contact with Gordon.

The plaintiff’s nursing expert opined that the county’s 

COWS form would have measured symptoms specific to 

opiate withdrawal and triggered a need to house Gordon in 

the Medical Observation Unit where Gordon would have 

been monitored more closely. The plaintiff’s expert further 

opined that had the COWS form been used, it is more 

probable than not that Gordon would have been found to be 

in medical distress hours prior to his death. The plaintiff 

proffered evidence that the Entity Defendants did not use the 

COWS form systematically, and changed their practice after 

Gordon’s death.

Following his intake assessment, Gordon waited for 

nearly ten hours to be assigned a space in the County Jail’s 

general population. During this time a fellow detainee 

observed Gordon vomit continuously for 30–45 minutes and 

“curl up in a ball.” At approximately 8:30 a.m. on 

September 9, 2013, Gordon was transferred to Module C, 

Tank 11 in the County Jail along with a “module card” to 

advise the deputies that Gordon required medical attention. 

While Gordon was in Module C, defendant nurse Brianne 

Garcia, on three occasions, administered the medications 

which Dr. Le prescribed but had no further interaction with 

the decedent.

Defendant Deputy Denny (“Deputy Denny”) conducted 

a welfare check of Module C at approximately 6:47 p.m. on 

September 9, 2013. He then conducted a second and third 

check after lights out at 8:31 p.m. and 9:29 p.m., 

respectively. The stated purpose of the checks was to 

“maintain the safety and health of the inmates and the 

security of the facilities” with “direct visual observation of 

each inmate . . . .” Deputy Denny testified that he conducted 
GORDON V. COUNTY OF ORANGE 7

these three welfare checks from a corridor which was twelve 

to fifteen feet away from Gordon’s bunk and was elevated 

approximately six feet from the Tank 11 floor. The 

plaintiff’s evidence suggests that the checks were further 

obscured by a glass corridor. In any event, Deputy Denny 

acknowledged that from his vantage point he was unable to 

determine whether an inmate was “breathing,” “alive,” or 

had “potential indicators of a physical problem.”

At approximately 10:46 p.m., inmates in Module C 

yelled “man down” to the deputies, the man being Gordon. 

Deputy Denny arrived within a couple of minutes. He 

testified that upon his arrival Gordon’s “face was blue, he 

was unresponsive and his skin was cold to the touch.” 

Medical staffers arrived a few minutes later and attempted to 

administer care. At 11:00 p.m. paramedics transported 

Gordon to Western Medical Center in Santa Ana where he 

was pronounced dead. The record reflects that defendant 

Brian Tunque was the supervising Sergeant on the night of 

the incident but was apparently not otherwise involved in 

events described herein.

STANDARD OF REVIEW

We review the district court’s decision to grant summary 

judgment de novo. Qwest Commc’ns Inc. v. City of 

Berkeley, 433 F.3d 1253, 1256 (9th Cir. 2006). Thus, 

viewing the evidence in the light most favorable to the 

nonmoving party, we must determine whether the district 

court correctly applied the relevant substantive law, and if 

so, whether genuine issues of material fact exist. Fichman 

v. Media Ctr., 512 F.3d 1157, 1159 (9th Cir. 2008) (internal 

citation omitted).
8 GORDON V. COUNTY OF ORANGE

DISCUSSION

A. Section 1983 Claims after Castro

With this Court’s en banc decision in Castro, we rejected 

the notion that a subjective deliberate indifference standard 

applied globally to all section 1983 claims, whether brought 

by pretrial detainees or by convicted prisoners. Castro, 

833 F.3d at 1069–71. This decision addresses the standard 

for claims brought by pretrial detainees for inadequate 

medical care.

We briefly recount the jurisprudential history relevant 

here. In Estelle v. Gamble, 429 U.S. 97, 104 (1976), the 

Supreme Court held that prison officials’ “deliberate 

indifference to serious medical needs of prisoners” violates 

the Cruel and Unusual Punishment Clause of the Eighth 

Amendment. In 1986, we concluded in Carnell that “even 

though pretrial detainees[sic] claims ‘arise under the due 

process clause [of the Fourteenth Amendment], the [E]ighth 

[A]mendment guarantees provide a minimum standard of 

care for determining rights as a pretrial detainee, including 

rights . . . to medical care.’” Carnell v. Grimm, 74 F.3d 977, 

979 (9th Cir. 1996) (quoting Jones v. Johnson, 781 F.2d 769, 

771 (9th Cir. 1986) (emphasis in Carnell)). Thus, prior to 

our decision in Castro, all conditions of confinement claims, 

including claims for inadequate medical care, were analyzed 

under a subjective deliberate indifference standard whether 

brought by a convicted prisoner under the Eighth 

Amendment or pretrial detainee under the Fourteenth 

Amendment. See Clouthier v. County of Contra Costa, 

591 F.3d 1232, 1242–43 (9th Cir. 2010) (finding a single 

“deliberate indifference” test for plaintiffs who bring a 
GORDON V. COUNTY OF ORANGE 9

constitutional claim—whether under the Eighth Amendment 

or the Fourteenth Amendment).1

In Castro we noted that our decision in Clouthier to 

create a single “deliberate indifference” standard for 

constitutional claims brought under the Eighth and 

Fourteenth Amendments was “cast . . . into serious doubt”

 1 Clouthier concerned a medical care case in which the parents of a 

pretrial detainee claimed that jail officials violated the due process rights 

of their son by failing to address his medical needs, in particular there, 

suicide prevention. Clouthier, 591 F.3d at 1240. The Court interpreted 

prior precedent “to require proof of punitive intent for failure-to-protect 

claims, whether those claims arise in a pretrial or a post-conviction 

context.” Castro, 833 F. 3d at 1068 (citing Clouthier, 591 F.3d at 1236). 

“We further held that this standard incorporates the subjective test . . . .” 

Id. (citing Clouthier, 591 F.3d at 1242) (emphasis in original). Under 

this subjective test, the Clouthier Court held that “[a]n official’s failure 

to alleviate a significant risk that he should have perceived but did not, 

while no cause for commendation,” cannot support liability under the 

Fourteenth Amendment. Clouthier, 591 F.3d at 1242 (quoting Farmer 

v. Brennan, 511 U.S. 825, 838 (1994)).

Clouthier relied upon both Farmer, supra, and Bell v. Wolfish, 

441 U.S. 520, 535 (1979) (finding that inmates who sue prison officials 

for injuries suffered while in custody may do so under the Eighth 

Amendment’s Cruel and Unusual Punishment Clause or, if not yet 

convicted under the Fourteenth Amendment’s Due Process Clause). In 

Farmer, the Supreme Court held that a prison official cannot be liable 

under the Eighth Amendment’s Cruel and Unusual Punishment Clause 

for denying an inmate adequate conditions of confinement “unless the 

official knows of and disregards an excessive risk to inmate health or 

safety; the official must both be aware of facts from which the inference 

could be drawn that a substantial risk of serious harm exists, and he must 

also draw the inference.” 511 U.S. at 837. We interpreted Farmer to 

stand for the proposition that “the official must demonstrate a subjective 

awareness of the risk of harm.” Conn v. City of Reno, 591 F.3d 1081, 

1096 (9th Cir. 2010), cert. granted and judgment vacated, 563 U.S. 915 

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

(emphasis in original).
10 GORDON V. COUNTY OF ORANGE

by the Supreme Court’s holding in Kingsley. Castro, 

833 F.3d at 1068. In Kingsley, the Supreme Court had 

considered “whether, to prove an excessive force claim a 

pretrial detainee must show that the officers were 

subjectively aware that their use of force was unreasonable, 

or only that the officers’ use of force was objectively

unreasonable.” Kingsley, 135 S. Ct. at 2470 (emphasis in 

original). The Supreme Court identified two “separate stateof-mind questions,” namely the defendant’s state of mind 

regarding (i) “his physical acts—i.e., his state of mind with 

respect to the bringing about of certain physical 

consequences in the world” and (ii) “whether his use of force 

was excessive.” Id. at 2472. With regard to the first 

question, defendants did not dispute that the officers’ use of 

force was intentional. With regard to the second question, 

the Court held that “the relevant standard is objective not 

subjective.” Id. Put differently, the Supreme Court 

explained that “a pretrial detainee must show only that the 

force purposely or knowingly used against him was 

objectively unreasonable.” Id. at 2473.

Interpreting Kingsley, our decision in Castro extended 

the objective standard to failure-to-protect claims, 

reasoning, in part, that “Section 1983 itself ‘contains no 

state-of-mind requirement independent of that necessary to 

state a violation’ of the underlying federal right.” Castro, 

833 F.3d at 1069 (quoting Bd. of Cty. Comm’rs v. Brown, 

520 U.S. 397, 405 (1997)); see also Daniels v. Williams, 

474 U.S. 327, 330 (1986). We concluded that as with 

excessive force claims, failure-to-protect “claims arise 

under” the same constitutional framework. Castro, 833 F.3d 

at 1069–70. Thus “it does not matter whether the defendant 

understood that the force used was excessive, or intended it 

to be excessive, because the standard is purely objective.” 

Id. at 1068 (citing Kingsley, 136 S. Ct. at 2472–73). In short, 
GORDON V. COUNTY OF ORANGE 11

in Castro, we declared that Kingsley “expressly rejected the 

interpretation of Bell on which we had relied in Clouthier

. . . . [and] the notion that there exists a single ‘deliberate 

indifference’ standard applicable to all § 1983 claims, 

whether brought by pretrial detainees or by convicted 

prisoners.” Id. (Emphasis in original.)

B. Claims for Inadequate Medical Care by Pretrial 

Detainees

While Kingsley did “not necessarily answer the broader 

question of whether the objective standard applies to all 

Section § 1983 claims brought under the Fourteenth 

Amendment against individual defendants[,]” (id.) logic 

dictates extending the objective deliberative indifference 

standard articulated in Castro to medical care claims.2 First, 

the landscape remains the same. As noted, we remain in a 

realm where “Section 1983 itself ‘contains no state-of-mind 

requirement independent of that necessary to state a 

violation’ of the underlying federal right” (id.) and here, the 

medical care claims brought by pretrial detainees also “arise 

under the Fourteenth Amendment’s Due Process Clause, 

rather than under the Eighth Amendment’s Cruel and 

Unusual Punishment Clause” (id. at 1069–70). Notably, the 

“broad wording of Kingsley . . . . did not limit its holding to 

‘force’ but spoke to ‘the challenged governmental action’ 

 2 The Second Circuit also recently extended the objective deliberate 

indifference standard to all conditions of confinement claims brought 

under the due process clause of the Fourteenth Amendment. See Darnell 

v. City of New York, 849 F.3d 17, 36 (2d Cir. 2017) (opining on a wide 

range of conditions of confinement claims brought by twenty pretrial 

detainees, the court held “[c]onsistency with the Supreme Court’s 

decision in Kingsley now dictates that deliberate indifference be 

measured objectively in due process cases”).
12 GORDON V. COUNTY OF ORANGE

generally.” Id. at 1070 (quoting Kingsley, 135 S. Ct. at 2473–

74).

Second, the Supreme Court has treated medical care 

claims substantially the same as other conditions of 

confinement violations including failure-to-protect claims. 

For instance in 1991, in Wilson v. Seiter, the Supreme Court 

saw “no significant distinction between claims alleging 

inadequate medical care and those alleging inadequate 

‘conditions of confinement.’ Indeed, the medical care a 

prisoner receives is just as much a ‘condition’ of his 

confinement as . . . the protection he is afforded against other 

inmates.” Wilson v. Seiter, 501 U.S. 294, 303 (1991). Third, 

we have long analyzed claims that government officials 

failed to address pretrial detainees’ medical needs using the 

same standard as cases alleging that officials failed to protect 

pretrial detainees in some other way.3 Simmons v. Navajo 

Cty., Ariz., 609 F.3d 1011, 1017–18 (9th Cir. 2010);

Clouthier, 591 F.3d at 1241–42; Lolli v. County of Orange,

351 F.3d 410,418–19 (9th Cir. 2004).

Accordingly, we hold that claims for violations of the 

right to adequate medical care “brought by pretrial detainees 

against individual defendants under the Fourteenth 

Amendment” must be evaluated under an objective 

deliberate indifference standard. Castro, 833 F.3d at 1070. 

Based thereon, the elements of a pretrial detainee’s medical 

 3 Correspondingly, other circuit courts treat failure-to-protect claims 

as claims alleging failure to provide adequate medical care. See Young

v. City of Mount Rainier, 238 F.3d 568, 575 (4th Cir. 2001) (concluding 

that a failure-to-protect claim was “no different in any meaningful 

respect from the indifferent-to-medical-needs claim”); Hare v. City of 

Corinth, 74 F.3d 633, 644 (5th Cir. 1996) (en banc) (noting “the absence 

of a constitutionally significant distinction between failure-to-protect 

and medical care claims”).
GORDON V. COUNTY OF ORANGE 13

care claim against an individual defendant under the due 

process clause of the Fourteenth Amendment are: (i) the 

defendant made an intentional decision with respect to the 

conditions under which the plaintiff was confined; (ii) those 

conditions put the plaintiff at substantial risk of suffering 

serious harm; (iii) the defendant did not take reasonable 

available measures to abate that risk, even though a 

reasonable official in the circumstances would have 

appreciated the high degree of risk involved—making the 

consequences of the defendant’s conduct obvious; and 

(iv) by not taking such measures, the defendant caused the 

plaintiff’s injuries. “With respect to the third element, the 

defendant’s conduct must be objectively unreasonable, a test 

that will necessarily ‘turn[ ] on the facts and circumstances 

of each particular case.’” Id. at 1071 (quoting Kingsley, 

135 S. Ct. at 2473; Graham v. Connor, 490 U.S. 386, 396 

(1989)). The “‘mere lack of due care by a state official’ does 

not deprive an individual of life, liberty, or property under 

the Fourteenth Amendment.” Id. (quoting Daniels, 474 U.S. 

at 330–31). Thus, the plaintiff must “prove more than 

negligence but less than subjective intent—something akin 

to reckless disregard.”4 Id.

 4 This differs from the inquiry under the Eighth Amendment which 

requires that the “prison official must subjectively have a sufficiently 

culpable state of mind.” Id. at 1070–71 (quoting Estate of Ford v. 

Ramirez-Palmer, 301 F.3d 1043, 1049 (9th Cir. 2002) (emphasis in 

original)). “A prison official cannot be found liable under the Eighth 

Amendment for denying an inmate humane conditions of confinement 

unless the official knows of and disregards an excessive risk to inmate 

health or safety.” Estate of Ford, 301 F.3d at 1050 (quoting Farmer v. 

Brennan, 511 U.S. 825, 837 (1994)). By contrast “a pretrial detainee 

need not prove those subjective elements about the officer’s actual 

awareness of the level of risk.” Castro, 833 F.3d at 1071.
14 GORDON V. COUNTY OF ORANGE

Because the district court applied a subjective standard 

to the plaintiff’s claim of inadequate medical care, the grant 

of summary judgment was in error.

C. Qualified Immunity Under an Objective 

Standard

The Individual Defendants argue that even under an 

objective deliberate indifference standard they are immune 

from liability under the doctrine of qualified immunity. The 

district court did not reach this issue. Accordingly, we 

decline to address the question of qualified immunity in the 

first instance.

D. The Monell Claim against the Entity Defendants 

The district court also granted summary judgment for the 

Entity Defendants on the ground that the plaintiff could not 

establish a custom or practice sufficient under Monell. In 

light of this opinion, the grant of summary judgment was 

improper. We also leave this question for the district court 

to address in the first instance using the proper standard.

Accordingly, summary judgment as to all defendants is 

VACATED and REMANDED for further proceedings 

consistent with this opinion.