FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SURIE ALEXANDER, 

Plaintiff-Appellant, 

 v. 

DAU V. NGUYEN, M.D., in his 

individual capacity, 

Defendant-Appellee.

No. 22-55588 

D.C. No. 

5:19-cv-01359-

DSF-SP 

OPINION

Appeal from the United States District Court

for the Central District of California

Dale S. Fischer, District Judge, Presiding

Argued and Submitted June 5, 2023

Pasadena, California

Filed August 25, 2023

Before: Milan D. Smith, Jr., David F. Hamilton,* and 

Daniel P. Collins, Circuit Judges.

Opinion by Judge David F. Hamilton

* The Honorable David F. Hamilton, United States Circuit Judge for the 

U.S. Court of Appeals for the Seventh Circuit, sitting by designation.
2 ALEXANDER V. NGUYEN

SUMMARY**

Pretrial Detainees/Substantive Due Process

The panel affirmed, on the merits rather than based on 

the defense of qualified immunity, the district court’s 

summary judgment in favor of Dr. Dau Nguyen, a 

psychiatrist at Patton State Hospital in California, in Surie 

Alexander’s 42 U.S.C. § 1983 action alleging that he was 

twice attacked by a fellow patient while he was a pretrial 

detainee and a patient at the Hospital. 

Alexander sued Nguyen for injuries from the second 

attack, alleging that Dr. Nguyen violated his Fourteenth 

Amendment right to substantive due process. Alexander 

argued that Dr. Nguyen denied him appropriate medical care 

in violation of his Fourteenth Amendment rights under 

Gordon v. County of Orange, 888 F.3d 1118 (9th Cir. 2018), 

which requires a plaintiff to “prove more than negligence but 

less than subjective intent—something akin to reckless 

disregard,” while Dr. Nguyen argued that the proper inquiry 

was whether Alexander was deprived of safe conditions 

under Youngberg v. Romeo, 457 U.S. 307 (1982), which 

requires a finding of conscious indifference amounting to 

gross negligence. 

The panel determined that both tests ask whether Dr. 

Nguyen’s conduct was reasonable, and both require 

Alexander to show that Dr. Nguyen’s conduct was worse 

than negligent. The panel held that under either test, 

Alexander offered no evidence that Dr. Nguyen failed to act 

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

been prepared by court staff for the convenience of the reader.
ALEXANDER V. NGUYEN 3 

reasonably, let alone that he was “more than negligent” in 

not transferring Alexander or the other patient after the first 

attack. Although Alexander was attacked a second time, the 

evidence showed that Dr. Nguyen’s responses to both 

incidents were thorough and careful. Accordingly, the panel 

found no violation of Alexander’s constitutional rights. 

COUNSEL

Zulu Ali (argued), Law Office of Zulu Ali, Riverside, 

California, for Plaintiff-Appellant. 

Thomas M. McMahon (argued), Deputy Attorney General; 

Donna M. Dean, Supervising Deputy Attorney General; 

Pamela L. Holmes, Acting Senior Assistant Attorney 

General; Rob Bonta, California Attorney General; California 

Attorney General’s Office, Los Angeles, California, for 

Defendant-Appellee.
4 ALEXANDER V. NGUYEN

OPINION

HAMILTON, Circuit Judge:

While plaintiff Surie Alexander was a pretrial detainee 

and a patient at Patton State Hospital in California, he was 

twice attacked by a fellow patient. He sued Dr. Dau Nguyen, 

the psychiatrist in charge of his unit, under 42 U.S.C. § 1983 

for injuries from the second attack, alleging that Dr. Nguyen 

violated his Fourteenth Amendment right to substantive due 

process. The district court granted Dr. Nguyen’s motion for 

summary judgment based on the defense of qualified 

immunity. We affirm summary judgment on Alexander’s 

claim, basing our decision on the merits of the claim rather 

than qualified immunity.

I. Factual and Procedural Background

We state the facts relevant for purposes of summary 

judgment, giving Alexander as the non-moving party the 

benefit of conflicts in the evidence and reasonable inferences 

that can be drawn from the evidence. Nehad v. Browder, 929 

F.3d 1125, 1132 (9th Cir. 2019). On February 7, 2017, 

Alexander was admitted to Patton State Hospital to 

determine whether he was competent to stand trial on a 

criminal charge. He was assigned to Unit 72, where he was 

treated by Dr. Nguyen, the unit psychiatrist. Hospital staff 

diagnosed Alexander with aphasia, which is the loss of the 

ability to understand or express speech due to brain damage. 

Alexander was initially deemed incompetent to stand trial, 

and staff in Unit 72 began working with him to restore his 

competency.

On April 29, 2017, another patient in Unit 72 struck 

Alexander twice on the left side of the head with his fist. 
ALEXANDER V. NGUYEN 5

Alexander was treated by nursing staff, who noted redness 

on the left side of his face but observed no bleeding, 

bruising, swelling, or adverse neurological impacts.

A special incident report was prepared, and the 

professional staff of Unit 72 met to discuss what action 

should be taken to prevent further violence between 

Alexander and the patient who attacked him. When patienton-patient violence occurs in a state hospital, the standard of 

care does not require automatic transfer of one of the patients 

to a different unit. The undisputed evidence in this record 

shows instead that providers must carefully weigh several 

factors to determine the best course of action for the patients 

and the hospital. These factors include the severity of the 

assault, whether there were prior assaults or threats between 

the two patients, whether the patients can be counseled to 

avoid further violence, whether the victim feels safe 

remaining in his current unit, and whether the victim would 

enjoy greater well-being in a different unit.

Dr. Nguyen initially recommended that Alexander be 

transferred to a unit for fragile patients, but Alexander did 

not meet the requirements. After consulting with other 

members of the Unit 72 staff, Dr. Nguyen ultimately decided 

that Alexander should not be moved to a different unit. Dr. 

Nguyen’s decision was based on his conclusions that (1) the 

assault was not particularly severe, (2) there had been no 

prior incidents between the two patients, (3) Alexander and 

the other patient were counseled on the need to refrain from 

further violence and both agreed, (4) when asked, Alexander 

said that he felt safe in Unit 72 and did not want to be 

transferred, and (5) there was no reasonable likelihood that 

Alexander’s well-being would be improved by transfer to a 

different unit. Dr. Nguyen and the staff also decided to 

adjust the medication of the patient who attacked Alexander 
6 ALEXANDER V. NGUYEN

and altered that patient’s access to the dining room to limit 

his interactions with Alexander.

On May 10, 2017, however, the same patient struck 

Alexander with his fists again, this time on the right side of 

his head. Alexander was immediately treated by staff, who 

noted slight discoloration and swelling near his lower right 

eyelid and a superficial scratch. He did not suffer any 

neurological damage, and an x-ray showed no break or 

fracture. Eight days after the incident, Alexander 

complained of intermittent pain in his right eye. He was 

evaluated by an ophthalmologist, who prescribed an 

ointment for eyelid abrasion and Motrin for pain and 

recommended further monitoring by hospital staff.

After the May 10 attack, another special incident report 

was prepared, and in consultation with the staff in Unit 72, 

Dr. Nguyen again weighed relevant factors to determine the 

best course of action. Immediately after the attack, staff had 

placed the aggressor patient in restraints and assigned a staff 

member to supervise him one-on-one, but the staff did not 

consider these to be feasible, long-term solutions. The staff 

also did not believe that adjusting the patient’s medication 

or limiting his access to the dining room would prevent 

further acts of violence. Alexander continued to say that he 

felt safe in Unit 72 and that he did not want to be transferred. 

Nevertheless, based principally on the fact that the patient 

had attacked Alexander twice, Dr. Nguyen and the staff in 

Unit 72, with the agreement of Alexander’s wife, decided to 

transfer him to a different unit.

Alexander was transferred to Unit 71 on May 17, 2017. 

Hospital records indicate no further violence between 

Alexander and the aggressor patient or any other patient or 

staff member. Alexander was released from Patton State 
ALEXANDER V. NGUYEN 7

Hospital in late February 2018 after staff determined he was 

competent to stand trial.

Alexander then filed this suit against Dr. Nguyen under 

42 U.S.C. § 1983 alleging a violation of his Fourteenth 

Amendment right to substantive due process. Dr. Nguyen 

moved for summary judgment, arguing (a) that the 

undisputed facts showed no violation of Alexander’s 

constitutional rights, and (b) that in any event Dr. Nguyen 

was entitled to qualified immunity. 

Dr. Patricia Tyler, a licensed psychiatrist with substantial 

experience treating patients within the California State 

Hospital system, provided an affidavit in support of Dr. 

Nguyen’s motion. Dr. Tyler is familiar with the standard of 

care applicable to hospitals and medical providers 

responding to incidents of patient-on-patient violence. 

According to Dr. Tyler, the reasonable and customary 

standard of care in such cases is to conduct a timely review 

of the incident, to perform a risk assessment to determine 

what caused the incident, and to consider and coordinate 

reasonable actions to prevent further violence, while 

considering the impact of any action on patient care. This 

decision process requires providers to weigh various factors, 

including the severity of the incident, any prior incidents of 

violence against patients or staff involving the aggressor 

patient, whether medication or schedule changes could 

prevent further acts of violence, whether the patients 

involved could be counseled to avoid retaliation and further 

violence, the availability of appropriate treatment beds in 

other units and the level of aggression or risk of aggression 

in those units, and victim and family preferences. Dr. Tyler 

opined that Dr. Nguyen met and exceeded the standard of 

care for responding to patient-on-patient aggression after 
8 ALEXANDER V. NGUYEN

both incidents. Plaintiff Alexander has not offered any 

evidence disputing this evidence of the standard of care.

The district court granted Dr. Nguyen’s motion for 

summary judgment. The court did not decide whether 

Alexander’s constitutional rights were violated but 

concluded that Dr. Nguyen was entitled to qualified 

immunity because it was not clearly established that his 

actions violated the Constitution.

II. Jurisdiction and Standard of Review

We have jurisdiction over this appeal pursuant to 28 

U.S.C. § 1291. We review de novo the district court’s grant 

of summary judgment. Nehad, 929 F.3d at 1132. As noted, 

in reviewing a grant of summary judgment, we view all facts 

and draw all reasonable inferences in the light most 

favorable to the non-moving party. Id. Summary judgment 

is appropriate where the movant shows there is no genuine 

dispute as to any material fact and the movant is entitled to 

judgment as a matter of law. Fed. R. Civ. P. 56(a); Rice v. 

Morehouse, 989 F.3d 1112, 1120 (9th Cir. 2021). 

III. Analysis

A government official is entitled to qualified immunity 

“unless the plaintiff raises a genuine issue of fact showing 

(1) ‘a violation of a constitutional right,’ and (2) that the right 

was ‘clearly established at the time of [the] defendant’s 

alleged misconduct.’” Evans v. Skolnik, 997 F.3d 1060, 

1064 (9th Cir. 2021) (quoting Pearson v. Callahan, 555 U.S. 

223, 232 (2009)). The court may address these issues in

either order. Id. at 1064–66.

This court tends “to address both prongs of qualified 

immunity where the two-step procedure promotes the 

development of constitutional precedent in an area where 
ALEXANDER V. NGUYEN 9

this court’s guidance is ... needed.” Martinez v. City of 

Clovis, 943 F.3d 1260, 1270 (9th Cir. 2019) (quoting Horton 

by Horton v. City of Santa Maria, 915 F.3d 592, 602 (9th 

Cir. 2019) (internal quotation marks omitted)). Because the 

law governing pretrial detainees’ claims of inadequate 

medical care and other dangerous conditions of confinement 

is still developing in the wake of the Supreme Court’s 

decision in Kingsley v. Hendrickson, 576 U.S. 389 (2015), 

we address the first prong, which is decisive here. We need 

not discuss qualified immunity separately.

Alexander argues that he can prove that Dr. Nguyen 

denied him appropriate medical care in violation of his 

Fourteenth Amendment rights under the test set forth in 

Gordon v. County of Orange, 888 F.3d 1118 (9th Cir. 2018).

Dr. Nguyen argues that the proper inquiry is whether 

Alexander was deprived of safe conditions under the test in 

Youngberg v. Romeo, 457 U.S. 307 (1982). These tests 

differ only slightly. Both ask whether Dr. Nguyen’s conduct 

was reasonable, and both require Alexander to show that Dr. 

Nguyen’s conduct was worse than negligent. The 

undisputed facts show that Alexander cannot meet this 

burden under either phrasing.

Gordon followed Kingsley and held that claims for 

violations of the right to adequate medical care brought by 

pretrial detainees are to be evaluated under an objective 

deliberate indifference standard. 888 F.3d at 1124–25. To 

prevail on such a claim, the pretrial detainee must prove: 

“(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 
10 ALEXANDER V. NGUYEN

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.” Id. at 1125. Gordon made a significant

point regarding the third element: “mere lack of due care by 

a state official” is not enough to show a constitutional 

violation. Id. (quoting Castro v. County of Los Angeles, 833 

F.3d 1060, 1071 (9th Cir. 2016) (en banc) (internal quotation 

marks omitted)). The plaintiff must “prove more than 

negligence but less than subjective intent—something akin 

to reckless disregard.” Id. (quoting Castro, 833 F.3d at 

1071).

In Youngberg, the Supreme Court held that patients 

committed involuntarily to state hospitals have a 

constitutional right to safe conditions. 457 U.S. at 315–16. 

Claims alleging violations of that right are evaluated under a 

professional judgment standard. Under this standard, 

decisions made by appropriate professionals are 

“presumptively valid,” and liability “may be imposed only 

when the decision by the professional is such a substantial 

departure from accepted professional judgment, practice, or 

standards as to demonstrate that the person responsible 

actually did not base the decision on such a judgment.” Id.

at 323. The standard from Youngberg thus considers 

whether a hospital official’s conduct “diverges from that of 

a reasonable professional.” Ammons v. Washington Dep’t of 

Social & Health Servs., 648 F.3d 1020, 1027 (9th Cir. 2011). 

To impose liability, the professional judgment standard 

requires a “finding of conscious indifference amounting to 

gross negligence.” Estate of Conners by Meredith v. 

O’Connor, 846 F.2d 1205, 1208 (9th Cir. 1988).

This case does not depend on any nuanced differences 

between these standards. Alexander has offered no evidence 
ALEXANDER V. NGUYEN 11

that Dr. Nguyen failed to act reasonably, let alone that he 

was “more than negligent” when he decided not to transfer 

Alexander or the other patient after the April 29 incident. 

Undisputed evidence shows that Dr. Nguyen’s response to 

the first attack on Alexander was reasonable (as was his 

response to the second). Though Alexander was, 

regrettably, attacked a second time, the evidence shows that 

Dr. Nguyen’s responses to both incidents were thorough and 

careful. 

After each incident, hospital staff investigated and 

memorialized their findings in a report. Dr. Nguyen 

consulted with other professionals to determine the best 

course of action. He considered relevant factors and 

evaluated the risk of future violence against Alexander, as 

well as the effect of a transfer on Alexander’s treatment. Dr. 

Nguyen and his staff also implemented measures to reduce 

the likelihood of future incidents, including adjusting the 

aggressor’s medication and his access to the dining room 

when Alexander would be there. The declaration of Dr. 

Tyler, who has substantial experience treating patients in 

state hospitals and is familiar with the standard of care for 

responding to patient-on-patient violence, confirmed that 

Dr. Nguyen’s conduct complied with, and in fact exceeded, 

accepted professional standards. Whether evaluated under 

Gordon or under Youngberg, Dr. Nguyen’s conduct was 

reasonable and did not violate Alexander’s constitutional 

rights.

Alexander’s arguments to the contrary do not establish a 

genuine dispute of material fact. He criticizes Dr. Nguyen’s 

decision to keep him in Unit 72 after the first attack, but the 

benefit of hindsight from the fact that Alexander was 

attacked a second time does not show that Dr. Nguyen’s 

original decision was unreasonable. Alexander is arguing, 
12 ALEXANDER V. NGUYEN

in effect, for a standard of strict liability for a second 

incident. That would not be consistent with the law in 

Youngberg or Gordon, or Kingsley, for that matter. The 

undisputed facts show that Dr. Nguyen based his decision on 

relevant factors, including whether a transfer would be 

conducive to Alexander’s treatment, and he took several 

measures to reduce the likelihood of further aggression. 

Alexander also argues that Dr. Nguyen should not have

relied on Alexander’s stated desire to stay in Unit 72 given 

his aphasia, but even assuming that Alexander was unable to 

express his wishes clearly, his stated preference was only 

one of several factors that Dr. Nguyen considered. Nothing 

in the record would allow a reasonable jury to find that Dr. 

Nguyen unreasonably relied solely—or even principally—

on Alexander’s stated preference when deciding not to 

transfer him after the first attack. Because the undisputed 

facts show that Dr. Nguyen acted reasonably in response to 

the April 29 incident, we find no violation of Alexander’s 

constitutional rights.

Accordingly, the judgment of the district court is 

AFFIRMED.