FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANA SANDOVAL, individually and as 

successor in interest to Ronnie 

Sandoval, Jr.; RONNIE SANDOVAL,

JR.; JOSIAH SANDOVAL,

Plaintiffs-Appellants,

v.

COUNTY OF SAN DIEGO; ROMEO DE 

GUZMAN; MARIA LLAMADO; DANA 

HARRIS,

Defendants-Appellees.

No. 18-55289

D.C. No.

3:16-cv-01004-

BEN-AGS

OPINION

Appeal from the United States District Court

for the Southern District of California

Roger T. Benitez, District Judge, Presiding

Argued and Submitted October 16, 2019

Submission Vacated March 16, 2020

Resubmitted January 6, 2021

Pasadena, California

Filed January 13, 2021
2 SANDOVAL V. COUNTY OF SAN DIEGO

Before: Kim McLane Wardlaw and Daniel P. Collins, 

Circuit Judges, and Joseph F. Bataillon,* District Judge.

Opinion by Judge Wardlaw;

Partial Concurrence and Partial Dissent by Judge Collins

SUMMARY**

Civil Rights

The panel ordered the appeal resubmitted, reversed the 

district court’s summary judgment and remanded in an 

action brought pursuant to 42 U.S.C. § 1983 against the 

County of San Diego and three nurses alleging that 

defendants violated Ronnie Sandoval’s Fourteenth 

Amendment right to adequate medical care while he was in 

custody at the San Diego Central Jail.

Sandoval died of a methamphetamine overdose at the 

San Diego Central Jail after medical staff left him 

unmonitored for eight hours, despite signs that he was under 

the influence of drugs, and then failed to promptly summon 

paramedics when they discovered him unresponsive and 

having a seizure. 

Concluding that the district court abused its discretion by 

summarily sustaining the defendants’ meritless—indeed 

* The Honorable Joseph F. Bataillon, United States District Judge 

for the District of Nebraska, 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.
SANDOVAL V. COUNTY OF SAN DIEGO 3

frivolous—evidentiary objections, the panel considered the 

objected-to evidence. Turning to the merits, the panel first 

noted that after the district court issued its decision, this 

court clarified in Gordon v. County of Orange, 888 F.3d 

1118, 1124–25 (9th Cir. 2018), that an objective standard 

applies to constitutional claims of inadequate medical care 

brought by pretrial detainees. In light of Gordon, the district 

court erred by applying the subjective deliberate indifference 

standard to plaintiff’s Fourteenth Amendment claim. 

Because the parties had briefed Gordon’s objective 

framework on appeal, the panel applied it here.

Applying the Gordon framework and viewing the 

evidence in plaintiff’s favor, the panel held that a jury could 

conclude that Sandoval would not have died but for the 

defendants’ unreasonable response to his obvious signs of 

medical distress. Specifically, a jury could conclude that a 

reasonable nurse who was told that Sandoval was shaking, 

tired, and disoriented—and who was specifically directed by 

a deputy to evaluate Sandoval more thoroughly—would 

have understood that Sandoval faced a substantial risk of 

suffering serious harm. Defendant Nurse Romeo de 

Guzman therefore was not entitled to summary judgment on 

liability. The panel reached the same conclusion for the 

claims against Nurses Dana Harris and Maria Llamado, 

concluding that their failure to promptly call paramedics was 

objectively unreasonable. 

The panel further held that plaintiff had demonstrated 

that the available law was clearly established at the time as 

to the unreasonableness of the nurses’ conduct. The panel 

concluded that a reasonable nurse, knowing what Llamado, 

Harris, and de Guzman knew, would have understood that 

failing to call paramedics (Llamdo and Harris), or failing to 

check on Sandoval for hours and failing to pass on 
4 SANDOVAL V. COUNTY OF SAN DIEGO

information about his condition (de Guzman), presented 

such a substantial risk of harm to Sandoval that the failure to 

act was unconstitutional. Accordingly, the nurses were not 

entitled to qualified immunity. 

The panel held that viewing the evidence in the light 

most favorable to plaintiff, there was a triable issue of fact 

as to the County’s liability under Monell v. Department of 

Social Services, 436 U.S. 658, 694 (1978). 

Concurring in the judgment in part and dissenting in part, 

Judge Collins agreed with the majority’s ultimate conclusion 

that Nurses Harris and Llamado were not entitled to 

summary judgment, but he would affirm the district court’s 

grant of summary judgment to Nurse de Guzman and to the 

County of San Diego. Judge Collins wrote that because in 

2014, the then controlling deliberate-indifference liability 

standards included a subjective element, plaintiff had to 

make a showing of subjective deliberate indifference to 

defeat qualified immunity, and she had to do so even though 

that subjective element of the test for liability has since been 

overruled. Because plaintiff failed to present sufficient 

evidence to show that Nurse de Guzman was subjectively 

aware of Sandoval’s serious medical needs, de Guzman was 

entitled to qualified immunity. Judge Collins further stated 

that there was no evidence that the County had an 

unconstitutional policy, practice or custom. Finally, as to 

Nurses Harris and Llamdo, the sharply conflicting evidence 

indicated that they subjectively knew that the paramedics 

needed to be called. Because Judge Collins’s reasoning 

differed from the majority’s even with respect to Harris and 

Llamado, he concurred only in the judgment in part, and 

otherwise respectfully dissented.
SANDOVAL V. COUNTY OF SAN DIEGO 5

COUNSEL

Christopher S. Morris (argued), Morris Law Firm APC, San 

Diego, California, for Plaintiffs-Appellants.

Fernando Kish (argued) and James M. Chapin, Senior 

Deputies; Thomas E. Montgomery, County Counsel; Office 

of County Counsel, San Diego, California; for DefendantsAppellees.

OPINION

WARDLAW, Circuit Judge:

Ronnie Sandoval died of a methamphetamine overdose 

at the San Diego Central Jail after medical staff left him 

unmonitored for eight hours, despite signs that he was under 

the influence of drugs, and then failed to promptly summon 

paramedics when they discovered him unresponsive and 

having a seizure. Sandoval’s wife and successor-in-interest, 

Ana Sandoval (Plaintiff), brought suit under 42 U.S.C. 

§ 1983 against the County of San Diego and Nurses Romeo 

de Guzman, Dana Harris, and Maria Llamado, alleging that

they violated Sandoval’s Fourteenth Amendment right to 

adequate medical care in custody.

The district court granted summary judgment to the 

defendants, concluding that there were no triable issues of 

fact as to their liability and that the individual nurses were 

entitled to qualified immunity. After the district court issued 

its decision, we clarified that an objective standard applies 

to constitutional claims of inadequate medical care brought 

by pretrial detainees. Gordon v. County of Orange, 888 F.3d 

1118, 1124–25 (9th Cir. 2018). Applying that standard here, 

we reverse because genuine disputes of material fact 
6 SANDOVAL V. COUNTY OF SAN DIEGO

preclude the award of summary judgment, and we remand 

for further proceedings.

I.

Many of the facts underlying this case are in dispute. We 

recount them in the light most favorable to Plaintiff, as the 

non-moving party in the district court. Tuuamalemalo v. 

Greene, 946 F.3d 471, 474 (9th Cir. 2019) (per curiam).

A.

On February 22, 2014, deputies from the San Diego 

Sheriff’s Department went to Ronnie Sandoval’s residence 

to conduct a probation compliance check. After the deputies 

found a gram of methamphetamine and drug paraphernalia, 

they placed Sandoval under arrest and took him to the San 

Diego Central Jail. Unbeknownst to the arresting deputies, 

Sandoval had swallowed an additional amount of 

methamphetamine—later estimated to be several hundred 

times the typical recreational dose—in an effort to prevent 

its discovery.

At the jail, Deputy Matthew Chavez noticed that 

Sandoval was sweating and appeared disoriented and 

lethargic. When asked about these symptoms, Sandoval told 

Chavez that he might be diabetic. A nurse tested Sandoval’s 

blood sugar level, which came back normal, and Sandoval 

was placed in a holding cell.

Approximately one hour later, Sandoval was removed 

from the cell to have his booking photograph taken. Deputy 

Chavez observed that Sandoval “was still sweating a lot and 

appeared to be very tired and disoriented.” Chavez asked 

Sandoval if he was ok. Sandoval responded that he was very 

cold, which Chavez found odd because Sandoval was 
SANDOVAL V. COUNTY OF SAN DIEGO 7

sweating. Another deputy asked Sandoval if he had 

swallowed anything, and Sandoval became agitated and 

refused to answer further questions.

Deputy Chavez took Sandoval to the second-floor 

medical station for an assessment. There he encountered 

Nurse Romeo de Guzman. Chavez told de Guzman that 

while Sandoval had been cleared by the medical staff 

downstairs, he was sweating and appeared disoriented and 

lethargic. According to Chavez, he specifically told de 

Guzman, “there [is] still something going on [with 

Sandoval], so you need to look at him more thoroughly.”1 

De Guzman told Chavez to put Sandoval in Medical 

Observation Cell No. 1 (MOC1).

Shortly thereafter, around 5:00 p.m., de Guzman entered 

MOC1 to attend to Sandoval. Leonard Rodriguez, a deputy 

who accompanied de Guzman into the cell, noticed that 

Sandoval was “shaking mildly” and “appeared to be having 

withdrawals from drugs.” De Guzman gave Sandoval a 

second, and “very quick,” blood sugar test, which came back 

normal and then left the cell without conducting any further 

examination.

From there, accounts diverge. Nurse de Guzman claims 

that he told deputies that Sandoval was “cleared for booking 

process.” But according to Deputy Rodriguez’s written, 

contemporaneous police report, de Guzman instead asked 

whether Sandoval could be moved to a “sobering tank.” The 

deputies conferred and determined that it would be better if 

1 Nurse De Guzman contends that he was told only to check 

Sandoval’s blood sugar level, but on summary judgment, we must accept 

Deputy Chavez’s version of events.
8 SANDOVAL V. COUNTY OF SAN DIEGO

Sandoval remained in MOC1, presumably so that he would 

be subject to closer observation by the medical staff.

All agree that Sandoval was not transferred and instead 

remained in MOC1. And it is undisputed that even though 

MOC1 was only 20 feet from the nursing station, Nurse de 

Guzman did not check on Sandoval at any point during the 

remaining six hours of his shift. When the next shift of 

nurses arrived at 11:00 p.m., de Guzman did not tell them 

anything about Sandoval either. When asked why he never 

checked on Sandoval, de Guzman responded simply, “I 

don’t have to.”

The failure to monitor Sandoval may have resulted in 

part from the “mixed use” nature of MOC1. While MOC1 

was sometimes used to hold inmates requiring medical care, 

it was used at other times as an ordinary holding cell. Unlike 

other cells used for inmates with medical issues, no nurses 

were specifically assigned to monitor individuals being held 

in MOC1. Instead, nurses would attend to MOC1 only if 

told that an individual who was placed there needed care.

This sometimes caused confusion. For example, Nurse 

de Guzman claims that he did not check on Sandoval 

because he believed that MOC1 was used exclusively as an 

ordinary holding cell and that Sandoval was being held there 

for correctional, rather than medical, purposes. In contrast, 

the deputies believed that by leaving Sandoval in MOC1, 

they would ensure that he would be monitored by the 

medical staff.

Whatever the cause, Sandoval remained almost entirely 

unmonitored for nearly eight hours until Sergeant Robert 

Shawcroft walked past MOC1 at 12:55 a.m. and noticed that 

Sandoval’s eyes “weren’t tracking” and that his skin tone 
SANDOVAL V. COUNTY OF SAN DIEGO 9

“wasn’t a fleshy color.”2 As Shawcroft watched, Sandoval 

slumped over and his eyes rolled back in his head. 

Shawcroft turned away to call for help, and when he turned 

back, he saw Sandoval hit his head on the wall and slide 

down to the floor.

Sergeant Shawcroft entered Sandoval’s cell and was 

soon joined by Deputies Nolan Edge and Matthew Andrade, 

and Nurses Dana Harris and Maria Llamado. Sergeant 

Shawcroft, Deputy Andrade, Deputy Edge, and Nurse 

Llamado all agree that Sandoval was unresponsive and 

having a seizure or “seizure-like activity.” In contrast, Nurse 

Harris contends that Sandoval was responsive, followed 

verbal commands, and was not seizing.

Whether Sandoval was unresponsive and seizing bears 

on an important distinction in this case between emergency 

medical technicians (EMTs) and paramedics. While the 

terms are sometimes used interchangeably, paramedics 

receive more advanced training than EMTs. EMTs can 

provide only basic life support (BLS) procedures, such as 

performing CPR and providing a patient with an oxygen 

mask. In contrast, paramedics are trained to perform 

advanced cardiovascular life support (ACLS) procedures, 

including establishing IVs, administering medications, 

reading heart rhythms, and inserting breathing tubes. 

Critically, when a patient is unresponsive, paramedics are 

required. In San Diego at least, EMTs will not transport 

unresponsive patients.

2 Other than one deputy who briefly checked on Sandoval around 

7:30 p.m., it appears that nobody entered MOC1 between around 

5:00 p.m., when Nurse de Guzman performed the blood test, and 12:55 

a.m., when Sergeant Shawcroft observed Sandoval in medical distress.
10 SANDOVAL V. COUNTY OF SAN DIEGO

Because Nurse Harris was the first nurse to arrive on the 

scene, she became the “team leader” with primary 

responsibility for directing Sandoval’s treatment. The 

evidence shows that even though Harris was told several 

times to call paramedics because Sandoval was 

unresponsive, she refused to do so.

Deputy Andrade, who happened to be a trained EMT, 

asked two or three times for paramedics to be called. Harris 

did not do so. Nurse Llamado says that she directly told 

Harris, “He has to go out 9-1-1,” meaning that paramedics 

were needed. Harris responded, “No, EMT.” Llamado then 

telephoned the charge nurse, Shirley Bautista, who also said 

that paramedics should be summoned. Llamado put the 

phone down and told Harris, “Shirley said he has to go now 

9-1-1.” Despite all of this, Harris still refused to call 

paramedics.3

It is undisputed that EMTs were initially summoned 

instead of paramedics. When the EMTs arrived around 

1:20 a.m., they informed the nurses and deputies that “they 

would not be able to transport Sandoval in the current 

condition he was in.” Paramedics were then called and 

arrived at 1:42 a.m.—47 minutes after Sandoval was first 

observed to be unresponsive and seizing. According to 

Deputy Andrade, Sandoval still had a pulse when the 

paramedics arrived. But he lost his pulse when he was 

transferred to a gurney. Resuscitation efforts failed, and 

Sandoval was pronounced dead at 2:11 a.m.

3 Harris denies that Deputy Andrade and Nurse Llamado told her to 

call paramedics, and contends that she did not believe paramedics were 

necessary because, in her view, Sandoval was responsive, 

communicative, and breathing on his own. On summary judgment, we 

must accept Andrade and Llamado’s very different version of events.
SANDOVAL V. COUNTY OF SAN DIEGO 11

During discovery, it was revealed that Nurse Harris did 

not know on the night of the incident that only paramedics, 

and not EMTs, could provide the ACLS treatment that 

Sandoval required—even though this was common 

knowledge among nurses. Nurse Llamado later admitted 

that she should have called paramedics herself when Harris 

refused to do so, and that she had “learned [her] lesson.”

B.

Sandoval’s wife, Ana Sandoval, filed this suit in 

California state court against Nurses de Guzman, Harris, and 

Llamado, and the County of San Diego. The complaint 

alleged that the individual nurses had violated the Fourteenth 

Amendment by failing to provide Sandoval adequate 

medical care, and that the County was likewise liable 

because its policy of using MOC1 as a mixed used cell, 

without proper communication protocols, created the 

confusion among the medical staff that led to Sandoval’s 

death. The complaint also asserted several state law claims.4

The defendants removed the case to federal court and 

later moved for summary judgment. For reasons discussed 

in more depth below, the district court granted summary 

judgment to the defendants on the constitutional claims 

brought under 42 U.S.C. § 1983 and declined to exercise 

supplemental jurisdiction over the state law claims. Plaintiff 

timely appealed.

4 Sandoval’s children Ronnie Sandoval Jr. and Josiah Sandoval were 

named as additional plaintiffs on some of the state law claims, but not on 

the constitutional claims under § 1983.
12 SANDOVAL V. COUNTY OF SAN DIEGO

II.

We have jurisdiction under 28 U.S.C. § 1291. We 

review the district court’s grant of summary judgment de 

novo. “Summary judgment is appropriate when, with the 

evidence viewed in the light most favorable to the nonmoving party, there are no genuine issues of material fact, so 

that the moving party is entitled to judgment as a matter of 

law.” Wilk v. Neven, 956 F.3d 1143, 1147 (9th Cir. 2020) 

(citation omitted); Fed. R. Civ. P. 56(a). “Evidentiary 

rulings made in the context of summary judgment motions 

are reviewed for abuse of discretion . . . .” Bias v. Moynihan, 

508 F.3d 1212, 1224 (9th Cir. 2007).

III.

Before discussing the merits, we address a significant 

evidentiary ruling by the district court. During briefing on 

the motion for summary judgment, the nurses and the 

County submitted boilerplate one-word objections for 

“relevance,” “hearsay,” and “foundation” to several pieces 

of evidence important to Plaintiff’s case, including the report 

of Plaintiff’s medical expert, the police reports of deputies at 

the scene, and the San Diego County Sheriff’s Medical 

Services’ standardized nursing procedures for treating 

seizures. The district court sustained all of these objections 

in a one-sentence ruling that read in full: “Defendants’ 

evidentiary objections, to which Plaintiffs did not respond, 

are sustained.” This decision, which had the effect of 

striking crucial evidence from the summary judgment 

record, was an abuse of discretion.

The defendants’ failure to explain their one-word 

objections, and the district court’s failure to explain its 

ruling, makes it difficult to know precisely why the court 

concluded that the evidence was inadmissible. But on the 
SANDOVAL V. COUNTY OF SAN DIEGO 13

record before us, it appears the objections were meritless, if 

not downright frivolous.

To begin, objections for relevance are generally 

unnecessary on summary judgment because they are 

“duplicative of the summary judgment standard itself.” 

Burch v. Regents of Univ. of Cal., 433 F. Supp. 2d 1110, 

1119 (E.D. Cal. 2006) (Shubb, J.). On summary judgment, 

a court must determine whether the evidence viewed in the 

light most favorable to the non-moving party creates a 

“genuine dispute as to any material fact” that must be 

resolved at trial. Fed. R. Civ. P. 56(a). And under Federal 

Rule of Evidence 401, evidence is relevant if it “has any 

tendency to make a fact more or less probable” and that fact 

“is of consequence in determining the action.” Fed. R. Evid. 

401. Putting these two standards together, if evidence 

submitted on summary judgment could create a genuine 

dispute of material fact, it is, by definition, “of consequence 

in determining the action,” and therefore relevant. Id. 

Conversely, if the submitted evidence does not create a 

genuine dispute of material fact, there is no need for the court 

to separately determine whether it is relevant because, even 

assuming it is not, it will not affect the ultimate summary 

judgment ruling. We therefore agree with Judge Shubb’s 

cogent observation that parties briefing summary judgment 

motions would be better served to “simply argue” the import 

of the facts reflected in the evidence rather than expending 

time and resources compiling laundry lists of relevance 

objections. Burch, 433 F. Supp. 2d at 1119.

In any event, the relevance objections here plainly lacked 

merit. For example, the objected-to police reports provide 

the deputies’ first-hand observations of Sandoval’s 

condition, and the objected-to report of Plaintiff’s medical 

expert is essential to her ability to show that Sandoval would 
14 SANDOVAL V. COUNTY OF SAN DIEGO

not have died if not for the defendants’ failure to provide 

adequate care. This evidence goes to the central issues in the 

case and is therefore more than sufficient to clear the low bar 

of relevance.5 See Fed. R. Evid. 401.

We reach the same conclusion with regard to the hearsay 

objections. Because the defendants did not explain these 

objections, we are largely reduced to guessing at the 

arguments underlying them. One possibility is that the 

defendants objected on the ground that the documents 

themselves would not be admissible at trial because they are 

out-of-court statements offered for their truth. See Fed. R. 

Evid. 801(c), 802. But “[a]t the summary judgment stage, 

we do not focus on the admissibility of the evidence’s form. 

We instead focus on the admissibility of its contents.” 

Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003); see

Fed. R. Civ. P. 56(c)(2). If the contents of a document can 

be presented in a form that would be admissible at trial—for 

example, through live testimony by the author of the 

document—the mere fact that the document itself might be 

excludable hearsay provides no basis for refusing to consider 

it on summary judgment. Fraser, 342 F.3d at 1036–37 

(holding that the plaintiff’s diary could be considered on 

5 The defendants provided an explanation for only one of their 

several objections, but in a twist of irony, that explanation makes clear 

that the objection lacked merit. The defendants objected to the Sheriff’s 

Department Medical Services Standardized Nursing Procedure on 

Seizure Disorder on the ground that “Nurse Harris determined that 

[Sandoval] was not having a seizure.” But whether Nurse Harris knew 

Sandoval was having a seizure is a hotly disputed issue in this case. It 

goes without saying that a district court evaluating an objection on 

summary judgment cannot simply accept the moving party’s version of 

disputed facts when determining which evidence is relevant.
SANDOVAL V. COUNTY OF SAN DIEGO 15

summary judgment because she could testify consistent with 

its contents at trial).

Here, the objected-to documents either reflect the 

personal knowledge of individuals who could be called to 

testify at trial or will likely be admissible at trial under 

exceptions to the hearsay rule. For example, Plaintiff’s 

expert witnesses can testify about the opinions expressed in 

their expert reports, and the deputies and medical examiner 

can testify about the personal observations reflected in their 

official reports. See id. To the extent the police reports 

recount statements made by the defendants in this case, they 

would be admissible as non-hearsay statements of a party 

opponent. See Fed. R. Evid. 801(d)(2). Hearsay therefore 

provided no basis for excluding the objected-to documents 

in their entirety. And to the extent the defendants intended 

to object to only parts of the documents, their unexplained 

generalized objections were insufficient to raise such an 

objection. See Fed. R. Evid. 103(a)(1)(B); United States v. 

Holland, 880 F.2d 1091, 1095 (9th Cir. 1989) (“Holland’s 

blanket objection to the admission of the tape does not 

preserve an objection to failure to redact the tape.”).

As for the foundation objections, “an objection to 

admission of evidence on foundational grounds must give 

the basis for objection in a timely way to permit the 

possibility of cure.” Jerden v. Amstutz, 430 F.3d 1231, 1237 

(9th Cir. 2005); accord 21 Charles Alan Wright & Arthur R. 

Miller, Federal Practice and Procedure § 5036.7 (2d ed. 2020 

update). The defendants’ one-word objections for 

“foundation” fell well short of providing Plaintiff with notice 

of the specific ground of objection and, consequently, what 

could be done to cure any defects. Accordingly, these 

objections also provided no basis for excluding the evidence.
16 SANDOVAL V. COUNTY OF SAN DIEGO

In an attempt to justify the district court’s evidentiary 

ruling, the defendants point to a local rule of the District 

Court for the Southern District of California that provides 

that the failure to file timely opposition papers “may 

constitute a consent to the granting of a motion or other 

request for ruling by the court.” See S.D. Cal. Local Rule 

7.1.f.3.c. It is not clear that this rule applies to a failure to 

file a written response to evidentiary objections.6 But in any 

event, the district court did not mention this rule or any other 

in sustaining the defendants’ objections, and we will not 

simply assume that it formed the basis for the evidentiary 

ruling.7

Because we conclude that the district court abused its 

discretion by summarily sustaining the defendants’ 

meritless—indeed frivolous—evidentiary objections, we 

will consider that evidence.

6 Southern District of California Local Rule 7.1.f.3.c provides that 

when a party “fails to file [opposition] papers in a manner required by 

Civil Local Rule 7.1.e.2,” the court may grant the opposing party’s 

request. S.D. Cal. Local Rule 7.1.f.3.c. The referenced rule—Rule 

7.1.e.2, which sets the time for filing an opposition—applies only to 

“motion[s], application[s], or order[s] to show cause.” S.D. Cal. Local 

Rule 7.1.e.2. It is not clear that evidentiary objections submitted in 

conjunction with a reply brief in support of a motion for summary 

judgment constitute a “motion” or “application” within the meaning of 

the rule. Other provisions of Local Rule 7.1 are ambiguous on this point.

7 We therefore have no occasion to address whether applying this 

local rule rigidly would amount to an abuse of discretion where, as here, 

it would effectively prevent a plaintiff from satisfying her burden on 

summary judgment. See Ghazali v. Moran, 46 F.3d 52, 53–54 (9th Cir. 

1995) (per curiam) (explaining the factors a district court must consider 

when applying a local rule would result in the dismissal of a case).
SANDOVAL V. COUNTY OF SAN DIEGO 17

IV.

Turning to the merits, we begin with a brief history of 

constitutional claims based on inadequate medical care, 

which, for reasons that will become apparent, provides 

important context for understanding the issues presented by 

this case.

A.

Individuals in state custody have a constitutional right to 

adequate medical treatment. See Estelle v. Gamble, 429 U.S. 

97, 104–05 (1976). For inmates serving custodial sentences 

following a criminal conviction, that right is part of the 

Eighth Amendment’s guarantee against cruel and unusual 

punishment. Id. However, pretrial detainees have not yet 

been convicted of a crime and therefore are not subject to 

punishment by the state. Accordingly, their rights arise 

under the Fourteenth Amendment’s Due Process Clause. 

Bell v. Wolfish, 441 U.S. 520, 535–36, 335 n.16 (1979).

Claims brought by convicted prisoners under the Eighth 

Amendment are governed by what we have called a 

“subjective deliberate indifference” standard. Gordon, 

888 F.3d at 1122; see Edmo v. Corizon, Inc., 935 F.3d 757, 

786 (9th Cir. 2019) (per curiam), cert. denied sub nom. ID 

DOC, ET AL. v. Edmo, No. 19-1280, 2020 WL 6037411 

(U.S. Oct. 13, 2020). Under this standard, a prison official 

will be liable for disregarding an inmate’s serious medical 

needs only if he was both “aware of facts from which the 

inference could be drawn that a substantial risk of serious 

harm exists” and actually “dr[e]w the inference.” Peralta v. 

Dillard, 744 F.3d 1076, 1086 (9th Cir. 2014) (en banc) 

(quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). 

Thus, a prison official who “should have been aware” of a 

medically related risk to an inmate, but in fact was not, “has 
18 SANDOVAL V. COUNTY OF SAN DIEGO

not violated the Eighth Amendment, no matter how severe 

the risk.” Id. (quoting Gibson v. Cnty. of Washoe, 290 F.3d 

1175, 1188 (9th Cir. 2002)).

Because pretrial detainees “retain at least those 

constitutional rights that we have held are enjoyed by 

convicted prisoners,” Bell, 441 U.S. at 545, we have 

sometimes looked to the Eighth Amendment as a starting 

point for determining the rights of pretrial detainees under 

the Fourteenth Amendment. Carnell v. Grimm, 74 F.3d 977, 

979 (9th Cir. 1996) (“[T]he [E]ighth [A]mendment 

guarantees provide a minimum standard of care for 

determining a prisoner’s rights as a pretrial detainee, 

including the prisoner’s rights to medical care.” (emphasis 

removed and cleaned up)). And in the context of claims of 

inadequate medical care, we had previously concluded that 

the Eighth Amendment and Fourteenth Amendment 

standards were precisely the same. See, e.g., Simmons v. 

Navajo Cnty., 609 F.3d 1011, 1017 (9th Cir. 2010). That is, 

to succeed on a claim of inadequate medical care, both 

convicted prisoners and pretrial detainees were required to 

establish subjective deliberate indifference on the part of the

defendant. Id.

The Supreme Court’s decision in Kingsley v. 

Hendrickson, 576 U.S. 389 (2015), however, cast doubt on 

our practice of evaluating Eighth Amendment and 

Fourteenth Amendment claims under the same standard. 

Kingsley involved claims that jail officials had used 

excessive force against a pretrial detainee. Id. at 391. When 

such claims are brought by convicted prisoners under the 

Eighth Amendment, liability turns on “whether force was 

applied in a good faith effort to maintain or restore 

discipline.” Whitley v. Albers, 475 U.S. 312, 320 (1986) 

(citation omitted); see also Hoard v. Hartman, 904 F.3d 780, 
SANDOVAL V. COUNTY OF SAN DIEGO 19

787–88 (9th Cir. 2018). The question presented in Kingsley

was whether the Eighth Amendment subjective good faith 

standard also applies to Fourteenth Amendment excessive 

force claims brought by pretrial detainees. 576 U.S. at 391–

92.

The Court held that the Eighth Amendment and 

Fourteenth Amendment standards were not the same. Id.

at 400 (“The language of the two Clauses differs, and the 

nature of the claims often differs.”). It concluded that for 

Fourteenth Amendment claims, the relevant question is not 

whether the defendant acted in good faith, but instead 

whether the force used was “objectively unreasonable.” Id.

at 396–97.

Recognizing that Kingsley called into question our 

practice of applying Eighth Amendment standards to other 

varieties of Fourteenth Amendment claims brought by 

pretrial detainees, we addressed the issue en banc in Castro 

v. County of Los Angeles, 833 F.3d 1060 (9th Cir. 2016). In 

Castro, a pretrial detainee alleged that prison officials had 

failed to protect him from violence at the hands of another 

inmate placed in his cell. Id. at 1064. We were mindful that 

when such failure-to-protect claims are brought by convicted 

prisoners under the Eighth Amendment, they are governed 

by a subjective deliberate indifference standard similar to the 

one that applies to claims of inadequate medical care. Id. 

at 1067–68.

However, in Castro, we concluded that while we had 

previously also applied the Eighth Amendment failure-toprotect standard to similar Fourteenth Amendment claims 

brought by pretrial detainees, we could no longer do so after 

Kingsley. Id. at 1069–70. We held instead that Fourteenth 

Amendment failure-to-protect claims should be analyzed 

under an objective framework, under which the critical 
20 SANDOVAL V. COUNTY OF SAN DIEGO

question is whether the defendant failed to take reasonable 

measures to abate a serious risk of harm to an inmate “even 

though a reasonable officer in the circumstances would have 

appreciated the high degree of risk involved—making the 

consequences of the defendant’s conduct obvious.” Id.

at 1071.

This was the state of the law at the time the district court 

ruled on the summary judgment motion here. Citing Castro, 

Plaintiff argued in the district court that an objective 

standard should apply to her Fourteenth Amendment claim 

that the defendants failed to provide Sandoval with adequate 

medical care. But the district court concluded that Castro, 

which had specifically addressed only failure-to-protect 

claims, had not overruled Ninth Circuit precedent applying 

the Eighth Amendment subjective deliberate indifference 

standard to inadequate medical care claims brought by 

pretrial detainees. Accordingly, the district court applied 

that subjective standard to Plaintiff’s claims and granted 

summary judgment in favor of the defendants.

After the district court’s ruling, however, we issued our 

opinion in Gordon, which made clear that Castro and 

Kingsley had in fact displaced our prior precedent for claims 

brought by pretrial detainees alleging inadequate medical 

care. Gordon, 888 F.3d at 1124–25. In Gordon, we adopted 

an objective framework for such claims that mirrored the 

framework Castro had adopted for failure-to-protect claims. 

Id. Under that standard, pretrial detainees alleging that jail 

officials failed to provide constitutionally adequate medical 

care must show:

(1) The defendant made an intentional 

decision with respect to the conditions 

under which the plaintiff was confined 
SANDOVAL V. COUNTY OF SAN DIEGO 21

[including a decision with respect to 

medical treatment];

(2) Those conditions put the plaintiff at 

substantial risk of suffering serious harm;

(3) 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

(4) By not taking such measures, the 

defendant caused the plaintiff’s injuries.

Id. at 1125. To satisfy the third element, the plaintiff must 

show that the defendant’s actions were “objectively 

unreasonable,” which requires a showing of “more than 

negligence but less than subjective intent—something akin 

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

at 1071).

In light of our holding in Gordon, it is clear that the 

district court here erred by applying the subjective deliberate

indifference standard to Plaintiff’s Fourteenth Amendment 

claim. Because the parties have briefed Gordon’s objective 

framework on appeal, we apply it here.

B.

Beginning with Nurse de Guzman, the evidence viewed 

in the light most favorable to Plaintiff shows that Deputy 

Chavez told de Guzman that Sandoval was sweating, tired, 

and disoriented. Deputy Chavez insisted that he told de 
22 SANDOVAL V. COUNTY OF SAN DIEGO

Guzman, “There [is] still something going on [with 

Sandoval] so you need to look at him more thoroughly.” 

Despite receiving this information, de Guzman did nothing 

more than administer a duplicative blood sugar test—a test 

de Guzman admitted took only about ten seconds. Without 

conducting any further evaluation, de Guzman then told 

deputies that Sandoval was cleared for booking.

When the deputies left Sandoval in MOC1, de Guzman 

asked them if Sandoval could “go into a sobering tank.” A 

jury could conclude, based on this statement, that de 

Guzman suspected Sandoval was under the influence of 

drugs or alcohol. Yet although de Guzman knew that 

Sandoval remained in MOC1, which was only 20 feet away 

from the nursing station, he failed to check on Sandoval at 

any point during the remaining six hours of his shift. Worse 

still, when his shift was over, de Guzman did not relay any 

information about Sandoval to the nurses who replaced him. 

This left the night shift nurses with no way of knowing that 

Sandoval was being held in MOC1 for medical reasons.

Applying the Gordon framework, a jury could conclude 

that a reasonable nurse who was told that Sandoval was 

shaking, tired, and disoriented—and who was specifically 

directed by a deputy to evaluate Sandoval “more 

thoroughly”—would have understood that Sandoval faced a 

“substantial risk of suffering serious harm.” Gordon, 

888 F.3d at 1125. Sweating and being so disoriented that 

officers observe and comment about it are not everyday 

conditions. A jury could further conclude that de Guzman’s 

actions toward Sandoval—which were limited to 

administering a quick blood test and then ignoring Sandoval 

for the remaining six hours of his shift—were “akin to 

reckless disregard.” Id. De Guzman is therefore not entitled 

to summary judgment on liability.
SANDOVAL V. COUNTY OF SAN DIEGO 23

C.

We reach the same conclusion for the claims against 

Nurses Harris and Llamado.

There can be no debate that a reasonable nurse would 

understand that an individual who is unresponsive and 

seizing faces a substantial risk of suffering serious harm. 

Thus, the question with regard to Nurses Harris and Llamado 

is whether a jury could find that their failure to promptly call 

paramedics was objectively unreasonable.

On summary judgment, we must accept the extensive 

evidence that all reasonable nurses would know that only 

paramedics, not EMTs, had the training necessary to allow 

them to transport patients in Sandoval’s condition. This is 

reflected in the Sheriff’s Department Medical Services 

Division Policy and Procedure Manual, which lists “status 

epilepticus”—i.e. a severe seizure—as a condition that 

“require[s] 911 Paramedic Emergency Response.” And it is

echoed by Deputy Andrade (a trained EMT) and Nurse 

Llamado, who testified that they told Nurse Harris during the 

incident that paramedics were needed because EMTs could 

not transport unresponsive patients. Indeed, Llamado later 

admitted that she should have called paramedics herself 

when Harris refused to do so. This evidence is more than 

sufficient to allow a jury to find that Llamado and Harris’s 

failure to summon paramedics was objectively 

unreasonable. See Gordon, 888 F.3d at 1125.

Arguing that they are entitled to summary judgment, 

Nurses Harris and Llamado point to cases in which we have 

held that “a difference of medical opinion regarding . . .

treatment” does not amount to a constitutional violation. See 

Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); see also

Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004). 
24 SANDOVAL V. COUNTY OF SAN DIEGO

These cases applied the Eighth Amendment subjective 

deliberate indifference standard and therefore are of limited 

relevance to the Fourteenth Amendment claims here. But 

even under the Eighth Amendment standard, a defendant can 

be held liable for actions that were “medically unacceptable 

under the circumstances.” Toguchi, 391 F.3d at 1058 

(internal quotation marks and citation omitted). Here, there 

is ample evidence from which a jury could conclude that 

promptly calling paramedics was the only medically 

acceptable option.8

Finally, to the extent Nurses Harris and Llamado argue 

that Sandoval would not have survived even if they had 

promptly summoned paramedics, Plaintiff’s expert, Dr. 

Michael Falgiani, opined that it was more likely than not that 

Sandoval’s life could have been saved if he “had been taken 

to an emergency department at any time during the time he 

was in Central Jail up to the time that he lost pulses and went 

into cardiac arrest.” And according to Deputy Andrade, 

Sandoval still had a pulse when the paramedics first arrived. 

Crediting Dr. Falgiani’s opinion, and taking Deputy 

Andrade’s account as true, a jury could find that Sandoval 

would not have died but for the delay in calling paramedics.

In sum, viewing the evidence in the light most favorable 

to Plaintiff, there are triable issues of fact on the claims 

against each of the individual nurses. Accordingly, the 

nurses are not entitled to summary judgment on liability.

8 Nurse Harris’s arguments to the contrary rest in large part on her 

assertions that Sandoval “did not have any of the symptoms commonly 

associated with seizures” and that she “could not have anticipated” that 

EMTs would not transport Sandoval. Both of these propositions are 

contradicted by evidence in the record. They therefore serve only to 

support our view that summary judgment was inappropriate.
SANDOVAL V. COUNTY OF SAN DIEGO 25

V.

We now turn to whether the nurses are entitled to 

qualified immunity.

“Qualified immunity balances two important interests—

the need to hold public officials accountable when they 

exercise power irresponsibly and the need to shield officials 

from harassment, distraction, and liability when they 

perform their duties reasonably.” Pearson v. Callahan, 

555 U.S. 223, 231 (2009). In determining whether a state 

official is entitled to qualified immunity in the context of 

summary judgment, we consider (1) whether the evidence 

viewed in the light most favorable to the plaintiff is sufficient 

to show a violation of a constitutional right and (2) whether 

that right was “clearly established at the time of the 

violation.” Horton by Horton v. City of Santa Maria, 

915 F.3d 592, 599 (9th Cir. 2019) (citing Pearson, 555 U.S. 

at 232).

A.

We begin with whether the shift in the legal framework 

governing Plaintiff’s claims—from subjective deliberate 

indifference to objective unreasonableness—has any bearing 

on the qualified immunity analysis. The nurses argue, and 

the dissent agrees, that in determining whether the nurses are 

entitled to qualified immunity, we must apply all elements 

of an inadequate medical care claim exactly as they stood at 

the time of the incident at issue here, including the subjective 

deliberate indifference requirement. But we have already 

rejected this approach in Horton by Horton v. City of Santa 

Maria. 915 F.3d at 599–603. Under Horton, when we 

assess qualified immunity for a claim of inadequate medical 

care of a pre-trial detainee arising out of an incident that took 

place prior to Gordon, we apply the current objective 
26 SANDOVAL V. COUNTY OF SAN DIEGO

deliberate indifference standard to analyze whether there 

was a constitutional violation, id. at 602, and “concentrate 

on the objective aspects of the [pre-Gordon] constitutional 

standard” to evaluate whether the law was clearly 

established, id. at 600.

To fully understand Horton, we must first address Estate 

of Ford v. Ramirez-Palmer, 301 F.3d 1043 (9th Cir. 2002). 

Jeffrey Ford was killed by his cellmate, James Diesso, who 

had a history of violent behavior against other prisoners. Id. 

at 1045–47. Ford’s family and estate brought an Eighth 

Amendment deliberate indifference claim against the 

correctional officers who allowed Diesso to be housed with 

Ford. Id. at 1047–48. The district court concluded that 

genuine issues of material fact existed as to whether the 

officers were aware of Diesso’s history of violence. Id. at 

1048. Because our circuit had “held in Hamilton v. Endell, 

981 F.2d 1062 (9th Cir.1992), that a finding of deliberate 

indifference (or of a triable issue as to it) necessarily 

precludes a finding of qualified immunity,” id. at 1045, the 

district court denied qualified immunity, id. at 1048. On 

appeal, the Ford panel reversed, concluding “that Hamilton, 

which collapse[d] the deliberate indifference part of the 

constitutional inquiry into the qualified immunity inquiry, 

ha[d] been undermined by Saucier [v. Katz, 533 U.S. 194 

(2001), overruled on other grounds by Pearson, 555 U.S. 

223],” id. at 1050, because the “key point” in Saucier “is that 

the qualified immunity inquiry is separate from the 

constitutional inquiry,” id. at 1049.

We further explained that “the qualified immunity 

inquiry ‘has a further dimension.’” Id. (quoting Saucier, 

533 U.S. at 205). That dimension is the clearly established 

law inquiry, which allows “‘all but the plainly incompetent 

or those who knowingly violate the law’ [to] have immunity 
SANDOVAL V. COUNTY OF SAN DIEGO 27

from suit.” Id. (quoting Saucier, 533 U.S. at 202). However, 

we noted that “[w]hile Eighth Amendment claims depend in 

part on a subjective test that does not fit easily with the 

qualified immunity inquiry, there is an objective component 

as well. To violate the Eighth Amendment, the deprivation 

alleged must objectively be sufficiently serious.” Id. If the 

law at the time of an alleged violation did not clearly 

establish that the specific situation faced by an officer was 

sufficiently serious, “a reasonable prison official 

understanding that he cannot recklessly disregard a 

substantial risk of serious harm, could know all of the facts 

yet mistakenly, but reasonably, perceive that the exposure in 

any given situation was not that high.” Id. at 1050. Thus, 

the “dispositive inquiry” in the clearly-established analysis 

is “whether it would be clear to a reasonable officer that his 

conduct was unlawful in the situation he confronted,” based 

on the law at the time. Id. (quoting Saucier, 533 U.S. at 202) 

(emphasis added).

Turning to the Estate of Ford facts, we concluded that “if 

any of the officers knew that Diesso was acting out 

dangerously with cellmates or that he was a threat to Ford 

but housed Ford with him anyway, this would violate the 

Eighth Amendment.” Id. Nonetheless, the officers were 

entitled to qualified immunity, because no law at the time of 

the incident “fleshed out ‘at what point a risk of inmate 

assault becomes sufficiently substantial for Eighth 

Amendment purposes.’” Id. at 1051 (quoting Farmer, 

511 U.S. at 834 n.3). Therefore, “we c[ould not] say that a 

reasonable correctional officer would have clearly 

understood that the risk of serious harm was so high that he 

should not have authorized the double-celling.” Id.

Horton built upon Estate of Ford’s rationale. There, an 

officer left Horton, a pre-trial detainee, alone in his jail cell 
28 SANDOVAL V. COUNTY OF SAN DIEGO

for a prolonged period of time, despite having been warned 

by Horton’s mother in a phone call that he was a suicide risk. 

Horton, 915 F.3d at 597–98. After turning to some 

paperwork, the officer went to check on Horton and found 

him hanging from the cell door, unmoving. Although 

Horton survived, the delay in treatment led to severe and 

permanent brain damage. The law at the time of the incident 

was the pre-Gordon deliberate indifference standard. Id. 

at 599. Relying on Estate of Ford, we observed that 

“deliberate indifference claims [under the pre-Gordon

standard] ‘depend in part on a subjective test that does not 

fit easily with the qualified immunity inquiry,’ which is an 

objective inquiry.” Id. (quoting Estate of Ford, 301 F.3d 

at 1050); see also Harlow v. Fitzgerald, 457 U.S. 800, 817–

18 (1982) (explaining that qualified immunity examines “the 

objective reasonableness of an official’s conduct, as 

measured by reference to clearly established law”). 

Therefore, “even where the clearly established legal standard 

requires [subjective] deliberate indifference, the qualified 

immunity inquiry should concentrate on the objective 

aspects of the constitutional standard.” Horton, 915 F.3d at 

600.

Thus, the officer would enjoy qualified immunity unless 

Horton demonstrated that, “given the available case law at 

the time of his attempted suicide, a reasonable officer, 

knowing what [the officer] knew, would have understood 

that failing to check on Horton immediately after the phone 

call with [Horton’s mother] presented such a substantial risk 

of harm to Horton that the failure to act was 

unconstitutional.” Id. As in Estate of Ford, we concluded 

that the officer was entitled to qualified immunity, because 

“the case law at the time of Horton’s attempted suicide was 

simply too sparse, and involved circumstances too distinct 

from those [of Horton], to establish that a reasonable officer 
SANDOVAL V. COUNTY OF SAN DIEGO 29

would perceive a substantial risk that Horton would 

imminently attempt suicide.” Id. at 601–02.

After determining that the officer was entitled to 

qualified immunity because the law was not clearly 

established that the officer’s failure to immediately act upon 

the suicide warning violated the constitutional right to 

adequate medical care, it was unnecessary for us to reach the 

question whether a constitutional violation had actually 

occurred, and we declined to do so. Id. at 602. However, 

we explicitly recognized that were we required to address 

whether the officer’s conduct violated the constitution, the 

Gordon objective standard would “guide our analysis of 

whether a constitutional violation occurred.” Id. This was 

because in Gordon we had “recently recognized that 

Castro’s objective deliberate indifference standard extends 

to Fourteenth Amendment claims by pretrial detainees for 

violations of the right to adequate medical care.” Id.

The rule of Horton, aside from the fact that it is 

controlling precedent, makes sense. The purpose of 

determining whether there has been a constitutional 

violation has always been to “further the development of 

constitutional precedent.” Pearson, 555 U.S. 237; see also 

Saucier, 533 U.S. at 201. It would run counter to that goal 

to apply the pre-Gordon standard now, because “no purpose 

would be served for future cases from delineating the 

application of that standard to the constitutional merits of 

this case.” Horton, 915 F.3d at 602.9

9 The dissent misreads Horton to conclude that the subjective 

element of the pre-Gordon standard governs the analysis of whether the 

nurses violated Sandoval’s clearly established constitutional right to 

adequate medical care. Dissent at 58–59. In Horton, we simply 
30 SANDOVAL V. COUNTY OF SAN DIEGO

Horton’s recognition that the objective deliberate 

indifference standard applies even when the incident 

occurred pre-Gordon comports with the purpose underlying 

the clearly established law requirement. As the Supreme 

Court has explained, this requirement is designed to “give[] 

government officials breathing room to make reasonable but 

mistaken judgments about open legal questions.” Ashcroft 

v. al-Kidd, 563 U.S. 731, 743 (2011). “[T]he focus is on 

whether the [defendant] had fair notice that her conduct was 

unlawful . . . .” Kisela v. Hughes, 138 S. Ct. 1148, 1152 

(2018) (per curiam) (quoting Brosseau v. Haugen, 543 U.S. 

194, 198 (2004) (per curiam)). Thus, as the Supreme Court 

has often repeated, the defense of qualified immunity 

protects “all but the plainly incompetent or those who 

knowingly violate the law.” Ziglar v. Abbasi, 137 S. Ct. 

1843, 1867 (2017) (quoting Malley v. Briggs, 475 U.S. 335, 

341 (1986)).

Because the premise of qualified immunity is that state 

officials should not be held liable for money damages absent 

fair warning that their actions were unconstitutional, the 

clearly established law standard “requires that the legal 

principle clearly prohibit the [defendant’s] conduct in the 

particular circumstances before him.” District of Columbia 

v. Wesby, 138 S. Ct. 577, 590 (2018). This inquiry is an 

objective one that compares the factual circumstances faced 

by the defendant to the factual circumstances of prior cases 

to determine whether the decisions in the earlier cases would 

observed that there was no purpose in analyzing the issue of whether, 

applying the Gordon objective deliberate indifference standard, there 

was a constitutional violation, as the Horton court had already 

determined that the law as to the need for immediate care of a potential 

suicide victim was not clearly established, and thus the officers were 

entitled to qualified immunity in any event. 915 F.3d at 602.
SANDOVAL V. COUNTY OF SAN DIEGO 31

have made clear to the defendant that his conduct violated 

the law. See e.g., Abbasi, 137 S. Ct. at 1866 (“Whether 

qualified immunity can be invoked turns on the ‘objective 

legal reasonableness’ of the official’s acts.” (citation 

omitted)); Harlow, 457 U.S. at 819 (qualified immunity 

“turn[s] primarily on objective factors”). The focus is on the 

standards governing the defendant’s conduct, not legal 

arcana. See Saucier, 533 U.S. at 202–03 (if “various courts 

have agreed that certain conduct is a constitutional violation 

under facts not distinguishable in a fair way from the facts 

presented in the case at hand, the officer would not be 

entitled to qualified immunity based simply on the argument 

that courts had not agreed on one verbal formulation of the 

controlling standard”).

Consistent with this purpose, the qualified immunity 

analysis remains objective even when the constitutional 

claim at issue involves subjective elements. Crawford-El v. 

Britton, 523 U.S. 574, 588–89 (1998) (“[A]lthough evidence 

of improper motive is irrelevant on the issue of qualified 

immunity, it may be an essential component of the plaintiff’s 

affirmative case.”). Thus, in the Eighth Amendment 

deliberate indifference context, we have recognized that “a 

reasonable prison official understanding that he cannot 

recklessly disregard a substantial risk of serious harm, could 

know all of the facts yet mistakenly, but reasonably, perceive 

that the exposure in any given situation was not that high. In 

these circumstances, he would be entitled to qualified 

immunity.” Estate of Ford, 301 F.3d at 1050. We are not 

aware of a single case in which we have examined the 

defendant’s mental state in assessing the clearly established 

law prong of qualified immunity.

Several other circuits have concluded, as we did in 

Horton, that because the clearly established law prong 
32 SANDOVAL V. COUNTY OF SAN DIEGO

focuses objectively on whether it would be clear that the 

defendant’s conduct violated the Constitution, lack of notice 

regarding the mental state required to establish liability has 

no bearing on the analysis.

Take, for example, the Seventh Circuit’s decision on 

remand from the Supreme Court in Kingsley itself. See 

Kingsley v. Hendrickson, 801 F.3d 828 (7th Cir. 2015) (per 

curiam) (“Kingsley II”). At the trial that took place before 

the case reached the Supreme Court, the district court’s 

instructions on the excessive force claims “suggested the 

jury should weigh [the defendants’] subjective reasons for 

using force and subjective views about the excessiveness of 

the force.” Kingsley, 576 U.S. at 403–04. Under that 

standard, the jury found in the defendants’ favor. Id. at 394. 

The Supreme Court later concluded, however, that the 

standard should have been objective unreasonableness. Id.

at 392. On remand, the Kingsley defendants advanced a 

view of qualified immunity similar to the one the nurses 

offer here. They argued that because the Supreme Court’s 

decision had “altered the substantive law of liability,” their 

liability should not be assessed under the new objective 

unreasonableness standard, which had not been clearly 

established at the time of the incident in the case. Kingsley 

II, 801 F.3d at 831.

In addressing this argument, the Seventh Circuit first 

concluded that prior cases had clearly established that the 

force used by the officers was excessive—i.e., that their 

conduct was unlawful. Id. at 832. It then turned to the 

defendants’ argument that they were nevertheless entitled to 

qualified immunity because the standard had changed from 

subjective awareness to objective unreasonableness during 

the course of the litigation. Id. 832–33. Rejecting this 

position, the Seventh Circuit explained that it “would 
SANDOVAL V. COUNTY OF SAN DIEGO 33

untether the qualified immunity defense from its moorings 

of protecting those acting in reliance on a standard that is 

later determined to be infirm.” Id. at 832. Reliance interests 

were not implicated there, it said, because before and after 

the Supreme Court’s decision, “the standards for the amount 

of force that c[ould] be permissibly employed remain[ed] the 

same.” Id. The Seventh Circuit concluded that to decide 

otherwise would require it “to accept the dubious proposition 

that, at the time the officers acted, they were on notice only 

that they could not have a reckless or malicious intent and 

that, as long as they acted without such an intent, they could 

apply any degree of force they chose.” Id. at 833. It declined 

to do so. Id.

Like the Seventh Circuit, the Sixth Circuit has rejected 

the argument that defendants facing claims of excessive 

force based on pre-Kingsley conduct are entitled to qualified 

immunity simply because it would not have been clear at the 

time of their unconstitutional conduct that any claims against 

them would be governed by an objective standard. Hopper 

v. Plummer, 887 F.3d 744, 755–56 (6th Cir. 2018). As the 

court there explained, “a defendant is not entitled to qualified 

immunity simply because the courts have not agreed upon 

the precise formulation of the applicable standard. Rather, 

the relevant question under the clearly established prong is 

whether defendants had notice that their conduct was 

unlawful in the situation they confronted.” Id. (emphasis 

added, internal citations omitted, and cleaned up). The First 

and Fifth Circuits have reached similar conclusions. 

Miranda-Rivera v. Toledo-Davila, 813 F.3d 64, 72–73 (1st 

Cir. 2016) (Ninth Circuit Judge Hawkins, sitting by 

designation) (holding that despite uncertainty about the 

governing legal standard, the defendants were not entitled to 

qualified immunity because “a reasonable officer would 

have known that using force in the way that the officers here 
34 SANDOVAL V. COUNTY OF SAN DIEGO

appear to have done in the particular factual circumstances 

that they encountered violated [the plaintiff’s] constitutional 

rights”); Dyer v. Houston, 964 F.3d 374, 384 (5th Cir. 2020) 

(concluding that confusion in the case law about whether 

subjective intent was required to prove an inadequate 

medical care claim did not mean the defendants were per se 

entitled to qualified immunity, and that “the district court 

was still required to analyze whether the [defendants’] 

alleged conduct contravened clearly established law”).

Rather than sticking to our settled approach, the dissent 

would, for the first time, drag a subjective element into the 

question of whether a defendant violated clearly established 

law. For example, the dissent concludes Nurse de Guzman 

is entitled to qualified immunity—regardless of whether it 

would have been clear to every reasonable nurse that his 

conduct was unlawful—because there is, supposedly, 

insufficient evidence that de Guzman subjectively 

understood that Sandoval faced a serious medical need.10 

Dissent at 65–68.

This radical reimagination of qualified immunity would 

produce results directly contrary to the purposes served by 

the doctrine—giving “government officials breathing room 

to make reasonable but mistaken judgments about open legal 

questions,” al-Kidd, 563 U.S. at 743, while at the same time 

ensuring that a plaintiff can recover damages from a 

defendant who acts so unreasonably in light of established 

case law that he is appropriately described as “plainly 

incompetent,” Abbasi, 137 S. Ct. at 1867. Consider how the 

dissent’s approach would play out in practice. Here, there is 

10 As discussed below, infra note 16, this conclusion is incorrect 

even on its own terms, viewing the facts in the light most favorable to 

plaintiff, as we must on summary judgment.
SANDOVAL V. COUNTY OF SAN DIEGO 35

no dispute that the objective unreasonableness standard from 

Gordon governs the merits of Plaintiff’s claims. Thus, had 

the nurses not raised a qualified immunity defense, 

presumably even the dissent would agree that objective 

unreasonableness alone would be sufficient to establish their 

liability.11 Yet the dissent would use qualified immunity, a 

defense designed “to shield officials . . . when they perform 

their duties reasonably,” Pearson, 555 U.S. at 231 (emphasis 

added), to require Plaintiff to satisfy a standard under which 

the nurses would be protected from liability—no matter how 

unreasonable their conduct—as long as they did not

subjectively appreciate that their actions put Sandoval at a 

substantial risk of suffering serious harm. We cannot accept 

this extraordinary proposition, which would transform a 

defense that protects “all but the plainly incompetent,” into 

one that provides immunity to defendants precisely because

they were so incompetent that they did not understand the 

patent unreasonableness of their conduct as already 

established by law.12 See Abbasi, 137 S. Ct. at 1867 

11 Or, perhaps not. It is not clear the dissent appreciates that the 

affirmative defense of qualified immunity is distinct from the merits of 

the plaintiff’s constitutional claim. See Estate of Ford, 301 F.3d at 1049. 

While the plaintiff’s claim may have subjective elements, as inadequate 

medical care claims did before Gordon, the clearly established law 

inquiry is always an objective one that looks to whether it would have 

been clear to a reasonable person in the defendant’s position that his 

conduct was unlawful. Horton, 915 F.3d at 600. Here, the subjective 

aspect of Plaintiff’s claim for relief changed during the course of this 

litigation. The objective nature of the qualified immunity defense did 

not.

12 As support for its position, the dissent cites only our unpublished 

memorandum disposition in Acosta v. Hill, 244 F. App’x 792 (9th Cir. 

2007). Dissent at 54. Putting aside that Acosta is not binding precedent, 

it also has nothing to do with the issues in this case. Acosta involved a 

change in the law governing what constituted “deadly force.” Id. at 794; 
36 SANDOVAL V. COUNTY OF SAN DIEGO

(explaining that a defendant can be either plainly 

incompetent or entitled to qualified immunity, but not, as the 

dissent would have it, both at the same time).

The dissent’s position might be justified if we could 

somehow conclude that the nurses relied on the subjective 

deliberate indifference standard in determining how to treat 

Sandoval. But to speak the thought is to recognize that it 

makes little sense. As the clearly established law prong of 

qualified immunity is typically applied, we impute to the 

defendant knowledge of the relevant case law governing his 

conduct. Thus, if there is binding precedent holding that a 

police officer may not use deadly force against an unarmed 

fleeing suspect,13 future officers are expected to tailor their 

conduct accordingly. Those who fail to do so are not entitled 

see Smith v. City of Hemet, 394 F.3d 689, 705–07 (9th Cir. 2005) (en 

banc). Given constitutional restrictions on when a police officer may use 

deadly force, the change in the definition of deadly force necessarily 

affected when officers could justifiably use certain types of force. In 

other words, as the decision itself makes clear, Acosta involved a change 

in the law governing the defendants’ conduct. 244 F. App’x at 794 

(“Under qualified immunity, the officers didn’t have ‘fair warning’ that 

their actions may have been unconstitutional.”). Acosta therefore stands 

for nothing more than the well-settled rule that clearly established law 

must provide the defendant with notice that his conduct was unlawful in 

the situation he confronted—exactly the standard we apply in this case. 

It provides no support for the dissent’s far more reaching assertion: even 

if prior case law made clear that the nurses’ response to Sandoval’s 

condition was constitutionally inadequate—even if there were a 

precedential case finding a constitutional violation on exactly the same 

facts—the nurses would still be entitled to qualified immunity as long as 

they did not subjectively understand that their actions were unlawful.

13 See Tennessee v. Garner, 471 U.S. 1 (1985).
SANDOVAL V. COUNTY OF SAN DIEGO 37

to qualified immunity.14 They have received their “fair 

notice” and squandered it. Hughes, 138 S. Ct. at 1152.

But how would an official who believes any claims 

against him would be tried under a subjective deliberate 

indifference standard act any differently than one who 

knows that an objective unreasonableness standard applies? 

It is not as if an individual can consciously control the extent 

to which he is subjectively aware of the wrongfulness of his 

conduct. It therefore seems likely that officials responsible 

for providing medical care to inmates will act in exactly the 

same manner after Gordon as they did before. They will 

provide the treatment they think necessary under the 

circumstances, mindful of what our cases dictate is 

appropriate conduct in different factual scenarios, and, in the 

event they subjectively believe the treatment they are 

providing is inadequate, they will, we would hope, adjust 

their conduct accordingly.

It is true that after Gordon, state officials may now be 

held liable for providing inadequate medical care even when 

they were not subjectively aware of the unreasonableness of 

their conduct. But as the Seventh Circuit has explained, this 

change could affect an official’s on-the-ground actions only 

if we were to assume that before Gordon, officials acted in 

reliance on the belief that as long as they were not 

subjectively aware that their conduct created a substantial 

risk of serious harm to an inmate, they could provide any 

level of medical care they so chose, no matter how obviously 

deficient. Kingsley II, 801 F.3d at 832–33. Like the Sixth 

14 E.g., A.K.H. ex rel. Landeros v. City of Tustin, 837 F.3d 1005, 

1013 (9th Cir. 2016).
38 SANDOVAL V. COUNTY OF SAN DIEGO

and Seventh Circuits, we refuse to accept this “dubious 

proposition.” Id.; Hopper, 887 F.3d at 755.

15

In sum, as we previously concluded in Horton, when the 

governing law has changed since the time of the incident, we 

apply the current law to determine if a constitutional 

violation took place under the first prong of qualified 

immunity analysis, and the second prong remains what it has 

always been: an objective examination of whether 

established case law would make clear to every reasonable 

official that the defendant’s conduct was unlawful in the 

situation he confronted. Horton, 915 F.3d at 600–602. We 

will approach our analysis accordingly.

We have already determined that there is a triable issue 

of fact whether the nurses committed constitutional 

violations under the Gordon standard, which governs the 

violation prong of our qualified immunity analysis. See id.

at 602. We turn now to whether the right was clearly 

established at the time.

15 We recognize that three circuits appear to have concluded after 

Kingsley that they were required to apply a subjective framework for 

purposes of qualified immunity, even though it had since been replaced 

by an objective standard. Quintana v. Santa Fe Cnty. Bd. of 

Commissioners, 973 F.3d 1022 (10th Cir. 2020); Kedra v. Schroeter, 

876 F.3d 424, 440 (3d Cir. 2017); Hall v. Ramsey County, 801 F.3d 912, 

917 n.3 (8th Cir. 2015). But in their cursory discussions of the issue, 

none of these courts appear to have contemplated that the clearly 

established law analysis may apply differently when a post-incident 

change in law concerns the mental state required to prove a claim rather 

than the lawfulness of the defendants’ conduct. Nor do they explain why 

applying a since-abrogated subjective standard would be consistent with 

the purpose of qualified immunity: providing defendants with “fair 

notice that [their] conduct was unlawful.” Hughes, 138 S. Ct. at 1152. 

We are therefore not persuaded by their analyses.
SANDOVAL V. COUNTY OF SAN DIEGO 39

B.

Applying Horton’s approach here, to defeat qualified 

immunity for the Officers, Plaintiff must show that, given 

the available case law at the time, a reasonable nurse, 

knowing what Llamado, Harris, and de Guzman knew, 

would have understood that failing to call paramedics 

(Llamdo and Harris), or failing to check on Sandoval for 

hours and failing to pass on information about his condition 

(de Guzman), “presented such a substantial risk of harm to 

[Sandoval] that the failure to act was unconstitutional.” 

Horton, 915 F.3d at 600. The nurses’ actual subjective 

appreciation of the risk is not an element of the establishedlaw inquiry. We conclude that Sandoval has demonstrated 

that the available law was clearly established as to the 

unreasonableness of the nurses’ conduct.

Beginning with Nurses Harris and Llamado, it has long 

been established that “failing to provide . . . life-saving 

measures to an inmate in obvious need can provide the basis 

for liability under § 1983 for deliberate indifference.” 

Lemire v. Cal. Dep’t of Corr. & Rehab., 726 F.3d 1062, 1082 

(9th Cir. 2013). In Lemire, we held that officers who 

discovered an inmate unconscious after a suicide attempt 

could be liable when they failed to immediately begin 

performing CPR or any other “life saving action[s]” on the 

inmate and instead waited several minutes for medical 

professionals to arrive. Id. at 1083.

The case for deliberate indifference is at least as strong 

here. Viewing the evidence in the light most favorable to 

Plaintiff, Nurses Llamado and Harris, trained medical 

professionals, knew that Sandoval was unresponsive and 

seizing but failed to promptly summon paramedics. Calling 

paramedics was “[s]tandard nursing protocol” for prolonged 

seizures, and every reasonable nurse would have understood 
40 SANDOVAL V. COUNTY OF SAN DIEGO

that paramedics were the only individuals capable of 

transporting Sandoval to the hospital. Because every 

reasonable nurse, knowing what Llamado and Harris knew, 

would have understood that not calling paramedics 

amounted to an unconstitutional failure to provide “lifesaving measures to an inmate in obvious need,” id. at 1082, 

Harris and Llamado are not entitled to qualified immunity, 

see Horton, 915 F.3d at 600.

We reach the same conclusion with regard to Nurse de 

Guzman. As we have previously explained, a reasonable 

nurse in de Guzman’s position—i.e., a nurse who was told 

that Sandoval was sweating, tired, and disoriented, and that 

“there was still something going on” that needed to be 

“look[ed] at . . . more thoroughly”—would understand that 

Sandoval faced a substantial risk of serious harm. The 

question thus becomes whether every reasonable nurse 

would understand, in light of established case law, that de 

Guzman violated Sandoval’s constitutional right to adequate 

medical care when he responded by merely performing a 10-

second blood sugar test—a test performed earlier to no 

avail—and then walking away, leaving Sandoval unattended 

for six hours despite the fact that he was only 20 feet from 

de Guzman’s nursing station. In light of our precedent, all 

reasonable nurses would understand that de Guzman’s 

minimal—almost non-existent—course of treatment 

violated the Constitution.

Our cases make clear that prison officials violate the 

Constitution when they “deny, delay or intentionally 

interfere” with needed medical treatment. Jett v. Penner, 

439 F.3d 1091, 1096 (9th Cir. 2006) (citation omitted). The 

same is true when prison officials choose a course of 

treatment that is “medically unacceptable under the 

circumstances.” Snow v. McDaniel, 681 F.3d 978, 988 (9th 
SANDOVAL V. COUNTY OF SAN DIEGO 41

Cir. 2012) (quoting Jackson v. McIntosh, 90 F.3d 330, 332 

(9th Cir. 1996)), overruled on other grounds by Peralta, 

744 F.3d 1076.

We have applied this standard on several occasions. In 

Clement v. Gomez, we held that correctional officers could 

be liable for failing to provide constitutionally adequate 

medical care when they knew that inmates had been exposed 

to pepper spray but waited four hours before allowing them 

to leave their cells to shower. 298 F.3d 898, 902, 904–05 

(9th Cir. 2002). Similarly, in Jett v. Penner, we held that a 

doctor could be held liable for a constitutional violation 

when he knew that an inmate’s thumb was fractured but 

failed to ensure that the fracture was set and cast. 439 F.3d 

at 1097–98; see also Hunt v. Dental Dep’t, 865 F.2d 198, 

200 (9th Cir. 1989) (plaintiff could establish a constitutional 

violation when prison officials were aware that he was 

suffering from bleeding gums and broken teeth as a result of 

broken dentures but “failed to take any action to relieve his 

pain or to prescribe a soft food diet until new dentures could 

be fitted”). The rule reflected in these decisions is clear: a 

prison official who is aware that an inmate is suffering from 

a serious acute medical condition violates the Constitution 

when he stands idly by rather than responding with 

reasonable diligence to treat the condition.

To be sure, we have never before addressed the specific 

factual circumstances here, where a nurse is told that a 

patient is sweating, disoriented, and in need of a more 

thorough look but does nothing more than perform a quick 

10-second blood test. But de Guzman is not entitled to 

qualified immunity simply because “the very action in 

question has [not] previously been held unlawful.” Hope v. 

Pelzer, 536 U.S. 730, 739 (2002) (quoting Anderson v. 

Creighton, 483 U.S. 635, 640 (1987)). State “‘[o]fficials can 
42 SANDOVAL V. COUNTY OF SAN DIEGO

still be on notice that their conduct violates established law 

even in novel factual circumstances’—i.e., even without a 

prior case that had ‘fundamentally similar’ or ‘materially 

similar’ facts.” Wilk, 956 F.3d at 1148 (quoting Hope, 

536 U.S. at 741); cf. Castro, 833 F.3d at 1067 (“The 

Supreme Court need not catalogue every way in which one 

inmate can harm another for us to conclude that a reasonable 

official would understand that his actions violated Castro’s 

right.”).

If it is a constitutional violation to delay treatment for

four hours for inmates exposed to pepper spray, Clement, 

298 F.3d at 905, or to fail to promptly set a fractured thumb, 

Jett, 439 F.3d at 1097–98—neither of which are potentially 

life-threatening conditions—the same must be true for 

failing to provide any meaningful treatment to an inmate 

who was sweating and appeared so tired and disoriented that 

a deputy urged that he be re-evaluated. Accordingly, every 

reasonable nurse in Nurse de Guzman’s position would have 

understood that his treatment of Sandoval, or lack thereof, 

was constitutionally inadequate. 16

16 Even under the dissent’s subjective standard, Nurse de Guzman 

would not be entitled to qualified immunity because a jury could 

conclude from his suggestion that Sandoval be moved to a sobering tank, 

where individuals under the influence of drugs or alcohol are placed for 

observation by medical staff, that de Guzman himself subjectively

understood that Sandoval had a serious condition requiring medical 

treatment. The dissent reaches a contrary conclusion only by adopting a 

view of the evidence that not even Nurse de Guzman has advanced. It 

interprets de Guzman’s recommendation that Sandoval be moved to a 

sobering tank to negate any inference that de Guzman understood the 

seriousness of Sandoval’s condition, ostensibly because de Guzman 

knew that inmates in a sobering cell would be checked only every four 

hours. Dissent at 67–68. Perhaps a jury could come to this conclusion, 

if de Guzman were to actually argue it. But it is not the only reasonable 
SANDOVAL V. COUNTY OF SAN DIEGO 43

We emphasize that this is not a case where a nurse 

mistakenly misdiagnosed a patient after reasonably 

attempting to ascertain the cause of unexplained symptoms. 

Instead, viewing the evidence in the light most favorable to 

Plaintiff, Nurse de Guzman made essentially no effort to 

determine why Sandoval was suffering the symptoms 

reported by Deputy Chavez, nor did he attempt to treat those 

symptoms. He then abandoned Sandoval for the remaining 

six hours of his shift and failed to pass along any information 

to the nurses who relieved him. On these facts, de Guzman 

is not entitled to qualified immunity. Of course, it remains 

to be determined at trial whether the nurses violated 

Sandoval’s clearly established rights. Thus, summary 

judgment on qualified immunity should not have been 

awarded to defendant nurses.

VI.

Having determined that the individual nurse defendants 

are not entitled to summary judgment, we now turn to the 

claims against the County. Under Monell v. Department of 

Social Services, the County can be liable under § 1983 if its 

“policy or custom” caused Sandoval’s injuries through 

deliberate indifference to his constitutional right to adequate 

inference that could be drawn from de Guzman’s sobering tank 

comment. For example, a jury could find that de Guzman attempted to 

send Sandoval to a sobering cell, where another nurse would be 

responsible for his care, precisely because he understood that Sandoval 

required treatment and did not want to deal with the hassle of providing 

it. Because de Guzman’s statement is susceptible of interpretations 

under which he would not be entitled to qualified immunity, it cannot be 

used to justify a grant of summary judgment. Tuumalemalo, 946 F.3d 

at 478.
44 SANDOVAL V. COUNTY OF SAN DIEGO

medical care. 436 U.S. 658, 694 (1978); see also Castro, 

833 F.3d at 1073.

The practice or custom at issue here is the County’s use 

of MOC1 as a “mixed use” cell—sometimes used to hold 

inmates requiring medical care and other times used as a 

general holding cell—without adequate safeguards in place 

to ensure that jail staff were made aware when an individual 

was placed in MOC1 for medical, rather than correctional, 

reasons. According to Nurse Llamado, unlike with other 

medical cells at the jail (so-called sobering or safety cells), 

there was “no standing obligation . . . for a nurse to routinely 

monitor somebody in [MOC1].” Instead, a nurse would 

attend to MOC1 only when told by a deputy or another nurse 

that an inmate there required treatment.

Crucially, this system depended entirely on verbal 

communication. Unless directly told otherwise, nurses 

assumed that individuals in MOC1 were being held there for 

non-medical purposes. And even when deputies verbally 

passed off responsibility for the cell to one shift of nurses, 

the relief shift had no way of knowing whether to monitor 

MOC1 unless specifically told to do so by the nurses they 

were replacing. Unlike with the jail’s sobering and safety 

cells, there were no written nursing logs for MOC1. And 

though the nursing unit had a whiteboard listing the names 

of inmates in the sobering and safety cells, the board had no 

space to list inmates being held in MOC1. These practices 

created a substantial risk of turning MOC1 into a veritable 

no man’s land, where deputies believed the cell was being 

monitored by nurses, and nurses believed it was being 

monitored by deputies.

Nurses at the jail explained that the informal verbal passoff system for MOC1 created confusion. The facts of this 

case bear that out. The deputies believed that Nurse de 
SANDOVAL V. COUNTY OF SAN DIEGO 45

Guzman knew that Sandoval was in MOC1 because he 

required monitoring by the medical staff. In contrast, Nurse 

de Guzman was adamant that because he had ostensibly 

cleared Sandoval for booking, Sandoval must have been left 

in MOC1 for correctional purposes. As a result, de Guzman 

did not inform the night shift nurses that Sandoval required 

care. This evidence is sufficient to allow a jury to find that 

the County had an established practice of using MOC1 as a 

mixed-use cell without the safeguards necessary to ensure 

that the jail’s medical staff knew when an inmate held there 

required medical treatment or observation.

The next question is whether there is a “direct causal 

link” between the County’s practice with regard to MOC1 

and Sandoval’s injuries. Castro, 833 F.3d at 1075 (quoting 

City of Canton v. Harris, 489 U.S. 378, 385 (1989)). As 

Nurses de Guzman and Llamado acknowledged, inmates in 

other medical cells were checked at least once every four 

hours. A jury could infer that Sandoval would have received 

similar monitoring had the County put in place measures to 

ensure the nursing staff knew when an inmate was placed in 

MOC1 for medical reasons. Moreover, had the nursing staff 

maintained written logs for patients held in MOC1, as they 

did for other medical cells, the incoming night shift nurses 

might have learned of Sandoval’s condition from those logs 

and monitored him more closely. A jury could find that had 

Sandoval been monitored by the nursing staff—instead of 

being abandoned for nearly eight hours—his deteriorating 

medical condition would have been discovered earlier. And 

Plaintiff’s expert, Dr. Falgiani, opined that Sandoval likely 

would have survived the overdose if he had been taken to the 

hospital at any time before he went into cardiac arrest. This 

is sufficient to create a genuine dispute of material fact as to 

whether the County’s practices caused Sandoval’s death.
46 SANDOVAL V. COUNTY OF SAN DIEGO

Finally, we address whether the evidence would support 

a finding of objective deliberate indifference on the part of 

the County. Id. at 1076. This requires a showing that the 

facts available to the County put it on “actual or constructive 

notice” that its practices with regard to MOC1 were 

“substantially certain to result in the violation of the 

constitutional rights of [its] citizens.”17 Id. (emphasis 

removed) (quoting Harris, 489 U.S. at 396 (O’Connor, J., 

concurring)).

In granting summary judgment to the County, the district 

court concluded that Plaintiff could not establish deliberate 

indifference because there was no evidence that the failure 

to implement adequate communication safeguards had 

caused “prior injury or death to MOC1 inhabitants.” The 

County does not defend this rationale on appeal, and for 

good reason. To establish her claim, Plaintiff must show that 

the County had actual or constructive knowledge that its 

practices were substantially certain to cause a constitutional 

17 This deliberate indifference standard does not apply when a 

Monell defendant’s policies, customs, or practices directly require 

unconstitutional conduct—for example, “a city’s policy of 

discriminating against pregnant women in violation of the Fourteenth 

Amendment.” Gibson, 290 F.3d at 1185–86, overruled on other grounds 

by Castro, 833 F.3d 1060. Plaintiff suggests that the County had a direct 

policy requiring the medical staff to “ignore the inmates in [MOC1] 

unless told otherwise.” But there is no evidence that the County wanted

nurses to ignore all inmates in MOC1, even those suffering from medical 

problems. To the contrary, the evidence shows that nurses understood 

they were supposed to monitor MOC1 when it was being used to hold 

inmates requiring medical care. That Sandoval was ignored for almost 

eight hours was not the purpose of the County’s policies but rather a 

tragic consequence of its failure to implement measures necessary to 

ensure the nursing staff knew when an individual was being held in 

MOC1 for medical reasons. Deliberate indifference is therefore the 

appropriate standard.
SANDOVAL V. COUNTY OF SAN DIEGO 47

violation. Id. This standard does not require proof of a prior 

injury. A constitutional injury can be substantially certain to 

follow from a practice even if an injury has yet to occur. 

Otherwise, every Monell defendant would get “one free . . .

pass” for policies or practices that are substantially certain to 

violate an individual’s constitutional rights. Woodward v. 

Corr. Med. Servs. of Ill., Inc., 368 F.3d 917, 929 (7th Cir. 

2004) (cleaned up).

Under the proper standard, it is a close question whether 

Plaintiff has mustered sufficient evidence to create a triable 

issue of fact on whether the County was deliberately 

indifferent. There is certainly enough evidence to support a 

finding of negligence. But to establish deliberate 

indifference, Plaintiff must prove that the County had actual 

or constructive knowledge that the failure to implement 

protocols necessary to ensure that nurses knew when inmates 

in MOC1 required medical care was “substantially certain” 

to result in inmates failing to receive the proper treatment, 

creating a likelihood of serious injury or death. Castro, 

833 F.3d at 1076.

Ultimately, we conclude that summary judgment should 

not have been granted on the County’s liability under 

Monell. Plaintiff has put forward sufficient circumstantial 

evidence of the County’s knowledge such that a reasonable 

jury could find deliberate indifference.

To begin, a jury could infer from the more rigorous 

policies the County put in place for the sobering and safety 

cells that it was aware of the importance of ensuring that the 

nursing staff knew which inmates required medical 

treatment or observation. For the sobering and safety cells, 

the medical staff listed the name and location of each patient 

on a whiteboard. Specific nurses were assigned to monitor 

each cell. And nurses filled out written logs with their 
48 SANDOVAL V. COUNTY OF SAN DIEGO

observations of the inmates held in those cells. A reasonable 

jury could conclude that the County implemented these 

practices because it understood they were necessary to 

ensure that inmates requiring medical care would not fall 

through the cracks. Cf. id. at 1077 (explaining that a 

county’s knowledge can be inferred from its ordinances).

This conclusion is only reinforced by the fact that, after 

Sandoval’s death, the County put in place a new practice for 

MOC1. Now, when a deputy places an inmate requiring 

medical care in MOC1, he must place a magnetic placard on 

the door indicating that the inmate is there for medical 

reasons. A jury could view this as an acknowledgement by 

the County that its prior practices—which relied exclusively 

on verbal communication—were insufficient.18 And, as 

explained, it could be reasonably inferred from the fact that 

the County had implemented more extensive tracking 

measures for the sobering and safety cells that it knew at the 

time that relying on verbal communications alone would 

create a substantial risk that an inmate’s serious medical 

needs could go unaddressed.

That is not to say that a jury is required to find deliberate 

indifference on the record before us. Perhaps the County 

could show at trial that there were good reasons for treating 

MOC1 differently from the other medical cells, and that 

despite the policies put in place for the sobering and safety 

cells, it was not aware that similar practices were required to 

18 To the extent the dissent suggests that evidence of the County’s 

change in policy would be inadmissible as a subsequent remedial 

measure under Federal Rule of Evidence 407, Dissent at 73, the County 

forfeited this objection by failing to raise it in the district court. Skillsky 

v. Lucky Stores, Inc., 893 F.2d 1088, 1094 (9th Cir. 1990) (“[F]ailure to 

object to allegedly defective evidence waives the objection for purposes 

of summary judgment[.]”).
SANDOVAL V. COUNTY OF SAN DIEGO 49

provide adequate medical care in MOC1. But viewing the 

evidence in the light most favorable to Plaintiff, we conclude 

that there is a triable issue of fact as to the County’s liability 

under Monell.

* * *

Viewing the evidence in Plaintiff’s favor, a jury could 

conclude that Ronnie Sandoval would not have died but for 

the defendants’ unreasonable response to his obvious signs 

of medical distress. The district court therefore erred in 

granting summary judgment. We reverse and remand for 

further proceedings consistent with this opinion.

REVERSED.

COLLINS, Circuit Judge, concurring in the judgment in part 

and dissenting in part:

Plaintiff Ana Sandoval (“Plaintiff”) brought this action 

under 42 U.S.C. § 1983 as the successor in interest to Ronnie 

Sandoval (“Sandoval”), who tragically died in custody at the 

San Diego Central Jail.1 During a probation search of his 

residence, Sandoval surreptitiously swallowed some 

methamphetamine in an apparent effort to avoid its 

detection. After he was taken into custody for possession of 

drugs and drug paraphernalia that were nonetheless found 

during the search, the medical staff at the jail subsequently 

1 Ana Sandoval and her children also assert additional state-law 

claims on their own behalf, but the district court remanded those claims 

to state court after dismissing the § 1983 claims. Ana Sandoval, as 

successor in interest to Ronnie Sandoval, is the sole plaintiff in the 

§ 1983 claims asserted in the operative complaint.
50 SANDOVAL V. COUNTY OF SAN DIEGO

failed to detect that Sandoval had overdosed and that he was 

lying when he said that he was not under the influence. 

Compounding these problems, when Sandoval ultimately 

collapsed in his cell, there was a delay in summoning the 

paramedics needed to address his dire condition. Alleging 

that the jail employees violated Sandoval’s constitutional 

rights through deliberate indifference to his medical needs, 

Plaintiff asserted claims under § 1983 against three of the 

jail’s nurses and against the county as operator of the jail. 

The district court subsequently granted summary judgment 

to all Defendants, and Plaintiff appeals the dismissal of the 

§ 1983 claims.

I agree with the majority’s ultimate conclusion that 

Nurses Dana Harris and Maria Llamado were not entitled to 

summary judgment, but I would affirm the district court’s 

grant of summary judgment to Nurse Romeo de Guzman and 

to the County of San Diego. Because my reasoning differs 

from the majority’s even with respect to Harris and Llamado, 

I concur only in the judgment in part, and I otherwise 

respectfully dissent.

I

Before turning to the merits, I must first briefly respond 

to the majority’s unsolicited essay on the district court’s 

evidentiary rulings. The district court held that, by failing to 

respond to Defendants’ evidentiary objections to the 

evidence Plaintiff had submitted in opposition to 

Defendants’ summary judgment motion, Plaintiff forfeited 

any challenge to those evidentiary objections, which the 

court therefore sustained. In her opening brief in this court, 

Plaintiff challenged the district court’s evidentiary ruling 

with respect to only one item of evidence that she had 

submitted—viz., the report prepared by one of the police 

officers in this matter. As I explain below, I agree with 
SANDOVAL V. COUNTY OF SAN DIEGO 51

Plaintiff that this document was admissible and that the 

district court erred in concluding otherwise. See infra at 65

n.4. That observation suffices to dispose of the evidentiary 

issues raised in the parties’ briefs in this court, and we should 

have stopped there.

Nonetheless, the majority gratuitously proceeds to 

engage in a lengthy lecture about the perceived inadequacy 

of the Defendants’ evidentiary objections below and of the 

district court’s ruling on them. See Maj. Opin. at 12–16. But 

given that no party asked us in the merits briefs to review 

any other evidentiary issue, the majority should not have

raised this panoply of additional issues sua sponte. See

United States v. Sineneng-Smith, 140 S. Ct. 1575, 1579 

(2020) (“In our adversarial system of adjudication, we 

follow the principle of party presentation,” under which 

“‘we rely on the parties to frame the issues for decision and 

assign to courts the role of neutral arbiter of matters the 

parties present.’” (citation omitted)); Independent Towers of 

Washington v. Washington, 350 F.3d 925, 929 (9th Cir. 

2003) (“Our circuit has repeatedly admonished that we 

cannot ‘manufacture arguments for an appellant’ and 

therefore we will not consider any claims that were not 

actually argued in appellant’s opening brief.” (citation 

omitted)).

II

The district court granted summary judgment to the three 

individual Defendants (the “Nurses”), concluding that 

Plaintiff had failed to establish the requisite deliberate 

indifference and that, in any event, the Nurses were entitled 

to qualified immunity. In reversing the judgment as to the 

Nurses, the majority applies the wrong legal standards to the 

qualified immunity inquiry and, as to Nurse de Guzman, 

reaches the wrong result.
52 SANDOVAL V. COUNTY OF SAN DIEGO

A

In opposing the Nurses’ claim of qualified immunity, 

Plaintiff had to show that the Nurses violated clearly 

established law as it stood in 2014, when they acted. 

Because the then-controlling deliberate-indifference liability 

standards included a subjective element, Plaintiff therefore 

had to make a showing of subjective deliberate indifference 

to defeat qualified immunity, and she had to do so even

though that subjective element of the test for liability has 

since been overruled. The majority errs—and expressly 

creates a circuit split—in reaching the oxymoronic 

conclusion that a county employee who did not even violate 

the law at the time he or she acted can nonetheless be said to 

have violated clearly established law at that time.

1

Jail employees are entitled to qualified immunity “unless 

(1) they violated a federal statutory or constitutional right, 

and (2) the unlawfulness of their conduct was ‘clearly 

established at the time.’” District of Columbia v. Wesby, 

138 S. Ct. 577, 589 (2018) (quoting Reichle v. Howards, 

566 U.S. 658, 664 (2012)). Whether an employee’s conduct 

violated clearly established law must be “‘judged against the 

backdrop of the law at the time of the conduct.’” Kisela v. 

Hughes, 138 S. Ct. 1148, 1152 (2018) (quoting Brosseau v. 

Haugen, 543 U.S. 194, 198 (2004)). Changes in the 

applicable law that occur subsequent to the employee’s 

actions are “therefore ‘of no use in the clearly established 

inquiry.’” Id. at 1154 (quoting Brosseau, 543 U.S. at 200 

n.4). Because the conduct here occurred in 2014, “the law 

at that time must be our guide.” Robinson v. Solano Cnty., 

278 F.3d 1007, 1015 (9th Cir. 2002) (en banc).
SANDOVAL V. COUNTY OF SAN DIEGO 53

Current Ninth Circuit law holds that, in light of the 

Supreme Court’s decision in Kingsley v. Hendrickson, 

576 U.S. 389 (2015), a pretrial detainee’s claim of deliberate 

indifference to serious medical needs “must be evaluated 

under an objective deliberate indifference standard,” Gordon 

v. County of Orange, 888 F.3d 1118, 1124–25 (9th Cir. 

2018) (emphasis added). But at the time the Nurses acted in 

this case—i.e., 2014, before the decision in Kingsley—the 

then-established Ninth Circuit law provided that the same 

“deliberate indifference” standard that applies to Eighth 

Amendment medical care claims asserted by convicted 

prisoners also “applie[d] to claims that correction facility 

officials failed to address the medical needs of pretrial 

detainees” in violation of the Fourteenth Amendment. 

Clouthier v. County of Contra Costa, 591 F.3d 1232, 1242 

(9th Cir. 2010), overruled by Castro v. County of Los 

Angeles, 833 F.3d 1060 (9th Cir. 2016) (en banc).2 Under 

this standard, a detainee had to show both a “serious medical 

need” and the defendant’s “deliberate indifference” to that 

need. Conn v. City of Reno, 591 F.3d 1081, 1095–96 (9th 

Cir. 2010), vacated, 563 U.S. 915 (2011), reinstated in 

relevant part, 658 F.3d 897 (9th Cir. 2011). To establish the 

requisite deliberate indifference, a detainee had to “show 

2 In Castro, we expressly “overrule[d] Clouthier to the extent that it 

identified a single deliberate indifference standard for all § 1983 claims 

and to the extent that it required a plaintiff to prove an individual 

defendant’s subjective intent to punish in the context of a pretrial 

detainee’s failure-to-protect claim.” 833 F.3d at 1070 (emphasis added). 

We instead held that a pretrial detainee’s “due process claim for failure 

to protect” is governed by a purely objective test. Id. at 1071. In Gordon,

we extended Castro’s reasoning to “claims for violations of the right to 

adequate medical care ‘brought by pretrial detainees against individual 

defendants under the Fourteenth Amendment,’” and held that such 

claims “must be evaluated under an objective deliberate indifference 

standard.” 888 F.3d at 1124–25 (quoting Castro, 833 F.3d at 1070).
54 SANDOVAL V. COUNTY OF SAN DIEGO

that the [jail employees] were (a) subjectively aware of the 

serious medical need and (b) failed to adequately respond.” 

591 F.3d at 1096. In turn, in order for a jail employee to be 

found to have such subjective awareness, the employee 

“‘must both be aware of facts from which the inference could 

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

he [or she] must also draw the inference.’” Id. (quoting 

Farmer v. Brennan, 511 U.S. 825, 837 (1994)).

Because the qualified immunity issue turns on whether 

“‘any reasonable official in the defendant’s shoes would 

have understood that he [or she] was violating’” thenexisting law, Kisela, 138 S. Ct. at 1153 (quoting Plumhoff v. 

Rickard, 572 U.S. 765, 779 (2014)), and because thenexisting law required subjective awareness of a serious 

medical need, Conn, 591 F.3d at 1096, it follows that a nurse 

who, at the time, did not subjectively apprehend Sandoval’s 

serious medical needs is entitled to qualified immunity. Put 

simply, a nurse who did not violate then-existing law cannot 

possibly be said to have violated clearly established law, and 

such a nurse is therefore entitled to qualified immunity. 

Consequently, unless Plaintiff presented sufficient evidence 

to raise a triable issue with respect to (inter alia) a given 

nurse’s subjective awareness of Sandoval’s serious medical 

needs, that nurse would be entitled to qualified immunity. 

See, e.g., Acosta v. Hill, 244 F. App’x 792, 794 (9th Cir. 

2007) (where “standard for deadly force” changed by virtue 

of intervening en banc decision, qualified immunity was still 

analyzed under the previously applicable standard) 

(applying Vera Cruz v. City of Escondido, 139 F.3d 659, 660 

(9th Cir. 1997), overruled by Smith v. City of Hemet, 

394 F.3d 689, 706 (9th Cir. 2005) (en banc)).
SANDOVAL V. COUNTY OF SAN DIEGO 55

2

The majority nonetheless contends that the qualified 

immunity inquiry in this case is governed by a purely 

objective standard, viz., whether “a reasonable nurse, 

knowing what Llamado, Harris, and de Guzman knew, 

would have understood that [his or her actions] ‘presented 

such a substantial risk of harm to [Sandoval] that the failure 

to act was unconstitutional.’” Maj. Opin. at 39 (citation 

omitted). According to the majority, the qualified immunity 

inquiry requires an exclusively objective focus that 

effectively shears off any subjective element of the 

previously existing liability standard. As explained above, 

this position cannot be correct, because it rests on the selfcontradictory premise that one can violate the clearly 

established law at the time without even violating the law at 

the time. See supra at 54. Although the majority argues that 

its position is required by Ninth Circuit precedent, its ruling 

here is both contrary to our caselaw and creates a split with 

at least three other circuits.

a

The majority wrongly asserts that its approach was 

endorsed in Horton ex rel. Horton v. City of Santa Maria, 

915 F.3d 592 (9th Cir. 2019), where we observed that, under

Estate of Ford v. Ramirez-Palmer, 301 F.3d 1043 (9th Cir. 

2002), the qualified immunity inquiry in a deliberate 

indifference case “should concentrate on the objective 

aspects of the constitutional standard.” Horton, 915 F.3d 

at 600 (emphasis added). But as a review of our decisions in 

Estate of Ford and Horton confirms, this observation merely 

reflects the fact that, in most deliberate indifference cases, 

the subjective elements of the liability standard have little 

work to do at the qualified immunity stage, so that the 

resulting focus should ordinarily be on the objective aspects. 
56 SANDOVAL V. COUNTY OF SAN DIEGO

The fact that, as a practical matter, the inquiry should 

ordinarily “concentrate” on the objective aspects does not 

imply (as the majority would have it) that any consideration 

of the subjective aspects of the test is forbidden, and in fact 

Horton clearly rejects the majority’s view.

In Estate of Ford, we addressed the continued validity of 

our prior decision in Hamilton v. Endell, 981 F.2d 1062 (9th 

Cir. 1992), which had held that a “finding of deliberate 

indifference necessarily precludes a finding of qualified 

immunity” inasmuch as “prison officials who deliberately

ignore the serious medical needs of inmates cannot claim 

that it was not apparent to a reasonable person that such 

actions violated the law.” Id. at 1066 (first emphasis added). 

Estate of Ford did not dispute Hamilton’s underlying 

premise that, with respect to the subjective aspect of the 

deliberate indifference test, the constitutional merits inquiry 

and the qualified immunity inquiry collapsed into one 

another. But given the Supreme Court’s subsequent 

emphasis on maintaining the distinction between the 

underlying merits of a claim and the qualified immunity 

inquiry, Estate of Ford concluded that Hamilton had erred in 

completely “collaps[ing] the deliberate indifference part of 

the constitutional inquiry into the qualified immunity 

inquiry.” 301 F.3d at 1050 (citing Saucier v. Katz, 533 U.S. 

194 (2001)). As Estate of Ford explained, in addition to the 

subjective element, the deliberate indifference test has “an 

objective component as well,” and with respect to that

component, the merits inquiry and the qualified immunity 

inquiry do not collapse together. Id. at 1049–50. Because 

the objective component of the deliberate indifference test 

requires a “substantial risk of serious harm,” a “reasonable 

prison official” could know all the relevant facts and “yet 

mistakenly, but reasonably, perceive that the exposure in any 

given situation was not that high.” Id. at 1050. In such 
SANDOVAL V. COUNTY OF SAN DIEGO 57

circumstances, an officer “would be entitled to qualified 

immunity” despite the subjectively malign disregard of what 

was wrongly (but reasonably) perceived to be a minor risk. 

Id.

Estate of Ford thus did not hold that the qualified 

immunity inquiry is exclusively objective and that it 

affirmatively disregards any subjective elements of the 

underlying liability standard. Rather, Estate of Ford

recognized that, when the underlying liability standard 

remains unchanged and has both subjective and objective 

components, the merits inquiry and the qualified immunity 

inquiry will overlap completely with respect to the subjective

element, but that the same cannot be said of the objective 

element. 301 F.3d at 1049–50. In such circumstances, the 

qualified immunity inquiry will necessarily focus on the 

objective aspects of the test, because the subjective 

component of the test “does not fit easily with the qualified 

immunity inquiry.” Id. at 1049.

But the situation is different if, after the defendant acted, 

the subjective element of the liability standard is modified or 

eliminated. In that circumstance, the merits inquiry (which 

no longer has that subjective element) will not overlap 

completely with the qualified immunity inquiry (which, 

because it examines the law at the time the defendant acted, 

still does have a subjective element). Thus, in contrast to the 

situation in Hamilton and Estate of Ford, the merits and 

qualified immunity inquiries in the change-of-law scenario 

do not collapse into each other with respect to the previously 

applicable subjective element of the liability test. In such a 

case, the court therefore must separately consider at the 

qualified immunity stage whether the Defendants violated 

the law at the time of the conduct, which includes a 
58 SANDOVAL V. COUNTY OF SAN DIEGO

consideration of the since-rejected subjective deliberate 

indifference standard.

Our decision in Horton, which involved the “attempted 

suicide of a jailed pretrial detainee,” confirms this analysis. 

915 F.3d at 596. The district court in Horton, applying the 

then-applicable subjective test, denied qualified immunity to 

defendant police officer Brice, holding that “there is a 

genuine issue of fact regarding whether Officer Brice acted 

with deliberate indifference to Horton’s safety.” Id. at 598. 

Consistent with Estate of Ford, we recognized that, “even 

where the clearly established legal standard requires

deliberate indifference”—as it did at the time Brice acted—

“the qualified immunity inquiry should concentrate on the 

objective aspects of the constitutional standard.” Id. at 600 

(emphasis added). Under Estate of Ford, the fact that there 

was a triable issue as to Brice’s subjective knowledge under 

the “clearly established legal standard” was not enough to 

defeat qualified immunity, because Horton also had to show 

that any reasonable officer would have known that Brice’s 

actions objectively “presented such a substantial risk of harm 

to Horton that the failure to act was unconstitutional.” Id. 

Reviewing the caselaw on that objective aspect of the 

qualified immunity inquiry at the time that Brice acted, we 

held that it was “too sparse, and involved circumstances too 

distinct from those in this case, to establish that a reasonable 

officer would perceive a substantial risk that Horton would 

imminently attempt suicide.” Id. at 601–02.

Because we reversed the district court’s denial of 

qualified immunity based on the objective elements of 

clearly established law, we expressly declined to consider, 

for qualified immunity purposes, how the subjective 

elements of the pre-Castro deliberate indifference test—

which governed at the time of the conduct—applied to 
SANDOVAL V. COUNTY OF SAN DIEGO 59

Horton’s case. 915 F.3d at 602. But in discussing this issue, 

we expressly noted that the new Gordon objective standard 

would not govern this aspect of the inquiry. The objective 

standard, we explained, would “guide our analysis” of the 

merits of “whether a constitutional violation occurred here, 

were we to reach that question,” but “it has no direct bearing 

on the question of whether Officer Brice would have known 

that a failure to immediately check on Horton violated a 

clearly established right at the time of the incident.” Id. 

(emphasis in original). Because the subjective standard was 

no longer applicable to future cases and Brice’s entitlement 

to qualified immunity had already been established on other 

grounds, “no purpose would be served for future cases from 

delineating the application of that [pre-Castro] standard to 

the constitutional merits of this case.” Id. Thus, although 

our finding of qualified immunity based on the objective 

element of the pre-Castro test made it unnecessary to 

address the subjective element of the test under the 

previously applicable law, Horton clearly recognized—

contrary to the majority’s ruling—that the subjective 

element remained an aspect of “the two-step qualified 

immunity procedure” in the change-of-law scenario. Id. 

The “rule of Horton,” see Maj. Opin. at 30, is thus exactly 

the opposite of what the majority claims it is.

b

In addition to being inconsistent with our precedent, the 

majority’s ruling creates a clear split with the decisions of at 

least three other circuits. Indeed, the majority opinion 

candidly acknowledges that the Third, Eighth, and Tenth 

Circuits have held that courts addressing comparable claims 

must “apply a subjective framework for purposes of 

qualified immunity, even though it ha[s] since been replaced 
60 SANDOVAL V. COUNTY OF SAN DIEGO

by an objective standard.” See Maj. Opin. at 38 n.15 

(emphasis added).

For example, in Kedra v. Schroeter, 876 F.3d 424 (3d 

Cir. 2017), the Third Circuit addressed a substantive due 

process claim arising from an alleged “state-created danger” 

involving an accidental shooting during a firearms training 

exercise. Id. at 432. Although current Third Circuit law 

would apply an “objective” standard in addressing such a 

claim, the court held that this standard could not be applied 

to the qualified immunity inquiry because “the objective 

theory of deliberate indifference was not clearly established 

at the time of the shooting.” Id. at 432. As the court 

explained, “we assess qualified immunity based on the law 

that was ‘clearly established at the time an action occurred,’” 

and at the time of the shooting in Kedra, “it was not yet 

clearly established whether deliberate indifference in the 

substantive due process context was governed by an 

objective or subjective standard.” Id. at 440 (citation 

omitted). The qualified immunity inquiry thus turned on 

whether the plaintiff had “pleaded deliberate indifference 

under the subjective test, which was then-clearly 

established,” and after reviewing the complaint, the court 

concluded that the plaintiff had sufficiently alleged a “statecreated danger based on actual knowledge of a substantial 

risk of serious harm—the subjective theory of deliberate 

indifference that was then-clearly established.” Id. at 440, 

444 (emphasis added).

Likewise, in Hall v. Ramsey County, 801 F.3d 912 (8th 

Cir. 2015), the Eighth Circuit held that any change in 

liability standards effected by the Supreme Court’s decision 

in Kingsley could not have any impact on the qualified 

immunity analysis. The court there addressed a Fourteenth 

Amendment excessive force claim asserted by an 
SANDOVAL V. COUNTY OF SAN DIEGO 61

involuntarily committed person, and the court noted that the 

ruling in Kingsley suggested that such a claim would now be 

governed by an objective test. Id. at 917 n.3. But the court 

held that, because the question of qualified immunity turns 

on whether the law was “‘clearly established at the time of 

the’ alleged violation,” the decision in “Kingsley does not 

[a]ffect the standard against which we evaluate the 

[defendants’] conduct in the qualified immunity analysis.” 

Id. (citation omitted).

More recently, the Tenth Circuit similarly applied the 

subjective deliberate indifference test in addressing whether 

jail officials were entitled to qualified immunity with respect 

to claims that they had failed to provide necessary medical 

care to a pretrial detainee who was experiencing drug 

withdrawal symptoms. Quintana v. Santa Fe Cnty. Bd. of 

Comm’rs, 973 F.3d 1022, 1027–28 (10th Cir. 2020). 

Applying the law that was established at the time the 

defendants acted, the court held that the qualified immunity 

analysis “requires both an objective and a subjective 

inquiry.” Id. at 1028. In a footnote, the majority addressed 

Judge Bacharach’s separate opinion concurring in part and 

dissenting in part and explicitly “endorse[d] Judge 

Bacharach’s rejection of the argument that Kingsley . . . 

requires us to conduct only an objective inquiry.” Id. at 1028 

n.1. In the referenced discussion, Judge Bacharach 

explained that, although the “subjective prong” of the 

deliberate indifference test “has been altered for at least 

some claims involving pretrial detainees,” the court had to 

“apply the subjective prong as it was clearly established at 

the time of [the plaintiff’s] detention.” Id. at 1038 n.2 (opin. 

of Bacharach, J.); see also id. at 1049 (“Kingsley did not 

clearly apply to pretrial detainees’ claims of inadequate 

medical care, so the district court did not err in applying the 

subjective prong for purposes of qualified immunity.”). The 
62 SANDOVAL V. COUNTY OF SAN DIEGO

Tenth Circuit’s approach is thus also directly contrary to the 

majority’s analysis here. See also Perry v. Durborow, 

892 F.3d 1116, 1122 n.1 (10th Cir. 2018) (to the extent that 

the governing standard was now “objective deliberate 

indifference, this lower standard wasn’t clearly established 

as of” the date of the incident in question and could not be 

applied in analyzing qualified immunity).

Although the majority’s position is directly contrary to 

that of the Third, Eighth, and Tenth Circuits, the majority 

claims that its approach is supported by the decisions of 

several other circuits. See Maj. Opin. at 32–34. That is 

doubtful. Only two of these cases involved a claim of 

deliberate indifference to the serious medical needs of a 

pretrial detainee, and the court in both cases applied the 

subjective test in addressing qualified immunity. Dyer v. 

Houston, 964 F.3d 374, 383–84 (5th Cir. 2020) (holding that 

confusion over the exact nature of the subjective element did 

not absolve the district court of having to decide whether the 

defendants were liable under the then-clearly established 

standards); Hopper v. Plummer, 887 F.3d 744, 756–57 (6th 

Cir. 2018) (declining to disturb district court’s denial of 

qualified immunity in light of its “finding of a genuine issue 

of material fact as to defendants’ ‘knowledge of a substantial 

risk of serious harm’”).

The majority instead cites the portion of Hopper that 

involved an excessive force claim, as well as two other 

decisions involving such claims. Hopper, 887 F.3d at 755–

56; Miranda-Rivera v. Toledo-Davila, 813 F.3d 64 (1st Cir. 

2016); Kingsley v. Hendrickson, 801 F.3d 828 (7th Cir. 

2015) (decision on remand from the Supreme Court’s 

Kingsley decision). The courts in all three of these cases 

dismissed the notion that any previously applicable 

subjective element of the excessive force test provided any 
SANDOVAL V. COUNTY OF SAN DIEGO 63

basis for granting qualified immunity, and to that extent 

those cases bear some arguable similarity to the majority’s 

conclusion here. Hopper, 887 F.3d at 755; Miranda-Rivera, 

813 F.3d at 73; Kingsley, 801 F.3d at 831. But there is a 

critical difference between the role of the subjective element 

in an excessive force claim (in which the officer 

affirmatively applies force, see Kingsley, 576 U.S. at 395–

96) and a claim of deliberate indifference to serious medical 

needs (in which the official fails to act). In excessive force 

cases in which the objective component of the qualified 

immunity inquiry is met—meaning that the officer has 

applied an objective level of force that any reasonable officer 

would know is excessive—there are likely to be few, if any, 

cases in which the officer who is knowingly and 

affirmatively applying that force could plausibly assert that 

he did not simultaneously act with the requisite subjective 

intent of “at least recklessness.” Kingsley v. Hendrickson, 

744 F.3d 443, 453 (7th Cir. 2014) (describing the prior law 

in the decision that was later reversed by the Supreme Court 

in Kingsley). In other words, satisfying the objective 

standard for qualified immunity in such excessive force 

cases almost certainly means that the subjective element is 

met as well. By contrast, where the gravamen of the 

violation is a failure to act (as in the context of deliberate 

indifference to serious medical needs), the objective 

unreasonableness of a nurse’s failure to detect a serious 

medical risk does not similarly lead to an inescapable 

conclusion that the nurse must have actually subjectively 

appreciated that risk. People can, and do, sometimes 

subjectively overlook what they should obviously detect.

These three cases thus supply little support for the 

majority’s sweeping rule that the qualified immunity inquiry 

is exclusively objective and requires courts to affirmatively 

and always disregard any subjective elements of the 
64 SANDOVAL V. COUNTY OF SAN DIEGO

previously clearly established law. In all events, to the 

extent that these cases could be read to endorse the 

majority’s flawed analysis, then they are wrong as well.3

* * *

Accordingly, each of the Nurses here is entitled to

qualified immunity unless Plaintiff presented sufficient 

evidence to show (inter alia) that that Nurse was 

subjectively “‘aware of facts from which the inference could 

be drawn that a substantial risk of serious harm [to Sandoval] 

exists,’” and that he or she actually “‘dr[e]w the inference.’” 

Conn, 591 F.3d at 1096 (quoting Farmer, 511 U.S. at 837).

B

The district court correctly concluded that Plaintiff failed 

to create a genuine dispute of material fact under the 

applicable subjective standard as to Nurse Romeo de 

Guzman, but it erred in finding that Harris and Llamado 

were entitled to qualified immunity.

3 The majority opinion also misleadingly quotes, out of context, the 

Supreme Court’s observation in Crawford-El v. Britton, 523 U.S. 574 

(1998), that “evidence of improper motive is irrelevant on the issue of 

qualified immunity.” Id. at 589 (quoted at Maj. Opin. at 31). CrawfordEl was merely referring to the now well-settled rule that an otherwise 

valid “defense of qualified immunity may not be rebutted by evidence 

that the defendant’s conduct was malicious or otherwise improperly 

motivated.” Id. at 588. Crawford-El did not address the distinctive 

question presented here concerning how to apply qualified immunity 

principles in the context of a change in liability standards from subjective 

to objective.
SANDOVAL V. COUNTY OF SAN DIEGO 65

1

The district court correctly held that Plaintiff had not 

presented sufficient evidence to permit a reasonable jury to 

find that de Guzman “was actually aware Sandoval had a 

serious medical need.” As the district court noted, the 

undisputed evidence confirms that “Sandoval did not advise 

any prison official of his drug overdose condition”; on the 

contrary, he “lied and denied his use of drugs to Nurse de 

Guzman.” In arguing that de Guzman nonetheless actually 

became subjectively aware of Sandoval’s acute 

methamphetamine intoxication, Plaintiff places primary 

weight on two statements in the police report by one of the 

involved officers (Deputy Rodriguez): (1) de Guzman’s 

statement, as recorded by Rodriguez, that Sandoval should 

be sent to a “sobering tank”; and (2) Rodriguez’s own 

observation that Sandoval “was shaking mildly” and 

“appeared to be having withdrawal[] from drugs.” While I 

agree with the majority that these statements in this 

document should not have been held inadmissible,4 neither 

4 In opposing Defendants’ summary judgment motion below, 

Plaintiff specifically argued that the police reports she submitted are not 

hearsay under Federal Rule of Evidence 803(8). That statement was 

sufficient to preserve this position, notwithstanding Plaintiff’s 

subsequent failure to file any response to the evidentiary objections that 

Defendants submitted with their reply, and the district court therefore 

erred in concluding that Plaintiff forfeited her admissibility arguments 

concerning those reports. We have explained that police reports are 

admissible under Rule 803(8) as to the reporting officer’s own 

observations, United States v. Pazsint, 703 F.2d 420, 424 (9th Cir. 1983), 

and we have also explained that statements made to a government 

official and recorded in an official report may also be admissible if they 

are covered by a separate hearsay exception (or if they are not themselves 

hearsay), see United States v. Morales, 720 F.3d 1194, 1202 (9th Cir. 

2013). Under this framework, any statements of de Guzman that are 
66 SANDOVAL V. COUNTY OF SAN DIEGO

of these statements creates a triable issue as to de Guzman’s 

subjective awareness of Sandoval’s medical predicament.

As to the first statement, de Guzman’s suggestion that 

Sandoval should be sent to a “sobering tank” does not 

support a reasonable inference that de Guzman was 

subjectively aware that Sandoval faced a serious medical 

need. If anything, it shows the exact opposite. I agree with 

Plaintiff that this comment supports an inference that de 

Guzman was aware that Sandoval might be under the 

influence of something,5 but that is not enough to carry 

Plaintiff’s burden of proof. Plaintiff had to show that de 

Guzman was subjectively aware that Sandoval was under the 

influence in a manner that presented a serious medical need. 

De Guzman’s “sobering tank” comment is insufficient to 

permit a jury to draw that inference. On the contrary, the 

suggestion that Sandoval should be removed from the 

current cell adjacent to the nurses’ station (“Medical 

Observation Cell #1” or “MOC1”) and sent to a sobering cell 

negates any suggestion that de Guzman actually drew the 

inference that Sandoval faced a serious medical need. 

Because de Guzman knew that an inmate in a sobering cell 

would only be checked every four hours, his suggestion that 

Sandoval could be sent there reflects, at most, a subjective 

recorded in Rodriguez’s report would be admissible against de Guzman 

as a non-hearsay opposing-party statement. See FED. R. EVID. 801(d)(2).

5 That inference is further supported by de Guzman’s comment, 

during his deposition, that he may have overheard an officer say 

“[s]omething like—‘I just found out that [Sandoval’s] under the 

influence.’”
SANDOVAL V. COUNTY OF SAN DIEGO 67

belief that Sandoval was under the influence in a manner that 

did not present a substantial risk of serious harm.6

Plaintiff argues that, in light of an additional statement 

in Rodriguez’s report, a reasonable jury could find that de 

Guzman was aware that Sandoval’s condition was serious. 

Specifically, Plaintiff notes that, in his report, Rodriguez 

stated that “Sandoval appeared to be having withdrawal[] 

from drugs.” But as the district court noted, Rodriguez’s 

report does not say that Rodriguez ever told de Guzman that 

he (Rodriguez) thought Sandoval was experiencing 

withdrawal symptoms—much less that Sandoval was 

experiencing symptoms that suggested a substantial risk of 

serious harm.

None of the other evidence cited by Plaintiff would 

permit a reasonable jury to find that de Guzman became 

subjectively aware that Sandoval’s situation presented a 

substantial risk of serious harm. Plaintiff points out that, in 

response to de Guzman’s suggestion that Sandoval should 

be moved to a sobering cell, Deputy Wilkinson and Corporal 

Powell relayed back to de Guzman their view that Sandoval 

should stay in MOC1, but Plaintiff does not point to any 

evidence that Wilkinson or Powell ever told de Guzman that 

they thought that Sandoval faced any specific, much less 

serious, medical risk. Plaintiff cites only Rodriguez’s report, 

but that report merely states that Wilkinson and Powell 

6 The majority surmises that perhaps de Guzman knew that Sandoval 

had a serious medical need but nonetheless wanted to send him to a 

sobering cell because de Guzman “did not want to deal with the hassle 

of providing” the necessary care. See Maj. Opin. at 42 n.16. No record 

evidence supports the majority’s speculation, which provides no basis 

for denying summary judgment here. See Nelson v. Pima Cmty. Coll., 

83 F.3d 1075, 1081–82 (9th Cir. 1996) (“mere allegation and speculation 

do not create a factual dispute for purposes of summary judgment”).
68 SANDOVAL V. COUNTY OF SAN DIEGO

“determined it would be better if Sandoval remained in [his] 

observation cell”; it does not state that they provided any 

details as to why they had that view (much less whether they 

had determined that Sandoval faced any sort of serious 

medical need).

Because Plaintiff failed to present sufficient evidence to 

show that de Guzman was subjectively aware of Sandoval’s 

serious medical needs, de Guzman was entitled to qualified 

immunity. I therefore dissent from the majority’s reversal of 

the district court’s grant of summary judgment to de 

Guzman.

2

Under the correct qualified immunity standards, I 

conclude that Nurse Dana Harris was not entitled to 

summary judgment.

Plaintiff has presented ample evidence to support her 

theory that, under an objective standard, Harris was grossly 

incompetent because she did not understand that in San 

Diego, the Emergency Medical Technicians (“EMTs”) that 

she had initially summoned could not perform the Advanced 

Cardiac Life Support (“ACLS”) that Sandoval needed. But 

as explained earlier, the qualified immunity inquiry also has 

a subjective component and requires Plaintiff to present 

sufficient evidence to establish that Harris was subjectively 

aware that her actions were creating or exacerbating a 

substantial risk of serious harm. I agree with Plaintiff that 

the evidence in the summary judgment record is sufficient to 

permit a jury to find that Harris was subjectively aware that 

Sandoval was having a seizure and that the seizure posed a 

substantial risk of serious harm, but that is not enough to 

show that Harris acted with deliberate indifference. Rather, 

Plaintiff had to show that Harris was subjectively aware that 
SANDOVAL V. COUNTY OF SAN DIEGO 69

her response to the situation was inadequate and placed 

Sandoval at a substantial risk of serious harm. But Plaintiff’s 

above-described theory that Harris was “[t]oo 

[i]ncompetent” to subjectively know that EMTs could not 

perform ACLS is affirmatively inconsistent with the view 

that Harris subjectively drew the inference that her actions 

were placing Sandoval at a substantial risk of serious harm. 

Accordingly, under this view of the evidence, the very fact 

of Harris’s subjective obliviousness would entitle her to 

qualified immunity.

Nonetheless, I believe that the district court erred in 

granting summary judgment to Harris. In my view, the 

sharply conflicting evidence in the summary judgment 

record is sufficient to permit the alternative inference that 

Harris did subjectively know that she needed to call 911 for 

paramedics (who could perform ACLS) and that EMTs 

would be inadequate, but that for whatever reason (e.g., 

panic, stubbornness, foolishness, etc.), she refused to do so. 

Although Harris insisted that no one told her to call 911 or 

paramedics, Plaintiff presented competing evidence that: 

(1) Deputy Matthew Andrade (who had himself been trained 

as an EMT) told Harris two or three times that paramedics 

should be called; (2) very early into the emergency, Nurse

Llamado concluded that “9-1-1 should be called,” and she 

said out loud to Harris and the others multiple times that 

Sandoval “has to go out 9-1-1”; (3) after consulting with the 

supervising nurse (Shirley Bautista), Llamado told Harris 

that “Shirley said he has to go now 9-1-1”; and (4) Llamado 

confirmed that calling paramedics was “[s]tandard nursing 

protocol” at the jail in the case of a prolonged seizure. Based 

on this evidence, a rational jury could readily conclude that 

Harris well knew that she needed to call 911 and 

inexplicably failed to do so. See Farmer, 511 U.S. at 842 

(“Whether a[n] . . . official had the requisite knowledge of a 
70 SANDOVAL V. COUNTY OF SAN DIEGO

substantial risk is a question of fact subject to demonstration 

in the usual ways, including inference from circumstantial 

evidence.”). And, based on the same evidence, a jury could 

reasonably conclude that the resulting deprivation was 

“objectively . . . sufficiently serious,” thereby satisfying the 

objective component of then-existing law concerning 

deliberate indifference to serious medical needs. Estate of 

Ford, 301 F.3d at 1049.

Moreover, I would further conclude that, under thenexisting law, it was clearly established that Harris’s conduct 

violated Sandoval’s constitutional rights. Long before this 

incident, the Supreme Court had held that, to show deliberate 

indifference to a serious medical need, “it is enough that the 

official acted or failed to act despite his knowledge of a 

substantial risk of serious harm.” Farmer, 511 U.S. at 842. 

Given that the evidence here amply supports the view that 

Harris subjectively knew that paramedics needed to be called 

to avoid objectively serious harm to Sandoval, and given that 

Harris’s behavior was so obviously objectively 

unreasonable, it follows that, “at the time of [Harris’s] 

conduct, the law was ‘sufficiently clear’ that every 

‘reasonable official would understand that what [s]he is 

doing’ is unlawful.” Wesby, 138 S. Ct. at 589 (quoting 

Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)) (emphasis 

added). Harris therefore violated clearly established law at 

the time she acted. See id.

The only remaining question is whether, under existing

law, Harris deprived Sandoval of a constitutional right. 

Pearson v. Callahan, 555 U.S. 223, 232 (2009). I agree with 

the majority that Plaintiff presented sufficient evidence to 

permit a jury to find that Harris violated Sandoval’s 

constitutional rights under the now-governing objective test 

set forth in Gordon. See Maj. Opin. at 39–40.
SANDOVAL V. COUNTY OF SAN DIEGO 71

For the foregoing reasons, I concur in the judgment 

reversing the grant of summary judgment to Harris.

3

For substantially similar reasons, I concur in the 

judgment reversing the district court’s grant of summary 

judgment to Nurse Maria Llamado. Indeed, Plaintiff’s 

evidence as to Llamado is, if anything, even stronger than as 

to Harris. Llamado’s own deposition testimony confirms 

that she was subjectively aware that Harris was wrong in 

summoning only EMTs and not paramedics. Llamado also 

admitted at her deposition that she should have called 

paramedics herself, stating that she had “learned [her] 

lesson.” Under the facts that could reasonably be found by 

the jury on this record, Llamado violated Sandoval’s clearly 

established rights under then-existing law, and her actions 

also violated Sandoval’s rights under current law. Summary 

judgment for Llamado was therefore improper.

III

In my view, the district court correctly granted summary 

judgment to the county on Plaintiff’s § 1983 claims against 

it, and I therefore dissent from that aspect of the majority’s 

judgment.

Under Monell v. Department of Social Services, 436 U.S. 

658 (1978), a local government entity “may not be held 

liable under 42 U.S.C. § 1983, unless a policy, practice, or 

custom of the entity can be shown to be a moving force 

behind a violation of constitutional rights.” Dougherty v. 

City of Covina, 654 F.3d 892, 900 (9th Cir. 2011). To 

establish such liability, Plaintiff “must prove (1) that 

[Sandoval] possessed a constitutional right of which [he] 

was deprived; (2) that the municipality had a policy; (3) that 
72 SANDOVAL V. COUNTY OF SAN DIEGO

this policy amounts to deliberate indifference to 

[Sandoval’s] constitutional right; and, (4) that the policy is 

the moving force behind the constitutional violation.” Id.

(citation and internal quotation marks omitted) (emphasis 

added). Plaintiff contends that the county was deliberately 

indifferent in having a policy or practice of using MOC1 as 

a “mixed use” cell “for both correctional and medical 

purposes” without imposing “appropriate safeguards,” such 

as “routine medical monitoring, tracking logs and proper . . .

procedures” for transmitting information to incoming nurses 

at the end of a given nurse’s shift. On the record presented 

at summary judgment, this contention fails as a matter of 

law, and summary judgment was properly granted.

Negligence alone is insufficient to plead a constitutional 

tort, see County of Sacramento v. Lewis, 523 U.S. 833, 848–

49 (1998), and Plaintiff concedes that she must go further 

and show that the policy, practice, or custom she challenges 

“amounts to deliberate indifference to the plaintiff’s 

constitutional right,” Dougherty, 654 F.3d at 900 (emphasis 

added). The applicable “deliberate indifference” standard 

for Monell claims, however, differs from the abovediscussed standard that applied to the individual Defendants 

under then-existing law for qualified immunity purposes: 

whereas the latter applies both an objective and a subjective 

standard, the former is purely objective. See Farmer, 

511 U.S. at 840–41; Castro, 833 F.3d at 1076. In the context 

of an analogous claim about inadequate monitoring of jail 

cells, we held in Castro that the objective deliberate 

indifference standard for municipal liability under § 1983 

requires a showing that “‘the facts available to city 

policymakers put them on actual or constructive notice that 

the particular omission is substantially certain to result in the 

violation of the constitutional rights of their citizens.’” Id. 

at 1076 (citation omitted); see also Board of Cnty. Comm’rs 
SANDOVAL V. COUNTY OF SAN DIEGO 73

v. Brown, 520 U.S. 397, 410 (1997) (“‘[D]eliberate 

indifference’ is a stringent standard of fault, requiring proof 

that a municipal actor disregarded a known or obvious 

consequence of his action.”).

Plaintiff failed to present sufficient evidence to satisfy 

this demanding standard, and the county was therefore 

entitled to summary judgment. Plaintiff’s evidence of prior 

confusion concerning why particular inmates were placed in 

MOC1 may well support a claim that the county was 

negligent,7 but that evidence does not come close to showing 

that the county had “‘actual or constructive notice’” that this 

practice was “‘substantially certain’” to result in an 

unconstitutional disregard of a serious medical need. 

Castro, 833 F.3d at 1076 (citation omitted) (emphasis 

altered). The fact that the county changed its practices 

concerning MOC1 after this incident—even if admissible for 

purposes going beyond merely proving that a policy, 

practice, or custom existed, but see Conn, 591 F.3d at 1104 

n.7 (applying Fed. R. Evid. 407 to cabin the use of post-event 

practice)—does not establish that the county had the preincident actual or constructive notice Castro requires. I 

therefore disagree with the majority’s finding that a

reasonable jury could infer that the county had actual or 

constructive knowledge that its practices in regard to the 

7 The Plaintiff opening brief cites as evidence of confusion a 

comment by one of her experts that the county’s practice “created a 

constant state of chaos and lack of communication between the deputies 

and the nursing staff.” The expert’s lengthy report, however, cites 

nothing in the record to support this particular remark. Nurse Llamado 

and Shirley Bautista, the charge nurse on the night in question, also 

testified that the mixed-used nature of MOC1 was confusing to nursing 

staff. However, this evidence of confusion does not create a triable issue 

under the Castro standard.
74 SANDOVAL V. COUNTY OF SAN DIEGO

MOC1 cell were substantially certain to result in an 

unconstitutional disregard of a serious medical need.

Plaintiff contends that the constructive notice standard 

should not apply because here the county’s “policy itself 

directs the unconstitutional action.” Plaintiff, however, has 

presented no evidence that the policy itself is 

unconstitutional. In particular, to the extent that Plaintiff 

contends that the county had an unconstitutional policy, 

practice, or custom to affirmatively and completely ignore 

persons placed in MOC1, there is no evidence that the 

county had such a policy: it is undisputed that the MOC1 cell 

is visible to personnel at the nurses’ station; and, indeed, it 

is undisputed that Sandoval’s eventual seizure and collapse 

onto the floor was immediately detected.

For the foregoing reasons, I concur in the judgment in 

part and respectfully dissent in part.