Borges v. City of Eureka et al

Filing 210

PRETRIAL ORDER NO. 4 REGARDING LEGAL STANDARD FOR CONSTITUTIONAL CLAIM RE: MEDICAL CARE. Signed by Judge Yvonne Gonzalez Rogers on 7/25/17. (fs, COURT STAFF) (Filed on 7/25/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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STEPHANY BORGES,
Plaintiff,

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v.

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United States District Court
Northern District of California

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Defendants.

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PRETRIAL ORDER NO. 4 REGARDING LEGAL
STANDARD FOR CONSTITUTIONAL CLAIM RE:
MEDICAL CARE

COUNTY OF HUMBOLDT, MICHAEL DOWNEY,
TIM HERSHBERGER, TERRI BITTNER, TIM
HAMMER AND DAVID SWIM

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Case No.: 15-cv-00846 YGR

Plaintiff is the mother of decedent Daren Borges, who died after being in a state of acute
methamphetamine intoxication while detained in a sobering cell of the Humboldt County
Correctional Facility (the “County jail”) on June 13, 2014. Plaintiff initially asserted fourteen
claims for relief, and five remain. These claims include a Fourth Amendment claim or, in the
alternative, a Fourteenth Amendment claim for denial of medical care by the defendant County
officers who detained Borges in the sobering cell after he was brought to the County jail. (Dkt. No
111 at 1-2.) The parties dispute the source of the alleged constitutional violation and the standard
applied thereto. For the reasons set forth below, the Courts finds the alleged violation arises from
the Fourteenth Amendment and the standard is one of objective deliberative indifference.
I.

INTRODUCTION
On July 10, 2017, the parties filed a revised joint statement regarding proposed jury

instructions. (Dkt. No. 203.) Plaintiff’s proposed instruction No. 15 (Fourth Amendment—
Unreasonable Seizure of Person—Duty to Obtain Objectively Reasonable Medical Assistance)
states that “[u]nder the Fourth Amendment, an officer has a duty to obtain medical assistance for a
person who has been seized that is “objectively reasonable” under the circumstances . . . .” (Id. at

27.) Defendants counter that Borges’ denial of medical assistance claim is properly analyzed under

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the Fourteenth Amendment’s “deliberate indifference” standard. (Id. at 27-28.) The parties

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previously presented the issue of whether plaintiff’s denial of medical care claim is governed by

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the Fourth or Fourteen Amendment in their briefs filed in connection with defendant’s motion for

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summary judgment. (Dkt. Nos. 67, 78, 94.) The Court requested additional briefing on this issue,

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which the parties provided. (Dkt. Nos. 101, 102.) In granting in part and denying in part

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defendant’s motion for summary judgment, the Court held that it was “not necessary at [that]

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juncture to decide whether Borges had a Fourth Amendment right to medical care, rather than just

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a Fourteenth Amendment right.” (Dkt. No. 121).1 It is now necessary to determine the

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constitutional basis and standard of care which apply to Borges’ right to medical care.

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United States District Court
Northern District of California

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II.

Legal FRAMEWORK

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A. Constitutional Basis for Right to Medical Care While in Custody

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The Ninth Circuit analyzes alleged violations of the right to adequate medical care while in

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custody under the due process clause of the Fourteenth Amendment. Gibson v. County of Washoe,

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Nev. 290 F.3d 1175, 1187-88, 1196-97 (9th Cir. 2012) overruled on other grounds, Castro v.

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County of Los Angeles, 833 F.3d 1060, 1076 (9th Cir. 2016) (en banc). In Gibson, the Court

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determined that plaintiff’s constitutional right to medical care while in custody “derive[s] from the

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due process clause” and supports an “established right not to have officials remain deliberately

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indifferent to their serious medical needs.” Id. at 1187.

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The following year, the Ninth Circuit reaffirmed that “failure to provide care for serious

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medical needs, when brought by a detainee . . . who has been neither charged nor convicted of a

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crime, are analyzed under the substantive due process clause of the Fourteenth Amendment.” Lolli

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Specifically, the Court noted that sufficient evidence existed from which a jury could find
that certain defendants violated Borges’ right to medical care even under the defendant-friendly
“deliberate indifference” standard of the Fourteenth Amendment, while insufficient evidence
existed from which a jury could find that another defendant violated Borges’ right to medical care
even under the plaintiff-friendly “objective reasonableness” standard of the Fourth Amendment.
The Court must now decide which standard applies.

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v. County of Orange, 351 F.3d 410, 418-19 (9th Cir. 2003). The Lolli Court distinguished Pierce

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v. Multnomah County, 76 F.3d 1032, 1043 (9th Cir. 1996), which held that “the Fourth

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Amendment sets the applicable constitutional limitations on the treatment of an arrestee detained

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without a warrant,” id., on the ground that “[a]lthough the Fourth Amendment provides the proper

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framework for [] excessive force claim[s], it does not govern [] medical needs claim[s].” Lolli, 351

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F.3d 418-419. (Internal citation omitted.) The Court proceeded to apply the substantive due

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process “deliberate indifference” standard to plaintiff’s claim for denial of adequate medical care

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related to plaintiff’s diabetes. Id. at 418-20.
Several district courts have followed Gibson and Lolli in holding that “[c]laims of failure

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to provide care for serious medical needs, when brought by a prearraigment detainee . . . who has

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neither been charged nor convicted of a crime, are analyzed under the substantive due process

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clause of the Fourteenth Amendment.” Dennison v. Lane, 2013 WL432935 *6 (N.D.Cal. 2013)

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(quoting Gibson, 290 F.3d at 1187); see also M.H. v. Country of Alameda, 62 F. Supp. 3d 1049 at

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1076 (N.D. Cal. 2014) (holding that pre-trial detainee’s right to adequate medical care “derived

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from the Due Process clause”); Frary v. County of Marin, 81, F.Supp.3d 811, 823-24 (N.D.Cal.

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2015) (same); Weaver v. City and County of San Francisco, 2016 WL 913372 at *7 (N.D. Cal.

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2016) (pre-trial detainee’s “right to adequate medical treatment is guaranteed by the Fourteenth

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Amendment’s Due Process Clause”); Green v. County of Sacramento, 2016 WL 374561 at *10

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(applying Fourteenth Amendment framework to claim that defendant officers delayed plaintiff’s

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access to medical care).

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This Court concurs and finds that plaintiff’s claim for denial of medical care by the County

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officers who detained Borges in the sobering cell after he was brought to the County jail is

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governed by the Fourteenth Amendment.

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Plaintiff’s primary reliance on Pierce and Tatum v. City & County of San Francisco, 441

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F.3d 1090, 1097-99 (9th Cir. 2006), in arguing that plaintiff’s medical care claim derives from the

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Fourth Amendment, does not ultimately persuade in light of the Ninth Circuit’s holding in Lolli,

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which specifically contrasted Pierce in distinguishing excessive force from medical needs claims.

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See Lolli, 351 F.3d 418-419. Similarly, Tatum involved an excessive force claim brought by a
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decadent’s mother against arresting offices, supervising offices, and the City and County of San

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Francisco seeking damages for wrongful death and other torts under California law and 42 U.S.C.

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1983. Tatum, 441 F.3d. at 1093. There, decedent struggled with arresting officers and was forced

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to the ground and handcuffed. Id. After decedent’s breathing became shallow, the officers called

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an ambulance but did not perform cardiopulmonary respiration (CPR). Plaintiff alleged claims for

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false arrest and excessive force. Id. at 1093. As in Pierce, plaintiff did allege failure to provide

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adequate medical care while in custody. Rather, plaintiff alleged that the arresting officers’ failure

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to perform CPR following the arrest constituted excessive force. Id. at 1097. Nowhere does the

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Tatum court state that, contrary to Gibson and Lolli, a plaintiff’s right to medical care while in
custody is governed by the Fourth Amendment. Notably, Tatum does not even reference Gibson,

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Lolli, or a Fourth Amendment right to medical care.2 The out-of-circuit cases cited by plaintiffs

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are similarly not apt.3

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Plaintiff further argues that Maddox v. City of Los Angeles, 793 F.2d 1408, 1415 (9th Cir.
1986), supports plaintiff’s position that claims for denial of medical care brought by a warrantless
arrestee are governed by the Fourth Amendment. However, the Maddox Court specifically noted
that plaintiff’s claims “[arose] under the fourteenth amendment due process clause.” Id. (Emphasis
supplied.) Notably, the Maddox opinion does not even mention the Fourth Amendment.
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The portion of Williams v. Rodriguez, 509 F.3d 392 (7th Cir. 2007), on which plaintiffs
rely is dicta and, in any event, has never been adopted by a Ninth Circuit Court. There, after
rejecting plaintiff’s medical needs claim under a Fourteenth Amendment deliberate indifference
standard, the Seventh Circuit noted that claims regarding conditions of confinement for pretrial
detainees are governed by the Fourth Amendment’s objectively unreasonable standard but held
that plaintiff “waived any Fourth Amendment claim by failing to amend or supplement his motion
for summary judgment or raise the issue on appeal.” Id. at 402-403. Further, Sides v. City of
Champaign, 496 F.3d 820 (7th Cir. 2007), noted that “[b]etween arrest and conviction the Due
Process Clause of the Fifth Amendment supplies the standard.” Id. at 828. (Emphasis supplied.) In
any event, the Ninth Circuit has not adopted Sides.
Freece v. Young, 756 F. Supp. 699 (W.D.N.Y. 1991), another case on which plaintiff
relies, reflects a “split of authority within [the Second] Circuit as to the proper constitutional basis
for denial of medical care claims brought by pre-trial arrestee against law enforcement officials.”
See Goodwin v. Kennedy, 2015 WL 1040663 at *7 (E.D.N.Y. 2015). In Goodwin, the court noted
that the Eastern District of New York and its sister district courts “generally apply the ‘deliberate
indifference’ standard of the Due Process Clause of the Fourteenth Amendment” and adopted that
approach. Id.; See also Mowry v. Noone, 2004 WL 2202645, at *4 (W.D.N.Y. 2004); Bradley v.
Rell, 703 F.Supp.2d 109, 117 (N.D.N.Y.2010); Jordan v. Masterson, 2012 WL 1340796 at *3 (D.
Conn. 2012); Paulin v. Figlia, 916 F.Supp.2d 524, 534 (S.D.N.Y.2013).

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Accordingly, the Court finds that plaintiff’s medical care claim is governed by the
Fourteenth Amendment.4

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B. Fourteenth Amendment Standard Governing Right to Medical Care in Custody

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Although the Fourteenth Amendment governs plaintiff’s medical needs claim, the Ninth

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Circuit’s holding in Castro v. County of Los Angeles, 833 F.3d 1060, raises serious questions as to

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whether application of the Fourteenth Amendment “subjective” deliberate indifference standard

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articulated in Gibson and Lolli is proper here. Castro analyzed a Fourteenth Amendment claim

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against officers who failed to prevent an attack against a pretrial detainee by another inmate with

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whom he was jailed. The Castro court announced a new, objective “deliberate indifference”
standard for analyzing a pretrial detainee’s “failure-to-protect” claim, which no longer required

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proof of an officer’s subjective awareness of the risk to which he was exposing the detainee. See

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id. at 1070-71.

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In this Court’s order granting in part and denying in part defendant’s motion for summary

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judgment, (Dkt. No. 121), the Court addressed how Castro changed the Fourteenth Amendment

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“deliberate indifference” standard in “failure-to-protect” cases, and its application in this case.

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This Court’s prior discussion is instructive. Prior to Castro, the Ninth Circuit had held that a single

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“deliberate indifference” test existed under both the Eighth and Fourteenth Amendments. Castro,

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833 F.3d 1060, 1068.

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(Citations omitted). This was a subjective “deliberate indifference” test, derived from the Eighth

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Amendment, which required the plaintiff to prove an officer’s punitive intent or subjective

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awareness of the risk of harm. Id. (citations omitted). In Castro, the court found that this prior

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Ninth Circuit precedent was cast into “serious doubt” as a result of the Supreme Court’s ruling in

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Kingsley, which held that a pretrial detainee need not prove an officer’s “subjective intent to

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punish” to support a Fourteenth Amendment excessive force claim (as opposed to an Eighth

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Amendment claim). Id. at 1068-70 (citing Kingsley v. Hendrickson, 135 S.Ct. 2466 (2015)).

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The Court notes that this impacts numerous proposed jury instructions to be resolved
with the parties.
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After examining Kingsley at length, the Castro court held that “the broad wording of
Kingsley . . . did not limit its holding to ‘force’ but spoke to ‘the challenged governmental action’

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generally.” Id. at 1070 (citing 135 S.Ct. at 2473–74). The Castro court thus extended Kingsley’s

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elimination of the subjective awareness requirement beyond Fourteenth Amendment excessive

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force cases, holding that Kingsley also applied to Fourteenth Amendment failure-to-protect claims.

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Id. In so holding, Castro overruled the single, subjective “deliberate indifference” standard

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previously used to analyze both Eighth and Fourteenth Amendment claims, finding that Kingsley

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required these two types of claims to have different “deliberate indifference” standards. Id. In its

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place, Castro articulated an objective “deliberate indifference” test for Fourteenth Amendment

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failure-to-protect claims, in which the plaintiff need only prove that the officer’s conduct was

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subjectively “intentional,” but may then otherwise rely on “purely objective” evidence, rather than

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having to prove punitive intent or subjective awareness of risk. Id. at 1068-70.

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The Castro court did not specifically address whether this new objective “deliberate

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indifference” test should apply to pretrial detainees’ Fourteenth Amendment claims arising from

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untreated serious medical needs. However, the Supreme Court has stated that medical care claims

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are substantially the same as claims for failure to protect against other inmates. See Wilson v.

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Seiter, 501 U.S. 294, 303 (1991) (stating that the “medical care a prisoner receives is just as much

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a “condition” of his confinement as . . . protection he is afforded against other inmates”).

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(Emphasis supplied.) Similarly, the Ninth Circuit has long analyzed claims that government

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officials failed to address pretrial detainees’ serious medical needs using the same standard as

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cases alleging that government officials failed to protect pretrial detainees in some other way. See

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Castro, 833 F.3d at 1085 (Ikuta, J., dissenting) (collecting cases). In addition, Castro expressly

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overruled Clouthier v. County of Contra Costa, 591 F.3d 1232 (9th Cir. 2010)—a case which itself

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involved claims that correction facility officials failed to address the serious medical needs of a

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pretrial detainee—for interpreting “deliberate indifference” as requiring proof of the officer’s

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subjective intent to punish. Id. at 1070. Thus, when considered alongside Castro’s broad

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interpretation of Kingsley, the Court finds that applying Castro’s objective “deliberate

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indifference” test to this case is an appropriate lens through which to evaluate the claim. See also
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Guerra v. Sweeny, 2016 WL 5404407, at *3 (E.D. Cal. Sept. 27, 2016) (finding that Castro should

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apply to pretrial detainees’ claims of injury resulting from untreated serious medical needs).5

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Defendants’ proposed jury instruction No. 15 is therefore DENIED.

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III.

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Application
Under Castro, the elements of plaintiffs’ claim for denial of access to adequate medical

care are:

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(1) The defendant made an intentional decision with respect to the conditions under which
plaintiff was confined;

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(2) Those conditions put plaintiff at substantial risk of suffering serious harm;

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Northern District of California

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(3) The defendant did not take reasonable available measures to abate that risk, 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; and
(4) By not taking such measures, the defendant caused plaintiff’s injuries.

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Castro, 833 F.3d at 1071. (Emphasis supplied.) Only a purely accidental act or inaction would fail

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to satisfy the first element. See Id. at 1070 (noting this element “would not be satisfied in the

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failure-to-protect context if the officer’s inaction resulted from something totally unintentional,”

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such as “an accident or sudden illness that rendered him unconscious and thus unable to monitor

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the cell”). “With respect to the third element, the defendant’s conduct must be objectively

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unreasonable, a test that will necessarily turn on the facts and circumstances of each particular

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case.” Id. at 1071 (citations and internal quotation marks omitted). The Castro court held that this

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required only that there be “substantial evidence that a reasonable officer in the circumstances

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would have appreciated the high degree of risk involved . . . .” Id. at 1072.

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Other Circuit courts similarly treat failure to protect claims the same as claims alleging
failure to provide adequate medical care. See Young v. City of Mount Rainier, 238 F.3d at 575 (4th
Cir.) (2001) (stating that a claim of failure to protect from harm “is no different in any meaningful
respect from the indifferent-to-medical-needs claim”); Hare v. City of Corinth, 74 F.3d 633, 644
(5th Cir.1996) (en banc) (noting “the absence of a constitutionally significant distinction between
failure-to-protect and medical care claims”).
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IV.

CONCLUSION
Accordingly, in light of the Court’s finding herein, plaintiff’s Fourth Amendment claim for

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denial of medical assistance for decedent is DISMISSED as the claim arises from the Fourteenth

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Amendment. The jury will be instructed consisted with the standard set forth herein.

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IT IS SO ORDERED.

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Dated: July 25, 2017
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YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

United States District Court
Northern District of California

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