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Ninth Circuit: Pretrial Detainees Have Right to Direct-View Safety Checks

by David M. Reutter

The Ninth Circuit Court of Appeals reversed a grant of summary judgment to a jail nurse, holding that it was clearly established at the time of the events relevant to the lawsuit under review that an arrestee being booked into jail had a constitutional right to proper medical screening to ensure initiation of medically appropriate protocol was initiated. The Court affirmed judgment to a jail guard, but its ruling warned it is now clearly established that pre-trial detainees have a right to direct-view safety checks to determine whether their presentation indicates the need for medical treatment.

The Court’s July 26, 2021, opinion was issued in an appeal brought by the estate of Matthew Shane Gordon. He was arrested on heroin related charges on September 6, 2013, and booked into California’s Orange County Central Men’s Jail. Registered nurse Debbie Finley recorded that Gordon had a 3-gram-a-day heroin habit.

Pursuant to the order of Dr. Thomas Le, Finley, Gordon was to be assessed for four days with the Clinical Institute Withdrawal Assessment for Alcohol (CIWA). Finley used that form to assess Gordon’s symptoms.

Thereafter, it took Gordon ten hours to complete the booking “loop.” Another pretrial detainee said he saw Gordon vomiting and dry heaving for 45 minutes during that period. Finley testified that she did not examine Gordon over that period.

He exited the booking loop at around 8:30 a.m. on September 9 and was taken to a general population pod. Once there, he presented a card indicating he required medical attention. He was given detoxification medications during the day, with the last occurring at 8:30 p.m. No CIWS or other examination was conducted that day.

California law requires that guards conduct safety checks of prisoners at least every 60 minutes. Guard Robert Denney and others made checks at 8:03, 8:31, 9:29, and 10:10 p.m. according to a log. Denney said he conducted his safety check of Gordon from a corridor that was about six feet elevated from the tank floor and 12 to 15 feet from Gordon’s bunk. He admitted he was unable to ascertain whether Gordon was sleeping, alive, sweating profusely, drooling, or had any potential indicators of a physical problem.

At around 10:45 p.m. guards heard detainees yelling “man down.” When Denney arrived, Gordon’s “face was blue, he was unresponsive, and his skin was cold to the touch.” Paramedics transported him to a hospital where he was pronounced dead.

Gordon’s estate sued. In a previous appeal, the Ninth Circuit held that inadequate medical claims brought by pretrial detainees require a showing of objective, not subjective, deliberate indifference. [See: Gordon v. County of Orange, 888 F.3d 1118, 1124-1125 (9th Cir. 2018); also PLN, Oct. 2018, p. 48]. On remand, the district court granted the defendants summary judgment and found that the Estate could not establish a custom or practice for municipal liability.

The Ninth Circuit found it was error to grant judgment to Finley. While the Court never used the “precise words stating that a constitutional right exists, our precedent confirms that a pretrial detainee’s right to proper medical screening was clearly established.” It noted that, “Finley acted as gatekeeper by serving as the screening nurse and was therefore responsible for identifying an inmate’s urgent medical needs.” That satisfied the first prong of the qualified immunity analysis, and the district court was ordered to conduct an analysis of the second prong.

Denney’s liability was predicated on his failure to conduct direct-safety checks. The Ninth Circuit was unaware of any precedent recognizing that as a right, so Denney was entitled to qualified immunity.

The Court’s opinion, however, made clear that pretrial detainees have a constitutional right to direct-view safety checks and its opinion was a “warning” to “law enforcement and prison personnel.”

The district court’s order was affirmed in part and reversed and remanded in part. See: Gordon v. County of Orange, 6 F.4th 961 (9th Cir. 2021). 

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Related legal cases

Gordon v. County of Orange

Gordon v. County of Orange