Patrick Russell v. Jocelyn Lumitap ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PATRICK RUSSELL, individually, and No. 18-55831
as Personal Representative of the
Estate of Patrick John Russell; D.C. No.
LYNNE RUSSELL, individually, and 8:17-cv-00125-
as Personal Representative of the JLS-DFM
Estate of Patrick John Russell,
Plaintiffs-Appellees,
OPINION
v.
JOCELYN LUMITAP, individually;
PATTI TROUT, individually; MARIA
TEOFILO, individually; THOMAS LE,
individually,
Defendants-Appellants.
Appeal from the United States District Court
for the Central District of California
Josephine L. Staton, District Judge, Presiding
2 RUSSELL V. LUMITAP
Argued and Submitted October 23, 2019
Submission Withdrawn August 19, 2020
Resubmitted April 6, 2022*
Pasadena, California
Filed April 13, 2022
Before: Andrew J. Kleinfeld, Consuelo M. Callahan, and
Ryan D. Nelson, Circuit Judges.
Opinion by Judge Kleinfeld
SUMMARY**
Prisoner Civil Rights
The panel affirmed in part and reversed in part the district
court’s denial, on summary judgment, of qualified immunity
to medical providers at Orange County Jail in an action
brought pursuant to 42 U.S.C. § 1983 alleging that defendants
*
While this panel was considering this case, another panel with
priority issued its decision in Sandoval v. Cnty. of San Diego, 985 F.3d
657 (9th Cir. 2021). The Supreme Court denied certiorari in Sandoval on
December 13, 2021, and we decided Hyde v. City of Willcox, 23 F.4th 863(9th Cir. 2022), also relevant to this case, on January 6, 2022. Counsel
were ordered to brief the effects of those two cases on this one on January
25, 2022, and the briefs were filed on February 24 and 25, 2022. We
accordingly revised our opinion as necessary and resubmitted this case on
April 6, 2022.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
RUSSELL V. LUMITAP 3
were deliberately indifferent to the medical needs of Patrick
John Russell, a pretrial detainee who died from a ruptured
aortic dissection.
The panel first held that it had jurisdiction to review the
denial of qualified immunity at the summary judgment stage
because defendants did not challenge the determination that
there were genuine issues over material facts, but instead
argued that they were entitled to qualified immunity because
they did not violate Russell’s clearly established
constitutional rights on the record taken in the light most
favorable to Russell.
Applying Sandoval v. County of San Diego, 985 F.3d 657(9th Cir. 2021), the panel stated that to defeat qualified
immunity plaintiffs must show that, given the available case
law at the time, a reasonable official, knowing what Dr. Le,
Nurse Teofilo, Nurse Trout, and Nurse Lumitap knew, would
have understood that their actions presented such a substantial
risk of harm to Russell that the failure to act was
unconstitutional. Their actual subjective appreciation of the
risk was not an element of the established-law inquiry.
The panel held that under the circumstances, taking the
facts most favorably to the plaintiffs, Dr. Le, the on-call
physician at the time, could not have reasonably believed
based on the clearly established law as it stood then that he
could provide constitutionally adequate care without even
examining a patient with Russell’s symptoms who had not
responded to a dose of nitroglycerin. Therefore, the district
court was correct in denying summary judgment on qualified
immunity to Dr. Le.
4 RUSSELL V. LUMITAP
The panel held that Nurse Teofilo had access to facts from
which an inference could be drawn that Russell was at serious
risk. Yet she did not call the paramedics, nor did she call
Dr. Le to ask whether Russell’s worsening symptoms
required anything more than the Motrin that had previously
been prescribed. The district court was correct in denying
summary judgment on qualified immunity to Nurse Teofilo.
A reasonable jury could conclude that she met the standard
for deliberate indifference.
The panel held that Nurse Trout was entitled to summary
judgment on qualified immunity. A jury could not, on the
facts pleaded, reasonably conclude that Nurse Trout was
deliberately indifferent. Though perhaps she should have
called the paramedics, her having promptly called the
physician on call and followed his instructions could not be
categorized as deliberate indifference.
The panel held that Nurse Lumitap was not entitled to
qualified immunity. Drawing all inferences in plaintiff’s
favor, a reasonable person in Nurse Lumitap’s position would
have inferred that Russell was at serious risk if not
hospitalized.
COUNSEL
S. Frank Harrell (argued), Lynberg & Watkins APC, Orange,
California, for Defendants-Appellants.
Dale K. Galipo (argued) and Marcel F. Sincich, Law Offices
of Dale K. Galipo, Woodland Hills, California; Cameron
Sehat, The Sehat Law Firm PLC, Irvine, California; for
Plaintiffs-Appellees.
RUSSELL V. LUMITAP 5
OPINION
KLEINFELD, Circuit Judge:
I. Factual Background
On January 8, 2016, Patrick John Russell was arrested for
a probation violation and booked at the Orange County Jail.1
During an initial medical screening, he indicated that he did
not have any of the listed chronic conditions or any other
medical conditions that he wished to disclose.
At around 10:35 p.m. on January 23, 2016, Russell was
seen by Nurse Maria Teofilo. He was hyperventilating,
vomiting, and dry heaving. He told her that he could not
breathe and that he was having an anxiety attack. Nurse
Teofilo gave him Pepto Bismol (or its generic equivalent,
bismuth subsalicylate), but did not notify the doctor on duty
or summon paramedics.
Later that night, at 12:03 a.m. on January 24, 2016,
Russell returned to Nurse Teofilo, now complaining of chest
pain. Russell told her that he believed the pain was muscular
because he had done thirty push-ups the day before. But he
also told her that he was nervous, anxious, and unable to calm
down. He was in distress and unable to express his needs
clearly. Nurse Teofilo advised him on stretching and referred
him to the Intake Release Center for a mental-health
screening.
1
As explained below, at this stage we evaluate the record in the light
most favorable to the plaintiff. Nicholson v. City of Los Angeles, 935 F.3d
685, 690 (9th Cir. 2019). Therefore, where any facts are disputed, we
accept the version most favorable to Russell.
6 RUSSELL V. LUMITAP
At around 1:08 a.m., Russell arrived by bus at the Intake
Release Center and was seen there by Nurse Patti Trout. He
complained to her of continued chest pain, pointing to the
center of his chest and lower portion of his throat, and told
her that the pain was now radiating to his arm and jaw. He
was short of breath and his hands and feet were numb. He
also told her that he had vomited on the bus on the way there.
In response, Nurse Trout gave him a dose of nitroglycerin.
Despite the nitroglycerin, Russell’s severe chest pain
persisted—five minutes after the dose, Russell told Nurse
Trout that the severity of his chest pain was now between 8
and 9 out of 10. He was anxiously wringing his hands and
breathing rapidly, and he vomited again. Nurse Trout
consulted with the on-call physician, Dr. Thomas Le, over the
phone, relaying Russell’s symptoms and informing him that
a dose of nitroglycerin had been ineffective.2 According to
2
There is some inconsistency as to what information Dr. Le was
given when Nurse Trout called. In her contemporaneous notes, Nurse
Trout stated, “5 MIN AFTER NTG WAS GIVEN, IM STATES PAIN IN
CHEST IS BETWEEN 8 AND 9, IM THEN VOMITED INTO TRASH
CAN, WATERY, CLEAR. HR ELEVATED TO 88. POX 100%. SKIN
W/D. COLOR PINK. APPEARS ANXIOUS, WRINGING HANDS
AND BREATHING RAPIDLY. RR 26.” Directly below this description,
she noted that she “NOTIFIED DR. LE OF ABOVE.” In Nurse Trout’s
declaration made on January 3, 2018, she stated that she “reported to
Dr. Le all of the symptoms Russell had been experiencing (complaints of
anxiety and muscle pain from doing push-ups), Russell’s (stable) vital
signs, and that Russell told [her] his pain increased when I applied manual
pressure to his chest and when he took deep breaths.” In Dr. Le’s
declaration, also made on January 3, 2018, he stated that “Nurse [T]rout
reported to [him] all of the symptoms Russell had been experiencing
(complaints of anxiety and muscle pain from doing sit-ups), Russell’s
(stable) vital signs, and that Russell told Nurse Trout that his pain
increased when she applied manual pressure to his chest and when he took
deep breaths.” To the extent that Nurse Trout and Dr. Le’s
RUSSELL V. LUMITAP 7
Orange County Correctional Health Services’ Standardized
Procedures for Registered Nurses that were in place at the
time, the appropriate treatment for acute angina pectoris—
defined as pressure in the chest or precordial discomfort—is
to begin administering nitroglycerin and to then call for
paramedics if symptoms “do not subside after the first dose.”
This is also the first step in the Standardized Procedures for
treating cardiac arrest.
Nevertheless, although Nurse Trout had considered
calling paramedics, Dr. Le ordered that Russell be
administered Motrin (i.e., ibuprofen, a nonsteroidal anti-
inflammatory drug) and be referred for a mental health
evaluation. Though Dr. Le was only a fifteen-minute drive
away, he never physically examined Russell at any time.
At around 1:30 a.m., pursuant to Dr. Le’s orders, Russell
received a mental-health screening from a non-party nurse.
He told the nurse that he was anxious about his potential
prison sentence, that he had never had prior mental health
problems, and that he had a history of daily THC use and
alcohol abuse. The nurse instructed him on breathing and
relaxation exercises and told him how to contact mental
health for further assistance if necessary.
At around 2:04 a.m., Russell returned to the medical ward
complaining to Nurse Teofilo of “flu-like” symptoms. She
declarations—by not referencing any dose of nitroglycerin—conflict with
Nurse Trout’s contemporaneous notes, we are required at this stage to
resolve that factual dispute in favor of Russell. Nicholson, 935 F.3d
at 690. Therefore, we assume for purposes of this decision that Nurse
Trout informed Dr. Le that she had administered a dose of nitroglycerin
to Russell and that this dose did not relieve Russell’s pain.
8 RUSSELL V. LUMITAP
instructed Russell on how to communicate his symptoms to
medical staff and told him to return if necessary.
Around 5:32 a.m., Russell returned to the medical ward
complaining of severe chest pain. The severity of his pain
was now a 10 out of 10, and he was hyperventilating. The
First Amended Complaint states that at this point he was
tachycardic (had a rapid heartbeat). Russell told Nurse
Teofilo that he had been administered a dose of nitroglycerin
but it had not alleviated his pain. Nurse Teofilo knew that,
“per policy,” a patient who has not responded to a dose of
nitroglycerin must be hospitalized. She therefore called
Nurse Trout to ask why Russell had not been hospitalized in
accordance with the Standardized Procedures. Nurse Trout
told her that Dr. Le had simply recommended Motrin and a
mental health screening. Nurse Teofilo considered whether
she should hospitalize Russell, but ultimately decided not to
send for paramedics after speaking with Nurse Trout. Nurse
Teofilo administered a dose of Motrin and Russell remained
in the dispensary for observation.
Around 7:00 a.m., Russell complained of continued chest
pain to Nurse Jocelyn Lumitap. He was now displaying signs
of physical distress. He was sitting hunched over with his
head down and supporting his chest with his hand. He was
worried about his pain and wanted to see the doctor. Instead,
Lumitap instructed Russell on relaxation techniques, gave
him an analgesic heat balm for his chest pain, and told him he
would be checked again after lunch.
At 10:43 a.m., Nurse Lumitap consulted with a non-party
nurse. This non-party nurse advised her to keep on the same
RUSSELL V. LUMITAP 9
course of treatment with Russell.3 She reassured Nurse
Lumitap that Russell would be okay. Nurse Lumitap
speculated that the basis for this reassurance was Russell’s
vital signs and the fact that Dr. Le had already given his
recommendation over six hours earlier.
Around 11:08 a.m., Russell returned to the medical ward
complaining to Nurse Lumitap of deep throbbing pain in the
middle of his chest and throat, with his pain still at a 10 out
of 10. He denied having a heart condition, but said he had
been told he had high blood pressure. He had “flu-like”
symptoms, was hyperventilating, and bent over when he
walked. Russell vomited in front of Nurse Lumitap, and
stated that he felt a bit better but that his chest was still in
pain. He sat on the floor for a few minutes next to a trash bin
and then managed to sit on the chair. He remained in the
ward resting on a patient table. After a brief rest, Russell sat
up around 11:40 a.m. to vomit. He lay down on the floor at
first, but then was able to get back up onto the table.
Finally, at around 12:20 p.m., Nurse Lumitap saw Russell
breathing hard and sitting in an unresponsive state. Russell
was suffering from “agonal”4 breathing, his eyes were
crossed, his skin was pale, he was drooling and sweating
profusely, and he was tachycardic. At this point, Nurse
3
Nurse Lumitap posted the progress note describing her 10:43 a.m.
discussion with another nurse at 3:39 p.m., hours after Russell had died.
It is the last substantive progress note in his chart, and the only progress
note marked as a “LATE ENTRY.”
4
“Agonal” means “Pertaining to the period immediately preceding
death; usually a matter of minutes but occasionally indicating a period of
several hours.” Agonal, Blakiston’s Gould Medical Dictionary (3d ed.
1972).
10 RUSSELL V. LUMITAP
Lumitap called paramedics and helped begin CPR, administer
oxygen, and initiate the Automated External Defibrillator.
Paramedics arrived around 12:28 p.m. and Russell was
transferred to a hospital where he soon died. An autopsy
revealed that he died of hemothorax and hemopericardium,
which means that there was a collection of blood between his
chest wall and his lungs, as well as in the membrane
surrounding his heart. According to the autopsy, these
injuries were caused by an aortic dissection, i.e., a rupture in
a part of Russel’s aorta, the artery that carries blood from the
heart to the rest of the body.
Russell’s parents sued Dr. Le, Nurse Teofilo, Nurse
Trout, and Nurse Lumitap (“the Medical Team”) on behalf of
Russell’s estate and individually for (among other things)
violating his constitutional rights under § 1983 on a theory of
deliberate indifference to his serious medical needs. The
district court below denied the Medical Team’s motion for
summary judgment on qualified immunity and the Medical
Team filed this interlocutory appeal on that issue.
Obviously, on this record as read most favorably to him,
Russell received poor medical care. Dr. Le should have
driven over to see him. The nurses should have made
repeated phone calls to Dr. Le as Russell’s symptoms
worsened. Russell should have been sent to the hospital.
Had all this been done, on this record, he might have lived.
But this is not a medical malpractice case. In a § 1983 case,
we must determine whether the level of medical care was
unconstitutional, not whether it was so substandard that it
may have cost Russell his life.
RUSSELL V. LUMITAP 11
II. The scope of our review
We have jurisdiction to review the denial of qualified
immunity at the summary judgment stage under 21 U.S.C.
§ 1291,5 and we do so de novo.6 However, the scope of
review over such an interlocutory appeal is “circumscribed”
because the Court may not “consider eviden[tiary]
sufficiency, i.e., which facts a party may, or may not, be able
to prove at trial.”7 Therefore, the relevant question is
“whether the defendant[s] would be entitled to qualified
immunity as a matter of law, assuming all factual disputes are
resolved, and all reasonable inferences are drawn, in
plaintiff’s favor.”8
5
Nicholson, 935 F.3d at 690.
6
Roybal v. Toppenish Sch. Dist., 871 F.3d 927, 931 (9th Cir. 2017).
We also GRANT the Medical Team’s motion to strike the Supplemental
Excerpts of Record except for page 64 and the corresponding portions of
Russell’s Answering Brief. The district court declined to receive the
challenged documents because the matter had already been briefed,
argued, and submitted for decision, and because the statements by
Russell’s medical experts did not amount to new evidence. They were not
before the district court when it issued its order denying qualified
immunity to the Medical Team and we therefore do not consider them
here. Kirshner v. Uniden Corp. of Am., 842 F.2d 1074, 1077–78 (9th Cir.
1988); Panaview Door & Window Co. v. Reynolds Metal Co., 255 F.2d
920, 922 (9th Cir. 1958).
7
Nicholson, 935 F.3d at 690 (alteration in original) (internal quotation
marks omitted) (quoting George v. Morris, 736 F.3d 829, 834 (9th Cir.
2013)).
8
Id. (alteration in original) (internal quotation marks omitted)
(quoting Morris, 736 F.3d at 836).
12 RUSSELL V. LUMITAP
Russell argues that this Court lacks jurisdiction over the
Medical Team’s appeal because the district court’s denial of
summary judgment was based on a determination that the
evidence had “two susceptible interpretations, thus it is for a
jury to decide whether Appellants acted with deliberate
indifference.” But in the context of this interlocutory appeal,
the Supreme Court has distinguished between “an appealed
order’s reviewable determination (that a given set of facts
violates clearly established law) from its unreviewable
determination (that an issue of fact is ‘genuine’).”9 Here, the
Medical Team does not challenge the determination that there
are genuine disputes over material facts, but instead argues
that they are nevertheless entitled to qualified immunity
because they did not violate Russell’s clearly established
constitutional rights on the record taken in the light most
favorable to Russell. We do have jurisdiction to decide an
“abstract issue of law,”10 such as whether—assuming all
factual disputes resolved and all reasonable inferences drawn
in a plaintiff’s favor11—the defendants are entitled to
qualified immunity. Therefore, we have jurisdiction to decide
this appeal.12
III. Discussion
Under 42 U.S.C. § 1983, a private right of action exists
against anyone who, “under color of” state law, causes a
9
Johnson v. Jones, 515 U.S. 304, 319 (1995).
10
Behrens v. Pelletier, 516 U.S. 299, 313 (1996).
11
Nicholson, 935 F.3d at 690.
12
Pauluk v. Savage, 836 F.3d 1117, 1121 (9th Cir. 2016).
RUSSELL V. LUMITAP 13
person to be subjected “to the deprivation of any rights,
privileges, or immunities secured by the Constitution and
laws . . . .” However, state officers are entitled to qualified
immunity from a § 1983 suit unless “(1) they violated a
federal statutory or constitutional right, and (2) the
unlawfulness of their conduct was ‘clearly established at the
time.’”13
“[T]he qualified immunity inquiry is separate from the
constitutional inquiry, and courts must undertake the
qualified immunity analysis separately.”14 We review de
novo,15 so we undertake the qualified immunity inquiry
below.
A. Defining “clearly established” law
The Supreme Court has admonished us “not to define
clearly established law at a high level of generality.”16 While
there need not exist “a case directly on point for a right to be
clearly established, existing precedent must have placed the
. . . constitutional question beyond debate.”17 “The precedent
13
District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (quoting
Reichle v. Howards, 566 U.S. 658, 664 (2012)).
14
Estate of Ford v. Ramirez-Palmer, 301 F.3d 1043, 1053 (9th Cir.
2002).
15
Roybal, 871 F.3d at 931.
16
Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (internal quotation
marks omitted) (quoting City & Cnty. of San Francisco v. Sheehan,
575 U.S. 600, 613 (2015)).
17
Id. (internal quotation marks omitted) (quoting White v. Pauly,
137 S. Ct. 548, 551 (2017)).
14 RUSSELL V. LUMITAP
must be “‘controlling’—from the Ninth Circuit or the
Supreme Court—or otherwise be embraced by a ‘consensus’
of courts outside the relevant jurisdiction.”18 However, cases
decided after the alleged constitutional violation cannot create
clearly established law for purposes of this prong because
reasonable officers are “not required to foresee judicial
decisions that do not yet exist in instances where the
[constitutional] requirements . . . are far from obvious.”19
“That is not to say that an official action is protected by
qualified immunity unless the very action in question has
previously been held unlawful.”20 It is not necessary to have
a case involving a heart attack, a case involving appendicitis,
or a case involving a bowel obstruction for a § 1983 claim
based on one of those conditions to survive qualified
immunity. Instead, a “clearly established right is one that is
sufficiently clear that every reasonable official would have
understood that what he is doing violates that right.”21
“[G]eneral statements of the law are not inherently incapable
of giving fair and clear warning to officers.”22 “[T]here can
be the rare obvious case, where the unlawfulness of the
18
Martinez v. City of Clovis, 943 F.3d 1260, 1275 (9th Cir. 2019)
(internal quotation marks omitted) (quoting Sharp v. Cnty. of Orange,
871 F.3d 901, 911 (9th Cir. 2017)).
19
Kisela, 138 S. Ct. at 1154.
20
Anderson v. Creighton, 483 U.S. 635, 640 (1987).
21
Horton by Horton v. City of Santa Maria, 915 F.3d 592, 599 (9th
Cir. 2019) (internal quotation marks omitted) (quoting Isayeva v.
Sacramento Sheriff’s Dep’t, 872 F.3d 938, 946 (9th Cir. 2017)).
22
Kisela, 138 S. Ct. at 1153 (internal quotation marks omitted)
(quoting White, 137 S. Ct. at 552).
RUSSELL V. LUMITAP 15
officer’s conduct is sufficiently clear even though existing
precedent does not address similar concerns.”23
B. The government’s obligation to provide pretrial
detainees with adequate medical care
In 1976, the Supreme Court first recognized “the
government’s obligation to provide medical care for those
whom it is punishing by incarceration.”24 On that reasoning,
it held that “deliberate indifference to serious medical needs
of prisoners” violates the Eighth Amendment’s prohibition on
cruel and unusual punishment.25 We concluded that the same
standard should also apply to such claims brought by pretrial
detainees, because even though those claims “arise under the
due process clause [of the Fourteenth Amendment], the
eighth amendment 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.”26 At the time of Russell’s death, our decision in
Clouthier v. County of Contra Costa27 provided the standard
according to which “all conditions of confinement claims,
23
City of Escondido v. Emmons, 139 S. Ct. 500, 504 (2019) (quoting
Wesby, 138 S. Ct. at 590).
24
Estelle v. Gamble, 429 U.S. 97, 103 (1976).
25
Id. at 104.
26
Carnell v. Grimm, 74 F.3d 977, 979 (9th Cir. 1996) (emphasis and
alterations in original) (internal quotation marks omitted) (quoting Jones
v. Johnson, 781 F.2d 769, 771 (9th Cir. 1986)).
27
591 F.3d 1232 (9th Cir. 2010), overruled by Castro v. Cnty. of Los
Angeles, 833 F.3d 1060 (9th Cir. 2016) (en banc).
16 RUSSELL V. LUMITAP
including claims for inadequate medical care, were analyzed
. . . .”28 Under Clouthier, the deliberate-indifference analysis
turned on two separate issues: “(1) whether [the plaintiff] was
confined under conditions posing a ‘substantial risk of serious
harm’ and (2) whether the officers were deliberately
indifferent to that risk.”29
However, the standard governing claims for inadequate
medical care has changed since Russell’s death. After our
decision in Clouthier, the Supreme Court cautioned in
Kingsley v. Hendrickson30 that claims brought by pretrial
detainees under the Fourteenth Amendment should not
necessarily be evaluated under the same standard as claims
brought by convicted prisoners under the Eighth
Amendment.31 Kingsley addressed a claim brought by a
pretrial detainee that jail officers had used excessive force
against him.32 The Court held that a defendant bringing such
a claim need not show subjective deliberate indifference; he
need only demonstrate “that the force purposely or knowingly
used against him was objectively unreasonable.”33
28
Gordon v. Cnty. of Orange, 888 F.3d 1118, 1122 (9th Cir. 2018).
29
591 F.3d at 1244 (quoting Lolli v. Cnty. of Orange, 351 F.3d 410,
420 (9th Cir. 2003)).
30
576 U.S. 389 (2015).
31
Id. at 400–01.
32
Id. at 391.
33
Id. at 397.
RUSSELL V. LUMITAP 17
In Gordon v. County of Orange, we extended the Supreme
Court’s reasoning in Kingsley to claims for inadequate
medical care brought by pretrial detainees.34 Under Gordon,
a pretrial detainee who brings an inadequate medical care
claim must show that:
(i) the defendant made an intentional decision
with respect to the conditions under which the
plaintiff was confined;
(ii) those conditions put the plaintiff at
substantial risk of suffering serious harm;
(iii) the defendant did not take reasonable
available measures to abate that risk, even
though a reasonable official in the
circumstances would have appreciated the
high degree of risk involved—making the
consequences of the defendant’s conduct
obvious; and
(iv) by not taking such measures, the
defendant caused the plaintiff's injuries.35
Thus the subjective second prong of Clouthier has been
replaced by an objective standard: A defendant can be liable
even if he did not actually draw the inference that the plaintiff
was at a substantial risk of suffering serious harm, so long as
a reasonable official in his circumstances would have drawn
that inference. Under this objective reasonableness standard,
34
888 F.3d 1118, 1124–25 (9th Cir. 2018).
35
Id. at 1125.
18 RUSSELL V. LUMITAP
a plaintiff must “prove more than negligence but less than
subjective intent—something akin to reckless disregard.”36
C. Substantial risk of serious harm
Gordon did not revise the “substantial risk of serious
harm” prong from Clouthier, and the law at the time of
Russell’s death clearly established that Russell’s conditions
put him at a substantial risk of serious harm. In the
inadequate-medical-care context, the “substantial risk of
serious harm” prong was met if there was a “serious medical
need,” such that a “failure to treat a prisoner’s condition
could result in further significant injury or the unnecessary
and wanton infliction of pain.”37 This is an objective
standard, and includes the “existence of an injury that a
reasonable doctor or patient would find important and worthy
of comment or treatment; the presence of a medical condition
that significantly affects an individual’s daily activities; or the
existence of chronic and substantial pain.”38
As the district court noted, Russell’s aortic dissection was
indeed a “serious” medical need, as it resulted in his death.
The Medical Team argues that, for this prong of the
inadequate medical care test, we should only consider the
36
Id. (quoting Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1071
(9th Cir. 2016)).
37
Peralta v. Dillard, 744 F.3d 1076, 1086 (9th Cir. 2014) (en banc)
(quoting Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006)).
38
Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014) (internal
quotation marks omitted) (quoting McGuckin v. Smith, 974 F.2d 1050,
1059–60 (9th Cir. 1992), overruled in part on other grounds by WMX
Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc)).
RUSSELL V. LUMITAP 19
symptoms Russell was experiencing before he died rather
than asking whether an aortic dissection itself constitutes a
serious medical need. Even assuming we limited the scope
of this test in this manner, Russell’s symptoms—including
hyperventilation, vomiting, dry heaving, difficulty breathing,
severe chest pain radiating to his arm and jaw, numbness in
his hands and feet, and tachycardia—are medical issues “that
a reasonable doctor or patient would find important and
worthy of comment or treatment . . . .”39 This prong was
therefore satisfied.
D. Objective indifference
The primary issue in this case is the third prong of the
Gordon test. As we explained, the subjective deliberate
indifference prong of the Clouthier test that governed
inadequate medical care claims at the time of Russell’s death
has since been replaced by Gordon’s objective prong. An
officer is entitled to qualified immunity unless the
unlawfulness of his conduct was clearly established at the
time that he acted,40 and the law at the time that the
defendants acted was different than it is now. However, we
held in Sandoval v. County of San Diego that “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 . . . ‘concentrate on the objective
aspects of the [pre-Gordon] constitutional standard’ to
39
Colwell, 763 F.3d at 1066 (internal quotation marks omitted)
(quoting McGuckin, 974 F.2d at 1059–60, overruled in part on other
grounds by WMX Techs., 104 F.3d at 1136).
40
Wesby, 138 S. Ct. at 589 (quoting Reichle v. Howards, 566 U.S.
658, 664 (2012)).
20 RUSSELL V. LUMITAP
evaluate whether the law was clearly established.”41 “[T]he
objective deliberate indifference standard applies even when
the incident occurred pre-Gordon.”42 Thus, to determine
whether the defendants are entitled to qualified immunity, we
do not consider whether they subjectively understood that
Russell faced a substantial risk of serious harm.43 Rather, we
conduct “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.”44
Applying Sandoval’s approach here, to defeat qualified
immunity the plaintiffs must show that, given the available
case law at the time, a reasonable official, knowing what
Dr. Le, Nurse Teofilo, Nurse Trout, and Nurse Lumitap
knew, would have understood that their actions “presented
such a substantial risk of harm to [Russell] that the failure to
act was unconstitutional.”45 Their “actual subjective
appreciation of the risk is not an element of the established-
law inquiry.”46
41
985 F.3d 657, 672 (9th Cir. 2021).
42
Id. at 674.
43
See id. at 676–78.
44
Id. at 678 (citing Horton, 915 F.3d at 600–02) (emphasis in
original).
45
Id. (quoting Horton, 915 F.3d at 600).
46
Id. We do not suggest that the outcome in this case turns on the
“objective” test, nor do we exclude the possibility that the old “subjective”
standard would lead to a different outcome.
RUSSELL V. LUMITAP 21
To show that an official’s failure to act was
unconstitutional, a plaintiff need not “prove complete failure
to treat” because “access to medical staff is meaningless
unless that staff is competent and can render competent
care.”47 And there is no reason to doubt that, although
medical negligence is not by itself unconstitutional, the care
rendered can be so inadequate to the circumstances known to
the medical staff as to amount to deliberate indifference. By
the time of Russell’s death, we had reversed a grant of
summary judgment in favor of three nurses and a doctor who
failed to adequately care for a pretrial detainee who had
suffered a head injury.48 Instead of calling the emergency
room when the detainee began to exhibit symptoms of serious
complications from a head injury, the doctor prescribed
sedatives which masked the symptoms of the complications.49
Even though they did provide treatment, the record permitted
the inference that the treatment they provided was
constitutionally defective, and summary judgment in their
favor was therefore inappropriate.50
We have recognized that “failing to provide CPR or other
life-saving measures to an inmate in obvious need can
47
Ortiz v. Imperial, 884 F.2d 1312, 1314 (9th Cir. 1989) (internal
quotation marks omitted) (quoting Cabrales v. Cnty. of Los Angeles,
864 F.2d 1454, 1461 (9th Cir. 1988)).
48
See id. at 1313–14.
49
See id.50
See id. at 1314.
22 RUSSELL V. LUMITAP
provide the basis for liability under § 1983.”51 For example,
we have found that officers were not entitled to summary
judgment on liability where they discovered an inmate
unconscious after a suicide attempt and failed to administer
CPR “despite an obvious need.”52 And we have found that
nurses were not entitled to summary judgment on qualified
immunity where they failed to call paramedics to assist an
inmate who was unresponsive and having a seizure, because
it was clearly established that “every reasonable nurse” would
have understood that paramedics were necessary in such a
situation.53
While we need not point to cases dealing with the specific
type of cardiac symptoms Russell displayed, aortic dissection,
it is worth noting that by the time of Russell’s death, some of
our sister Circuits had dealt with the law as applied to such a
situation. The Eighth Circuit, for example, held that the
deliberate indifference standard was satisfied by a delay in
treatment for an inmate with a history of heart problems who
displayed “classic heart attack symptoms” that were
“obviously severe,” including arm and chest pains, profuse
sweating, and nausea.54 In another decision, the Eighth
Circuit had also concluded that the standard was met where
prison officials began CPR in response to an inmate’s heart
attack but then halted treatment for up to ten minutes “with
51
Lemire v. California Dep’t of Corr. & Rehab., 726 F.3d 1062, 1082
(9th Cir. 2013).
52
Id. at 1083.
53
Sandoval, 985 F.3d at 679.
54
Plemmons v. Roberts, 439 F.3d 818, 823–25 (8th Cir. 2006).
RUSSELL V. LUMITAP 23
no good or apparent explanation for the delay . . . .”55
Similarly, the Sixth Circuit held that the deliberate
indifference standard was met where an official delayed
transportation to a hospital for a detainee who had not taken
what an officer believed was her heart medication for three
days and who was displaying “classic” signs of an impending
heart attack such as chest pain and difficulty breathing. 56
1. Dr. Le
After Nurse Trout administered a dose of nitroglycerin to
Russell and it failed to alleviate his symptoms, she called
Dr. Le, the on-call physician at the time. According to Nurse
Trout’s notes in Russell’s medical record, she told Dr. Le that
she had administered a dose of nitroglycerin but that Russell
was still experiencing chest pain, vomiting, and rapid
breathing, and that he appeared anxious.
In response to Nurse Trout’s report of Russell’s
symptoms, Dr. Le merely recommended Motrin and a mental-
health screening over the phone. He did not recommend
hospitalization after learning that the first dose of
nitroglycerin had been ineffective, nor did he ever physically
examine Russell, even though he lived only fifteen minutes
away. Dr. Le did not give any specific explanation for why
he chose to diagnose Russell over the phone rather than in
person, simply stating that “[w]e do that all the time” and
“[t]hat’s the standard of care nowadays.”
55
Tlamka v. Serrell, 244 F.3d 628, 632–35 (8th Cir. 2001).
56
Estate of Carter v. Detroit, 408 F.3d 305, 312–13 (6th Cir. 2005).
24 RUSSELL V. LUMITAP
While of course there is no § 1983 liability for simply
acting contrary to prison policy,57 the Correctional Health
Services Standardized Procedures for Registered Nurses help
to underscore that Dr. Le, and the other members of the
medical team, had access to facts from which a reasonable
person would infer that Russell was at serious medical risk.
Nurse Trout administered nitroglycerin to Russell around
1:08 a.m. on January 24, but Russell’s chest pain did not
subside. According to the Standardized Procedures, a nurse
who administers nitroglycerin for chest pain must call for
paramedics if symptoms “do not subside after the first dose.”
The record does not explain why the procedure demands such
an urgent response to an ineffective dose of nitroglycerin.
But drawing all reasonable inferences in favor of Russell—as
we must at this stage—we are compelled to infer that a
patient whose chest pain does not subside after one dose of
nitroglycerin is known to the prison system to be at a
substantial risk of harm. Therefore, each medical
professional who knew that Russell had been administered an
ineffective dose of nitroglycerin had facts available from
which a reasonable person would infer that he was at
substantial risk of harm if not hospitalized. And he steadily
grew worse instead of better. As the night went on, by
5:32 a.m., Russell was obviously much sicker than at
1:08 a.m. and obviously in a life-threatening medical
condition.
Like the plaintiffs in Plemmons, Tlamka, and Estate of
Carter, Russell was displaying “classic” and “obviously
57
Case v. Kitsap Cnty. Sheriff’s Dep’t, 249 F.3d 921, 929–30 (9th Cir.
2001).
RUSSELL V. LUMITAP 25
severe”58 symptoms of a heart attack. And like the officials
in Tlamka, Dr. Le and the nurses halted treatment “with no
good or apparent explanation for the delay . . . .”59 Dr. Le
knew that the intervention plan under the Standardized
Procedures for angina pectoris had been initiated when
Russell was given a first dose of nitroglycerin, yet he did not
recommend continuing this line of treatment—which called
for the administration of up to two more doses of
nitroglycerin within as little as five minutes after the first
dose, and hospitalization.
As in Clouthier, it should have been clear to Dr. Le that
Russell was at severe risk based on Nurse Trout’s call
relaying his symptoms and the recommendation of the
Standardized Procedures to hospitalize Russell under these
circumstances.60 Unlike Simmons, it is reasonable to infer—
and so, again, at this stage we must61—that a reasonable
person in Dr. Le’s position would have been aware that the
risk to Russell was “imminent”62 due to the severity and
58
Tlamka, 244 F.3d at 632–35; Estate of Carter, 408 F.3d at 312–13;
Plemmons, 439 F.3d at 823–25.
59
Tlamka, 244 F.3d at 635.
60
Clouthier, 591 F.3d at 1244.
61
Nicholson, 935 F.3d at 690.
62
Simmons v. Navajo Cnty., 609 F.3d 1011, 1018 (9th Cir. 2010)
(internal quotation marks omitted) (emphasis in original) (quoting
Collignon v. Milwaukee Cnty., 163 F.3d 982, 990 (9th Cir. 1998)),
overruled in part by Castro v. Cnty. of Los Angeles, 833 F.3d 1060 (9th
Cir. 2016) (en banc).
26 RUSSELL V. LUMITAP
nature of the symptoms and the “obvious”63 nature of the risk,
as demonstrated in part by the fact that the Standardized
Procedures called for an immediate call to paramedics under
these circumstances.
Nevertheless, without explanation or examination, Dr. Le
did not recommend that Nurse Trout conform her treatment
to the Standardized Procedures. As in Ortiz, Dr. Le made his
recommendation without examining his patient despite his
knowledge of Russell’s ominous symptoms, and disregarded
a clear signal—the ineffectiveness of the dose of
nitroglycerin—that Russell’s condition was potentially fatal.64
While Dr. Le recommended Motrin and a mental-health
screening, clearly established law at the time provided that
Russell need not “prove complete failure to treat” because
“access to medical staff is meaningless unless that staff is
competent and can render competent care.”65 A reasonable
jury could conclude that Dr. Le had been deliberately
indifferent.
Under these circumstances, taking the facts most
favorably to the plaintiffs, Dr. Le could not have reasonably
believed based on the clearly established law as it stood then
that he could provide constitutionally adequate care without
even examining a patient with Russell’s symptoms who had
not responded to a dose of nitroglycerin. Therefore, the
63
Farmer v. Brennan, 511 U.S. 825, 842 (1994).
64
Ortiz, 884 F.2d at 1313–14.
65
Id. at 1314 (9th Cir. 1989) (quoting Cabrales, 864 F.2d at 1461)
(internal quotation marks omitted).
RUSSELL V. LUMITAP 27
district court was correct in denying summary judgment on
qualified immunity to Dr. Le.
2. Nurse Teofilo
Nurse Teofilo interacted with Russell four times between
around 10:35 p.m. on January 23 and around 5:32 a.m. on
January 24. During Russell’s first visit with Nurse Teofilo at
10:35 p.m., he told her that he was having an anxiety attack
and could not breathe, and she gave him Pepto Bismol. He
returned to her a few hours later, at around 12:03 a.m., and
told her he believed the pain was muscular because he had
done thirty push-ups the day before. Nurse Trout gave
Russell a dose of nitroglycerin at around 1:08 a.m., and Nurse
Teofilo saw him twice after that: he complained to her of flu-
like symptoms at around 2:04 a.m., and he returned once
more with chest pain at around 5:32 a.m., at which point she
administered a dose of Motrin. During these interactions,
Russell showed worsening symptoms including
hyperventilation, vomiting, dry heaving, severe chest pain,
anxiety, an inability to express his needs clearly, flu-like
symptoms, labored breathing, and tachycardia.
As described above, each member of the Medical Team,
including Nurse Teofilo, had access to facts from which an
inference could be drawn that Russell was at serious risk.
There is also evidence that Nurse Teofilo actually drew that
inference—when Russell complained to her of flu-like
symptoms at around 2:04 a.m., she reached out to Nurse
Trout to ask why Russell had not been hospitalized in
accordance with policy after he failed to respond to
nitroglycerine. Nurse Teofilo learned from Nurse Trout that
Dr. Le had only recommended Motrin and a mental health
evaluation, and her subsequent decisions were made in
28 RUSSELL V. LUMITAP
reliance on Dr. Le’s recommendation. But the call to Dr. Le
had been made over four hours earlier, and Russell’s
symptoms had become far more serious. Yet, Nurse Teofilo
did not call paramedics, nor did she call Dr. Le to ask whether
the far more severe symptoms required anything more than
the Motrin he had previously prescribed. The district court
was correct in denying summary judgment on qualified
immunity to Nurse Teofilo. A reasonable jury could
conclude that she met the standard for deliberate indifference.
3. Nurse Trout
Nurse Trout, though, is entitled to summary judgment on
qualified immunity. When Nurse Trout saw Russell at
around 1:08 a.m., she was aware that Russell was
experiencing symptoms including nausea, vomiting, anxiety,
rapid breathing, numbness in his hands and feet, and chest
pain radiating to his arm and jaw. After she gave Russell a
dose of nitroglycerin and his chest pain persisted, a
reasonable person in her circumstances would have inferred
that Russell was at serious risk if not hospitalized.
However, when Nurse Trout called Dr. Le and told him
all of the symptoms that Russell had been experiencing,
Dr. Le did not recommend hospitalizing him. Even though
Russell was experiencing classic symptoms of a heart attack,
Dr. Le recommended Motrin and a mental-health screening.
No clearly established law would have put a reasonable nurse
in Nurse Trout’s position on notice that she could violate
Russell’s constitutional rights even while relying on Dr. Le’s
evaluation and recommendation. Therefore, Nurse Trout is
entitled to summary judgment on qualified immunity. A jury
could not, on the facts pleaded, reasonably conclude that
Nurse Trout was deliberately indifferent. Though perhaps
RUSSELL V. LUMITAP 29
she should have called paramedics, her having promptly
called the physician on call and followed his instructions
cannot be categorized as deliberate indifference.
4. Nurse Lumitap
Nurse Lumitap was responsible for Russell’s care from
around 7:00 a.m. until 12:20 p.m. on January 24. She was
aware of all of the symptoms observed and recorded by
Nurses Teofilo and Trout,66 and, before Russell became
unresponsive at 12:20 p.m., she personally observed him
experiencing even more severe symptoms including
vomiting, signs of physical distress such as hunching over
and grasping his chest, fear about his condition, and deep
throbbing pain in the middle of his chest and throat. At
around 11:08 a.m. on January 24, Russell told her he had
been diagnosed with high blood pressure in the past. She was
also aware that Russell had been administered an ineffective
dose of nitroglycerin. Drawing all inferences in plaintiff’s
favor, a reasonable person in Nurse Lumitap’s position would
have inferred that Russell was at serious risk if not
hospitalized. By the time she came on duty at 7:00 am,
Dr. Le’s advice was 5 ½ hours old and Russell’s symptoms
were much worse than when Dr. Le had been called.
The record shows that, like Nurses Teofilo and Trout,
Nurse Lumitap knew that Dr. Le had evaluated Russell over
the phone and had not recommended hospitalization.
However, Nurse Lumitap was responsible for Russell’s care
from around 7:00 am until 12:20 pm, between 5 ½ to
66
Nurse Lumitap testified that she knew of the other nurses’
assessments of Russell when she was evaluating his symptoms, and a jury
could reasonably infer that she had read through their medical notes.
30 RUSSELL V. LUMITAP
11 hours after Dr. Le had made his recommendation to
administer Motrin. A reasonable factfinder could conclude
that, after so much time had elapsed, and in the face of
Russell’s rapidly deteriorating condition, Nurse Lumitap was
no longer in a position to reasonably rely on Dr. Le’s
recommendation from the night before without calling him
again. She did not call for paramedics until Russell was
unresponsive, and at no point did she call Dr. Le or any other
physician for an updated recommendation in light of
Russell’s worsening symptoms. Her decision not to call
Dr. Le (or whichever physician was then on call) at any point
during that period suffices to raise a genuine dispute over
whether it was clearly established that the care she provided
was constitutionally adequate. Therefore, the district court
was correct in denying qualified immunity to Nurse Lumitap.
* * *
Although Nurse Trout is shielded by qualified immunity
because her actions did not violate then-existing clearly
established law, there is at least a genuine dispute of material
fact over whether Dr. Le’s and Nurses Teofilo’s and
Lumitap’s conduct violated clearly established law as it then
stood. Therefore, we reverse the district court’s denial of
qualified immunity to Nurse Trout, and we affirm its denial
of qualified immunity to Dr. Le and Nurses Teofilo and
Lumitap.
AFFIRMED in part, REVERSED in part, and
REMANDED. Costs to be awarded in favor of plaintiffs-
appellees.