United States District Court, N.D. California
PRETRIAL ORDER NO. 4 REGARDING LEGAL STANDARD FOR
CONSTITUTIONAL CLAIM RE: MEDICAL CARE
GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE.
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.
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 the Fourteenth Amendment's
“deliberate indifference” standard. (Id.
at 27-28.) The parties previously presented the issue of
whether plaintiff's denial of medical care claim is
governed by the Fourth or Fourteen Amendment in their briefs
filed in connection with defendant's motion for summary
judgment. (Dkt. Nos. 67, 78, 94.) The Court requested
additional briefing on this issue, which the parties
provided. (Dkt. Nos. 101, 102.) In granting in part and
denying in part defendant's motion for summary judgment,
the Court held that it was “not necessary at [that]
juncture to decide whether Borges had a Fourth Amendment
right to medical care, rather than just a Fourteenth
Amendment right.” (Dkt. No. 121). It is now
necessary to determine the constitutional basis and standard
of care which apply to Borges' right to medical care.
Constitutional Basis for Right to Medical Care While in
Ninth Circuit analyzes alleged violations of the right to
adequate medical care while in custody under the due process
clause of the Fourteenth Amendment. Gibson v. County of
Washoe, Nev. 290 F.3d 1175, 1187-88, 1196-97 (9th Cir.
2012) overruled on other grounds, Castro v.
County of Los Angeles, 833 F.3d 1060, 1076 (9th Cir.
2016) (en banc). In Gibson, the Court
determined that plaintiff's constitutional right to
medical care while in custody “derive[s] from the due
process clause” and supports an “established
right not to have officials remain deliberately indifferent
to their serious medical needs.” Id. at 1187.
following year, the Ninth Circuit reaffirmed that
“failure to provide care for serious medical needs,
when brought by a detainee . . . who has been neither charged
nor convicted of a crime, are analyzed under the substantive
due process clause of the Fourteenth Amendment.”
Lolli v. County of Orange, 351 F.3d 410,
418-19 (9th Cir. 2003). The Lolli Court
distinguished Pierce v. Multnomah County, 76 F.3d
1032, 1043 (9th Cir. 1996), which held that “the Fourth
Amendment sets the applicable constitutional limitations on
the treatment of an arrestee detained without a warrant,
” id., on the ground that “[a]lthough
the Fourth Amendment provides the proper framework for 
excessive force claim[s], it does not govern  medical needs
claim[s].” Lolli, 351 F.3d 418-419. (Internal
citation omitted.) The Court proceeded to apply the
substantive due process “deliberate indifference”
standard to plaintiff's claim for denial of adequate
medical care related to plaintiff's diabetes.
Id. at 418-20.
district courts have followed Gibson and
Lolli in holding that “[c]laims of failure to
provide care for serious medical needs, when brought by a
prearraigment detainee . . . who has neither been charged nor
convicted of a crime, are analyzed under the substantive due
process clause of the Fourteenth Amendment.”
Dennison v. Lane, 2013 WL432935 *6 (N.D.Cal. 2013)
(quoting Gibson, 290 F.3d at 1187); see also
M.H. v. Country of Alameda, 62 F.Supp.3d 1049 at 1076
(N.D. Cal. 2014) (holding that pre-trial detainee's right
to adequate medical care “derived from the Due Process
clause”); Frary v. County of Marin, 81,
F.Supp.3d 811, 823-24 (N.D.Cal. 2015) (same); Weaver v.
City and County of San Francisco, 2016 WL 913372 at *7
(N.D. Cal. 2016) (pre-trial detainee's “right to
adequate medical treatment is guaranteed by the Fourteenth
Amendment's Due Process Clause”); Green v.
County of Sacramento, 2016 WL 374561 at *10 (applying
Fourteenth Amendment framework to claim that defendant
officers delayed plaintiff's access to medical care).
Court concurs and finds that plaintiff's claim for denial
of medical care by the County officers who detained Borges in
the sobering cell after he was brought to the County jail is
governed by the Fourteenth Amendment.
primary reliance on Pierce and Tatum v. City
& County of San Francisco, 441 F.3d 1090, 1097-99
(9th Cir. 2006), in arguing that plaintiff's medical care
claim derives from the Fourth Amendment, does not ultimately
persuade in light of the Ninth Circuit's holding in
Lolli, which specifically contrasted Pierce
in distinguishing excessive force from medical needs claims.
See Lolli, 351 F.3d 418-419. Similarly,
Tatum involved an excessive force claim brought by a
decadent's mother against arresting offices, supervising
offices, and the City and County of San Francisco seeking
damages for wrongful death and other torts under California
law and 42 U.S.C. 1983. Tatum, 441 F.3d. at
1093. There, decedent struggled with arresting officers and
was forced to the ground and handcuffed. Id. After
decedent's breathing became shallow, the officers called
an ambulance but did not perform cardiopulmonary respiration
(CPR). Plaintiff alleged claims for false arrest and
excessive force. Id. at 1093. As in Pierce,
plaintiff did allege failure to provide adequate medical care
while in custody. Rather, plaintiff alleged that the
arresting officers' failure to perform CPR following the
arrest constituted excessive force. Id. at 1097.
Nowhere does the 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, Lolli, or a Fourth Amendment right
to medical care. The out-of-circuit cases cited by
plaintiffs are similarly not apt.
the Court finds that plaintiff's medical care claim is
governed by the Fourteenth Amendment.
Fourteenth Amendment Standard Governing Right to Medical Care
the Fourteenth Amendment governs plaintiff's medical
needs claim, the Ninth Circuit's holding in Castro v.
County of Los Angeles, 833 F.3d 1060, raises serious
questions as to whether application of the Fourteenth
Amendment “subjective” deliberate indifference
standard articulated in Gibson and Lolli is
proper here. Castro analyzed a Fourteenth Amendment
claim against officers who failed to prevent an attack
against a pretrial detainee by another inmate with whom he
was jailed. The Castro court announced a new,
objective “deliberate indifference” standard for
analyzing a pretrial detainee's