J. J. v. City of San Diego ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
J. K. J., individually, and successor No. 20-55622
in interest to the Deceased Aleah
Jenkins, by and through his D.C. No.
guardian-ad-litem Jeremy Hillyer, 3:19-cv-02123-
Plaintiff-Appellant, CAB-RBB
v.
ORDER AND
CITY OF SAN DIEGO, a public entity; AMENDED
DAVID NISLET, in his individual OPINION
capacity and official capacity as
Police Chief of the San Diego Police
Department; LAWRENCE DURBIN, an
individual; JASON TAUB, an
individual; DOES, 1–10, Inclusive,
Defendants-Appellees,
and
NICHOLAS CASICOLA,
Defendant.
Appeal from the United States District Court
for the Southern District of California
Cathy Ann Bencivengo, District Judge, Presiding
Argued and Submitted July 6, 2021
Pasadena, California
2 J. K. J. V. CITY OF SAN DIEGO
Filed November 15, 2021
Amended August 2, 2022
Before: D. Michael Fisher, * Paul J. Watford, and
Patrick J. Bumatay, Circuit Judges.
Order;
Opinion by Judge Fisher;
Dissent by Judge Watford
SUMMARY **
Civil Rights
The panel filed (1) an order granting a petition for
rehearing, denying as moot a petition for rehearing en banc,
and amending the prior opinion and dissent; and (2) an
amended opinion affirming the district court’s dismissal of
an action brought pursuant to 42 U.S.C. § 1983 alleging
constitutional violations by police officers in their treatment
of Aleah Jenkins, who was arrested at a traffic stop, fell ill
while in police custody, and died nine days later.
When officers discovered, after stopping the car, that
Jenkins was subject to arrest based on a warrant involving a
prior methamphetamine offense, they handcuffed her and
put her in defendant Durbin’s cruiser. Inside the cruiser,
*
The Honorable D. Michael Fisher, United States Circuit Judge for
the U.S. Court of Appeals for the Third Circuit, 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.
J. K. J. V. CITY OF SAN DIEGO 3
Jenkins vomited, and defendant Taub called for paramedics
but cancelled the call after Jenkins said she was pregnant and
not detoxing. On several occasions during the transport to
the police station, Jenkins groaned and screamed for help.
After fingerprinting Jenkins at the police station, as she lay
on her side, defendants placed her back in the cruiser. About
eleven and a half minutes later they found her unconscious,
called for paramedics, and began CPR. Jenkins fell into a
coma and died nine days later.
The panel first held that the district court validly
exercised its discretion in choosing to review a bodycam
video that plaintiff had incorporated by reference into the
amended complaint. Second, the district court did not assign
the video too much weight. Lastly, to the extent the district
court found that the video contradicted anything in the
amended complaint, it rejected plaintiff’s conclusory
allegations regarding whether the officers’ conduct met the
legal standard of a constitutional violation.
The panel held that the district court did not err in
dismissing the amended complaint. Addressing the
municipal liability claim brought under Monell v. Dep’t of
Soc. Servs. of City of New York, 436 U.S. 658, 690 (1978),
the panel held that the complaint did not plausibly allege that
any City policy or custom “was the moving force” behind
the constitutional violations Jenkins allegedly suffered.
Rather the allegations suggested that that the moving force
behind the alleged constitutional violation was not a failure
to train, but the officers’ failure to heed their training.
The panel held that the alleged violative nature of the
officers’ conduct, in failing to recognize and respond to
Jenkins’ serious medical need, was not clearly established in
the specific context of this case. None of the cases cited by
4 J. K. J. V. CITY OF SAN DIEGO
Jenkins presented circumstances where an officer had to
grapple with how to handle a detainee who exhibited signs
of medical distress but explained them away. Defendants
therefore did not violate clearly established law and were
entitled to qualified immunity under the second prong of the
qualified immunity test.
Dissenting in part, Judge Watford stated that the majority
opinion offered a truncated and highly sanitized account of
the events giving rise to this lawsuit, at least as alleged by
the plaintiff. Although at this stage of the case the panel was
required to accept the plaintiff’s factual allegations as true,
the majority opinion ignored most of the facts alleged in the
complaint. The complaint also expressly incorporated by
reference the contents of a publicly available body camera
video that captures many of the relevant events, yet the
majority opinion turned a blind eye to most of what that
video depicted as well. The plaintiff’s complaint plausibly
alleged that Jenkins, a young African-American woman,
died in police custody because the officer responsible for
transporting her to police headquarters took no action when
she experienced an acute medical emergency. Judge
Watford would reverse the district court’s dismissal of the
claims against Officer Durbin and remand for further
proceedings.
J. K. J. V. CITY OF SAN DIEGO 5
COUNSEL
Kaveh Navab (argued), Navab Law APC, Marina Del Rey,
California, for Plaintiff-Appellant.
Seetal Tejura (argued), Chief Deputy City Attorney; George
F. Schaefer, Assistant City Attorney; Mara W. Elliott, City
Attorney; Office of the City Attorney, San Diego, California;
for Defendants-Appellees.
ORDER
The panel unanimously votes to GRANT the petition for
panel rehearing filed December 13, 2021. The opinion filed
November 15, 2021, and appearing at 17 F.4th 1247, is
amended by the opinion filed concurrently with this order.
Judge Watford’s dissent is also amended by the dissent filed
concurrently with this order. Because we grant the petition
for panel rehearing, the petition for rehearing en banc is
moot. Further petitions for rehearing en banc may be filed.
OPINION
D.M. FISHER, Circuit Judge:
Aleah Jenkins was arrested at a traffic stop and fell ill in
police custody. Tragically, she died nine days later. Her
minor son, J.K.J., brought constitutional claims against the
City of San Diego and two officers who participated in the
traffic stop. The District Court dismissed J.K.J.’s amended
complaint with prejudice. Because we conclude the officers
did not violate clearly established law and thus are protected
by qualified immunity, we affirm.
6 J. K. J. V. CITY OF SAN DIEGO
BACKGROUND
I. Factual History
We accept as true all factual allegations in the amended
complaint, construing them in the light most favorable to
J.K.J., the non-moving party. Fields v. Twitter, Inc.,
881 F.3d 739, 743 (9th Cir. 2018). We also draw on a
bodycam video that J.K.J. incorporated into the amended
complaint by reference. See Tellabs, Inc. v. Makor Issues &
Rts., Ltd., 551 U.S. 308, 322 (2007).
On November 27, 2018, San Diego police officers
Nicholas Casciola and Jason Taub stopped a Cadillac with
an expired registration. A third officer, Lawrence Durbin,
arrived to provide backup. Inside the Cadillac sat three
people: two men in the front, and Jenkins in the back. The
two men had prior convictions for drug offenses. The
officers knew or became aware of these prior convictions as
they investigated.
Durbin questioned Jenkins, who spoke coherently and
showed no signs of distress. When the officers discovered
that she was subject to arrest based on a warrant involving a
prior methamphetamine offense, they handcuffed her and
put her in Durbin’s cruiser.
With all three passengers secured, the officers searched
the Cadillac. They found “a saran wrap-like plastic . . .
known to law enforcement officers . . . as being commonly
used for narcotics sale.” They also found two wallets, one of
which was full of cash. They did not find any drugs.
Inside Durbin’s cruiser, Jenkins vomited. Taub called for
paramedics and asked Jenkins if she was detoxing. Durbin
asked if she was withdrawing. Jenkins responded: “No, I’m
J. K. J. V. CITY OF SAN DIEGO 7
sick[,] my stomach is turning.” She then added, “I’m
pregnant.” Hearing this explanation, Durbin told Taub,
“Don’t worry about it,” indicating that paramedics were not
needed. Taub approached Jenkins and asked: “Did you eat
something, just for our knowledge?” She responded,
“Mmm-mm,” while shaking her head slightly from side to
side. 1 Taub replied, “Alright, that’s fine. We just wanna
make sure you’re gonna be ok.” Durbin then remarked: “She
says she’s pregnant.” The call to paramedics was canceled.
Durbin began driving Jenkins to a police station for
fingerprinting. The trip took over an hour. En route, Jenkins
told Durbin she did not want to go to jail. She requested
water and a bathroom break. And on several occasions, she
groaned and screamed. When Durbin spoke to her, Jenkins
sometimes responded and sometimes remained silent. At
one point she screamed loudly, “[P]lease help me, please
help me!” and “[O]h my [G]od, please, stop, stop, stop!”
Durbin asked, “What’s going on?” When Jenkins remained
silent for about ten minutes, Durbin stopped the car to check
on her. He opened the rear door and patted her, saying, “I
need you to stay awake.” Jenkins then said, “I’m sick.”
When she again screamed, Durbin told her to “[k]nock it
off.” Jenkins shouted, “[H]elp me[,] please.” Durbin
responded, “[Y]ou’re fine,” and continued driving to the
police station.
1
On appeal, J.K.J. asserts that Jenkins was “nodding her head,” and
thus that her response to Taub was “conflicting[].” Appellant’s Opening
Br. 32. The amended complaint contains no such allegation. And the
video J.K.J. incorporated by reference shows Jenkins move her head
from side to side, not up and down. We rely on the incorporated video,
not J.K.J.’s contradictory assertion in his appellate briefing.
8 J. K. J. V. CITY OF SAN DIEGO
On arrival, about three minutes later, Durbin opened the
rear door and again patted Jenkins, who was lying face down
across the backseat. Jenkins screamed and took several
quick, audible breaths, to which Durbin responded: “Stop
hyperventilating . . . you are doing [that] to yourself.”
Durbin then removed Jenkins from the cruiser to the
pavement. Jenkins screamed and asked for help, and Durbin
remarked to an approaching officer: “She doesn’t want to go
to jail.” Shortly thereafter, Durbin and the other officer
fingerprinted Jenkins as she lay on her side, handcuffed.
Durbin asked Jenkins if she still wanted water, and she
responded at a normal volume: “Yes, please.” After
confirming Jenkins’ identity, Durbin and the other officer
placed her back inside the cruiser.
About eleven and a half minutes later, Durbin opened the
rear door of his cruiser. Jenkins had fallen unconscious.
Durbin immediately removed her from the car and radioed
for paramedics. Soon, another officer arrived with a
breathing tool, and Durbin began CPR. He remarked to the
gathering officers that Jenkins had a narcotics warrant, but
that this was not a narcotics arrest. He then added, “She may
have ingested something,” telling the other officers that he
had Narcan in his trunk. Paramedics arrived. Despite their
efforts, Jenkins fell into a coma. Nine days later, she died.
The amended complaint refers to Jenkins “suffering from an
overdose,” but does not identify a cause of death.
II. Procedural History
In November 2019, J.K.J. filed this lawsuit by and
through his father and personal representative, Jeremy
Hillyer. The District Court granted the defendants’ motion
to dismiss, granting leave to amend. J.K.J. then filed the
amended complaint at issue here, asserting three causes of
action under 42 U.S.C. § 1983. The first, against Taub and
J. K. J. V. CITY OF SAN DIEGO 9
Durbin, was labeled “Unreasonable Search and Seizure—
Denial of Medical Care (42 U.S.C. § 1983).” The second,
against the City, asserted municipal liability under Monell v.
Department of Social Services of City of New York, 436 U.S.
658, 690 (1978). And the third, against Taub and Durbin,
was labeled “Deprivation of Life Without Due Process
(42 U.S.C. § 1983).” The amended complaint also explicitly
“incorporate[d] by reference” the “publicly available
bodycam video of the interaction” between Jenkins and the
officers.
The defendants again moved to dismiss. This time, the
District Court granted the motion with prejudice. The Court
reviewed the bodycam video and concluded that it
comported with J.K.J.’s factual allegations. The Court also
stated: “Th[e] video . . . renders any written allegations
describing what occurred on November 27, 2018, somewhat
superfluous because the Court is not ‘required to accept as
true allegations that contradict exhibits attached to the
Complaint.’” Next, the Court concluded that “if the
[amended complaint] could otherwise avoid dismissal,”
further briefing would be needed to determine whether,
under California law governing survival actions, Jenkins’
other children were required parties. 2
On the merits, the District Court held that J.K.J.’s first
cause of action failed to state a plausible claim for denial of
medical care under the Fourteenth Amendment. The Court
noted J.K.J.’s argument that the claim should instead be
analyzed under a Fourth Amendment reasonableness
2
J.K.J. mischaracterizes the District Court’s analysis of this issue.
Contrary to his assertion, the Court never concluded that he failed to
meet California’s requirements for bringing a survivorship action. It
concluded only that Jenkins’ other children might be required parties.
10 J. K. J. V. CITY OF SAN DIEGO
standard, but concluded that “it [fares] no better” under that
standard. Additionally, the Court held that Taub and Durbin
are entitled to qualified immunity. As to the second cause of
action, the Court held that J.K.J. failed to state a claim under
Monell because (1) the amended complaint alleged no
plausible violation of Jenkins’ constitutional rights; and (2)
it failed to identify any municipal policy or custom as the
cause of the alleged violation. Lastly, the Court dismissed
the third cause of action, the “Deprivation of Life” claim, as
duplicative of the claim for denial of medical care. J.K.J.
timely appealed.
JURISDICTION AND STANDARDS OF REVIEW
The District Court had jurisdiction under 28 U.S.C.
§ 1331. We have jurisdiction to review its final judgment
under 28 U.S.C. § 1291.
“We review de novo . . . a district court’s dismissal for
failure to state a claim; a district court’s decision on qualified
immunity; and a district court’s decision on municipal
liability.” Benavidez v. County of San Diego, 993 F.3d 1134,
1141 (9th Cir. 2021) (citations omitted). “Dismissal with
prejudice and without leave to amend is not appropriate
unless it is clear on de novo review that the complaint could
not be saved by amendment.” Stoyas v. Toshiba Corp.,
896 F.3d 933, 939 (9th Cir. 2018) (quoting Harris v. County
of Orange, 682 F.3d 1126, 1131 (9th Cir. 2012)).
Additionally, we review the decision to incorporate
documents by reference for an abuse of discretion. Khoja v.
Orexigen Therapeutics, Inc., 899 F.3d 988, 998 (9th Cir.
2018).
J. K. J. V. CITY OF SAN DIEGO 11
ANALYSIS
I. The District Court did not err in relying on the
incorporated video.
At the outset, we address J.K.J.’s argument that the
District Court erred by giving too much weight to the
bodycam video he incorporated by reference into the
amended complaint. J.K.J. says the Court improperly
allowed that video to override his written allegations, using
it to resolve factual disputes and effectively converting the
defendants’ motion to dismiss into a motion for summary
judgment. We disagree.
“Ordinarily, a court may look only at the face of the
complaint to decide a motion to dismiss.” Van Buskirk v.
Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir.
2002). However, “[u]nder the ‘incorporation by reference’
rule of this Circuit, a court may look beyond the pleadings
without converting the Rule 12(b)(6) motion into one for
summary judgment.” Id. Specifically, a court may consider
documents “incorporated into the complaint by reference.”
Tellabs, 551 U.S. at 322. Such documents are “assume[d]
. . . [to be] true for purposes of a motion to dismiss.” Khoja,
899 F.3d at 1003 (quoting Marder v. Lopez, 450 F.3d 445,
448 (9th Cir. 2006)). Thus, where the complaint makes
“conclusory allegations that are contradicted by documents
referred to [or incorporated] in the complaint,” a court may
decline to accept such conclusory allegations as true. Tritz v.
U.S. Postal Serv., 721 F.3d 1133, 1135 n.1 (9th Cir. 2013).
On the other hand, “it is improper to assume the truth of an
incorporated document if such assumptions only serve to
dispute facts stated in a well-pleaded complaint.” Khoja,
899 F.3d at 1003 (emphasis added).
12 J. K. J. V. CITY OF SAN DIEGO
The District Court heeded these principles in reviewing
the bodycam video at issue here. First, the Court validly
exercised its discretion in choosing to review the video,
because J.K.J. explicitly incorporated it by reference. This
much J.K.J. concedes. Second, the Court did not assign the
video too much weight. At no point did it allow the video to
“replac[e] or supersed[e] . . . the allegations in the [amended
complaint],” as J.K.J. contends. Appellant’s Opening Br. 55.
On the contrary, the District Court found that the video was
“consistent with” J.K.J.’s factual allegations. Although the
Court stated in dicta that the existence of the video “renders
any written allegations . . . somewhat superfluous,” it then
proceeded to treat J.K.J.’s written allegations as essential for
deciding the motion to dismiss. For instance, the Court
quoted the amended complaint’s allegation that Taub and
Durbin knew Jenkins’ outstanding warrant involved
methamphetamine, and knew the Cadillac’s other occupants
had prior arrests for selling drugs. Likewise, the Court cited
and relied upon J.K.J.’s written allegations concerning the
police training Taub and Durbin received.
Lastly, the District Court did not assume the video to be
true “only . . . to dispute facts stated in” J.K.J.’s pleadings.
Khoja, 899 F.3d at 1003 (emphasis added). To the extent it
found that the video contradicted anything in the amended
complaint, it rejected J.K.J.’s “conclusory allegations”
regarding whether the officers’ conduct met the legal
standard of a constitutional violation. Tritz, 721 F.3d at 1135
n.1. In this, the Court acted within its discretion.
II. The District Court did not err in dismissing the
amended complaint.
We turn now to the heart of J.K.J.’s appeal—his
argument that the District Court erred by dismissing his
amended complaint for failure to state a claim. We consider
J. K. J. V. CITY OF SAN DIEGO 13
J.K.J.’s claims against the City and the individual officers in
turn.
A. Monell Claim
J.K.J.’s sole claim against the City was a municipal
liability claim under Monell. According to the amended
complaint, the City violated Jenkins’ constitutional rights by
employing officers with “dangerous propensities,” by failing
adequately to train and supervise those officers, and by
failing to ensure that arrestees receive proper medical
treatment.
“To bring a § 1983 [Monell] claim against a local
government entity, a plaintiff must plead that a
municipality’s policy or custom caused a violation of the
plaintiff’s constitutional rights.” Ass’n for L.A. Deputy
Sheriffs v. Cnty. of Los Angeles, 648 F.3d 986, 992–93 (9th
Cir. 2011). Here, J.K.J. had to plead facts alleging that
“(1) [Jenkins] was deprived of a constitutional right; (2) the
municipality had a policy; (3) the policy amounted to
deliberate indifference to [Jenkins’] constitutional right; and
(4) the policy was the moving force behind the constitutional
violation.” Lockett v. Cnty. of Los Angeles, 977 F.3d 737,
741 (9th Cir. 2020).
We conclude the amended complaint fell short of this
standard. We limit our discussion to just one of the four
enumerated elements, because this suffices to show that
dismissal was warranted. J.K.J. did not plausibly allege that
any City policy or custom “was the moving force” behind
the constitutional violations Jenkins allegedly suffered. Id.On appeal, J.K.J. insists otherwise. He says he adequately
asserted a causal link by tracing Jenkins’ death back to the
City’s alleged failure to train and supervise its police
officers. But the record belies this claim. The amended
14 J. K. J. V. CITY OF SAN DIEGO
complaint attributes to the City, in broad terms, a “custom,
policy, and practice of . . . inadequately supervising,
training, controlling, assigning, and disciplining” officers.
But even recognizing that “a failure to train can be a ‘policy’
under Monell,” Marsh v. Cnty. of San Diego, 680 F.3d 1148,
1159 (9th Cir. 2012), J.K.J. alleged no facts that would
indicate any “deficiency in training actually caused the
police officers’ [alleged] indifference to [Jenkins’] medical
needs,” City of Canton v. Harris, 489 U.S. 378, 391 (1989).
On the contrary, the amended complaint claimed that San
Diego officers “are trained in accordance with . . . Police
Department policies to take immediate action to summon
medical care” in circumstances like those Taub and Durbin
encountered when they met Jenkins. Indeed, J.K.J. alleged
that Durbin acted “in direct contravention to the policy and
training of the . . . Department.” These allegations suggest
that the moving force behind the alleged constitutional
violation was not a failure to train, but the officers’ failure to
heed their training.
J.K.J. resists this conclusion. He appears to argue that the
officers’ alleged deviation from training indicated “the need
for more or different training.” Harris, 489 U.S. at 390. But
the amended complaint never identified what additional
training was required beyond what Taub and Durbin
received. Nor did it allege facts indicating that this supposed
failure to enhance officer training was the moving force
behind Jenkins’ injuries. Accordingly, J.K.J. failed to state a
claim for municipal liability.
B. Claims Against Taub and Durbin
Next, we consider J.K.J.’s claims against the individual
officers, Taub and Durbin. These included (1) a survivorship
claim—that is, Jenkins’ own claim, brought by J.K.J. on her
behalf—for denial of medical care; and (2) a seemingly
J. K. J. V. CITY OF SAN DIEGO 15
duplicative claim for deprivation of life without due process.
We address each in turn.
1. Denial of Medical Care
Turning first to the denial of medical care claim, J.K.J.
contends the District Court erred in three respects. First, the
Court did not apply a Fourth Amendment standard in
addition to a Fourteenth Amendment analysis. Second, it
improperly concluded that he failed to state a plausible claim
that Officer Durbin was deliberately indifferent to Jenkins’
serious medical need. And third, it found that Taub and
Durbin are entitled to qualified immunity. Because we
affirm that Taub and Durbin are entitled to qualified
immunity, we do not address J.K.J.’s other two arguments.
“Qualified immunity shields government officials under
§ 1983 unless ‘(1) they violated a federal statutory or
constitutional right, and (2) the unlawfulness of their
conduct was clearly established at the time.’” Rico v. Ducart,
980 F.3d 1292, 1298 (9th Cir. 2020) (quoting District of
Columbia v. Wesby, 138 S. Ct. 577, 589 (2018)). When
performing a qualified immunity analysis, courts have
discretion to decide which of these two prongs to address
first. Pearson v. Callahan, 555 U.S. 223, 236 (2009). If
analysis under one prong proves dispositive, we need not
analyze the other. See id.at 236, 241–43. Under both prongs,
the plaintiff bears the burden of proof. Isayeva v.
Sacramento Sheriff’s Dep’t, 872 F.3d 938, 946 (9th Cir.
2017). We begin with the clearly established prong. Thus,
unless J.K.J. can show that on the date the officers
encountered Jenkins, it was clearly established that their
conduct was unlawful, qualified immunity applies under
prong two.
16 J. K. J. V. CITY OF SAN DIEGO
In analyzing whether rights are clearly established, we
look to then-existing “cases of controlling authority” or,
absent such cases, to a “consensus” of persuasive authorities.
Evans v. Skolnik, 997 F.3d 1060, 1066 (9th Cir. 2021)
(quoting Wilson v. Layne, 526 U.S. 603, 617 (1999)). “A
clearly established right is one that is sufficiently clear that
every reasonable official would have understood that what
he is doing violates [it].” Rico, 980 F.3d at 1298 (quoting
Mullenix v. Luna, 577 U.S. 7, 11 (2015) (per curiam)). The
Supreme Court has cautioned that we do not analyze whether
rights are clearly established “at a high level of generality.”
Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018). Nor do we
take the extreme opposite approach, requiring a prior case
“on all fours.” Rico, 980 F.3d at 1298. Our inquiry, instead,
is whether “the violative nature of [the defendant’s]
particular conduct is clearly established . . . in light of the
specific context of the case.’” Id. (quoting Hamby v.
Hammond, 821 F.3d 1085, 1091 (9th Cir. 2016)). Qualified
immunity thus protects “all but the plainly incompetent or
those who knowingly violate the law.” Id. (quoting Wesby,
138 S. Ct. at 589).
J.K.J. argues that a reasonable officer in Durbin and
Taub’s position would have been on fair notice that his
conduct violated clearly established law. He cites three
binding authorities to support this proposition. See Frost v.
Agnos, 152 F.3d 1124 (9th Cir. 1998); Gibson v. Cnty. of
Washoe, 290 F.3d 1175 (9th Cir. 2002), overruled on other
grounds by Castro, 833 F.3d at 1076; McGuckin v. Smith,
974 F.2d 1050 (9th Cir. 1992), overruled on other grounds
by WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir.
1997). He says Frost and Gibson clearly establish that
pretrial detainees have the right not to have their serious
medical needs treated with deliberate indifference. And he
says McGuckin clearly establishes that deliberate
J. K. J. V. CITY OF SAN DIEGO 17
indifference exists where an official “purposefully ignore[s]
or fail[s] to respond to a [detainee’s] pain or possible medical
need.” 974 F.2d at 1060. Setting aside whether J.K.J.
accurately states the holdings of these cases, the problem
with his argument is that “general rules” like the ones he
posits “do not by themselves create clearly established law
outside an ‘obvious case.’” Kisela, 138 S. Ct. at 1153(quoting White v. Pauly, 137 S. Ct. 548, 552 (2017)). J.K.J.
makes no attempt to show that Frost, Gibson, or McGuckin
involved factual contexts akin to the context of this case.
Our review demonstrates that two of them plainly did
not. In Frost, prison officials knew the plaintiff had a broken
leg and needed crutches to get around, yet denied him an
accessible shower and, in some cases, refused to help him
climb stairs. 152 F.3d at 1127–29. There was no question of
a failure to recognize the detainee’s medical need. Similarly,
in McGuckin, the issue was not a failure to recognize the
detainee’s need for surgery, but excessive delays in
performing it. 974 F.2d at 1061–62.
That leaves Gibson. In broad terms, Gibson contains
echoes of this case, in that it involved a failure by law
enforcement to recognize a detainee’s serious medical
need—specifically, his manic state caused by mental illness.
290 F.3d at 1180–83. But Gibson did not establish that
conduct like Durbin’s is unlawful; if anything, it established
the opposite. Our holding was that the deputies who mistook
the detainee’s symptoms for mere anger or intoxication were
not deliberately indifferent, because “all [they] knew about
[his] mental condition was what they could observe of his
behavior” and that behavior did not “obviously” connote
serious illness. Id. at 1197.
Even if our holding in Gibson had been otherwise, that
case involved a meaningfully distinct factual context.
18 J. K. J. V. CITY OF SAN DIEGO
Although both incidents required officers to interpret a
detainee’s medical condition, the detainee in Gibson never
plausibly informed the officers that his symptoms had an
innocuous explanation. Here, the officers asked Jenkins
whether she was withdrawing or detoxing, and she
responded no, explaining that she was sick, her stomach was
turning, and she was pregnant. A few moments later, Taub
asked Jenkins directly: “Did you eat something, just for our
knowledge?” Jenkins, no longer vomiting, responded
“mmm-mm” while shaking her head slightly from side to
side. Taub then replied: “Alright, that’s fine. We just wanna
make sure you’re gonna be ok.” Jenkins next asked for a
napkin to clean herself up—“C’mon, man, I’m too pretty for
this”—but said nothing to indicate she might require medical
aid. And while driving to the police station, Jenkins
explained to Durbin she did not want to go to jail. The
dissent’s characterization of Jenkins’ medical need as
“obvious” ignores this critical context. Neither Gibson nor
the other two cases cited by J.K.J. presented circumstances
where an officer had to grapple with how to handle a
detainee who exhibited signs of medical distress but
explained them away. 3
3
The dissent adds that Sandoval clearly establishes the right to
adequate medical care in “highly analogous” circumstances. But
Sandoval is insufficiently analogous for the same reason as the cases
cited by J.K.J.: the official knew or should have known the detainee had
a serious medical need. Sandoval held that a nurse violated clearly
established law when he largely ignored a detainee whom he was told
needed medical attention. Sandoval, 985 F.3d at 680. In that case, the
nurse “made essentially no effort to determine why Sandoval was
suffering the symptoms reported by [another deputy], nor did he attempt
to treat those symptoms.” Id. Here, it is undisputed that Officer Durbin
attempted multiple times to determine why Jenkins was acting the way
she was.
J. K. J. V. CITY OF SAN DIEGO 19
J.K.J. fails to satisfy the clearly established prong of the
qualified immunity test with binding precedent, so he turns
instead to the decisions of district courts. He cites four such
decisions, two of them unpublished. As a rule, we hesitate to
rely on district court decisions when determining clearly
established law. See Evans, 997 F.3d at 1067. That is
because, “as the Supreme Court has pointed out, ‘district
court decisions—unlike those from the courts of appeals—
do not necessarily settle constitutional standards.’” Id.
(quoting Camreta v. Greene, 563 U.S. 692, 709 n.7 (2011)).
Even if we were to rely on the cases cited by J.K.J., four
hardly make a “consensus of cases of persuasive authority.”
Id. at 1066 (quoting Wilson, 526 U.S. at 617). And finally,
even on J.K.J.’s own telling, three of the four do not fit this
case: in one, he says, the officer (unlike Taub and Durbin)
“was aware” the detainee was under the influence of drugs;
in another, the officers (again unlike Taub and Durbin)
“were told [the detainee] was overdosing”; and in a third, the
court concluded the officers were entitled to qualified
immunity. Appellant’s Opening Br. 37–38 n.5. In sum, J.K.J.
has failed to carry his burden of showing that the alleged
unlawfulness of the officers’ conduct was clearly established
at the time they encountered Jenkins. We conclude that Taub
and Durbin are entitled to qualified immunity under prong
two, and that the District Court properly dismissed J.K.J.’s
denial of medical care claim against them. 4
4
We must pause here to address the dissent’s critique of our
qualified immunity analysis. The dissent asserts that the second prong
turns on whether an accused officer made a mistake of fact or a mistake
of law. According to the dissent, if an officer made a mistake of law, the
Court looks to precedent for factually analogous circumstances showing
that the law was clearly established; but if the officer made a mistake of
fact, the Court simply evaluates that mistake for reasonableness without
20 J. K. J. V. CITY OF SAN DIEGO
2. Deprivation of Life Without Due Process
We turn, next, to J.K.J.’s claim for deprivation of life
without due process. The District Court dismissed this claim
as duplicative of the denial of medical care claim. J.K.J.
contends this was error, insisting that he pleaded an entirely
distinct cause of action—his own claim for the
“depriv[ation] of his liberty interest in the companionship
and society of his parent.” Appellant’s Opening Br. 52.
J.K.J. never presented this argument to the District
Court. The defendants, in moving to dismiss both the
original complaint and the amended complaint, asserted that
looking to precedent. Not so. We have repeatedly held that courts should
look to precedent for evidence that the unlawfulness of an officer’s
conduct is clearly established. To find an example, we need only look so
far as the cases cited by the dissent. See Jensen v. City of Oxnard,
145 F.3d 1078, 1085–86 (9th Cir. 1998) (evaluating the accused officer’s
shooting of a fellow officer he mistook for a suspect against previous
excessive force cases involving officer-on-officer shootings); Wilkins v.
City of Oakland, 350 F.3d 949, 955 (9th Cir. 2003) (comparing the
accused officers’ shooting of a fellow officer they mistook for a suspect
to the officer’s shooting in Jensen); Torres v. City of Madera, 648 F.3d
1119, 1128–29 (9th Cir. 2011) (likening the accused officer’s
misidentification of a gun as a taser to the officers’ misidentification of
officers as suspects in Jensen and Wilkins). Even assuming Officer
Durbin made a mistake of fact, he would still be entitled to qualified
immunity if he was also mistaken about his legal obligations on
summoning medical care when an arrestee is experiencing a non-obvious
medical emergency. See Pearson, 555 U.S. at 231 (“The protection of
qualified immunity applies regardless of whether the government
official’s error is ‘a mistake of law, a mistake of fact, or a mistake based
on mixed questions of law and fact.’” (quoting Groh v. Ramirez,
540 U.S. 551, 567 (2004) (Kennedy, J., dissenting))). To analyze Officer
Durbin’s legal obligations, we still must turn to precedent to look for a
clearly established right. So even under the dissent’s framework, we
cannot ignore precedent.
J. K. J. V. CITY OF SAN DIEGO 21
J.K.J.’s deprivation claim was “a duplication [of] and
redundant [of]” the claim for denial of medical care. In the
District Court’s first dismissal of this case, it concluded the
deprivation claim was duplicative and specifically noted that
“plaintiff [had] not argue[d] otherwise.” Despite this
warning from the Court in its first order and the defendants’
explicit argument the claim was duplicative in its second
motion, J.K.J again failed to dispute that the deprivation
claim was duplicative in its opposition. To be sure, plaintiff
generally opposed dismissal, incorporating by reference his
arguments about the denial of medical care claim, and
writing: “Plaintiff agrees that this cause of action is governed
by the same objective deliberate indifference standard under
[the] Fourteenth Amendment’s due process clause.” But
nowhere does he explain why the claim is not duplicative.
This lack of rebuttal must be categorized as a concession.
We generally do not “entertain[] arguments on appeal
that were not presented or developed before the district
court.” Villanueva v. California, 986 F.3d 1158, 1164 n.4
(9th Cir. 2021) (quoting In re Mercury Interactive Corp.
Secs. Litig., 618 F.3d 988, 992 (9th Cir. 2010)). J.K.J. offers
no reason why we should not follow that rule here.
Accordingly, we conclude that his argument concerning the
deprivation of life claim “has been waived.” Momox-Caselis
v. Donohue, 987 F.3d 835, 842 (9th Cir. 2021).
***
For the reasons stated above, the District Court did not
err in dismissing J.K.J.’s amended complaint. J.K.J. draws
our attention to the fact that the Court’s dismissal was with
prejudice and without leave to amend. But he never squarely
challenges that aspect of the Court’s decision. Merely
mentioning it is not enough: “[W]e cannot ‘manufacture
arguments for an appellant’ and . . . will not consider . . .
22 J. K. J. V. CITY OF SAN DIEGO
claims that were not actually argued in [the] appellant’s
opening brief.” Indep. Towers of Wash. v. Washington,
350 F.3d 925, 929 (9th Cir. 2003) (quoting Greenwood v.
Fed. Aviation Admin., 28 F.3d 971, 977 (9th Cir. 1994)).
Accordingly, we do not address whether denial of leave to
amend was warranted.
CONCLUSION
For the foregoing reasons, the order of the District Court
is AFFIRMED.
WATFORD, Circuit Judge, dissenting in part:
The majority opinion offers a truncated and highly
sanitized account of the events giving rise to this lawsuit, at
least as alleged by the plaintiff. Although at this stage of the
case we are required to accept the plaintiff’s factual
allegations as true, the majority opinion ignores most of the
facts alleged in the complaint. The complaint also expressly
incorporates by reference the contents of a publicly available
body camera video that captures many of the relevant events,
yet the majority opinion turns a blind eye to most of what
that video depicts as well.
The plaintiff’s complaint plausibly alleges that Aleah
Jenkins, a young African-American woman, died in police
custody because the officer responsible for transporting her
to police headquarters took no action when she experienced
an acute medical emergency. Over the course of an hour-
long drive, Officer Lawrence Durbin disregarded obvious
signs of Ms. Jenkins’s medical distress, evidently because he
thought she was “faking” her symptoms as part of a ploy to
avoid going to jail. As I will explain, J.K.J., the plaintiff in
J. K. J. V. CITY OF SAN DIEGO 23
this case and Ms. Jenkins’s minor son, has plausibly alleged
that no reasonable officer in Officer Durbin’s shoes could
have viewed Ms. Jenkins’s rapidly deteriorating medical
condition as some kind of ruse.
Whether J.K.J. can prove this last claim is the key factual
issue that must be resolved by the trier of fact; it cannot be
resolved on a motion to dismiss. If a jury ultimately resolves
this key factual issue in J.K.J.’s favor, he will be entitled to
prevail notwithstanding the defense of qualified immunity
because the law governing Officer Durbin’s actions at the
time was crystal clear: He was required to summon
immediate medical care for Ms. Jenkins. He instead did
nothing, despite objective signs of medical distress that
literally cried out for action. Crediting J.K.J.’s well-pleaded
allegations as true, Ms. Jenkins died as a direct result of
Officer Durbin’s deliberate indifference to her medical
needs. I would reverse the district court’s dismissal of the
claims against Officer Durbin and remand for further
proceedings. 1
I
Before summarizing the complaint’s allegations, let me
say a word about the video at the center of this case.
According to the complaint, the San Diego County District
Attorney’s Office publicly released the video after
investigating Officer Durbin’s potential criminal culpability
for Ms. Jenkins’s death. The roughly 90-minute video
consists largely of footage taken from Officer Durbin’s body
camera during the incident, although an important 11-minute
1
I agree that J.K.J. has not adequately alleged claims against Officer
Jason Taub or the City of San Diego, and I would accordingly affirm the
district court’s dismissal of the claims against those defendants.
24 J. K. J. V. CITY OF SAN DIEGO
segment of the footage has been edited out and the audio is
temporarily muted at several junctures. I include a link to
the video here, 2 albeit with some misgivings. The video
depicts Ms. Jenkins’s agonizing final hours of life. Out of
respect for her family, I would not have drawn further
attention to it but for the fact that J.K.J.’s complaint makes
its contents part of the factual allegations we must review in
order to decide whether his case may proceed.
What follows is a detailed summary of the complaint’s
allegations, as augmented by the video’s footage. At this
stage, we must accept the complaint’s allegations as true
unless they are “blatantly contradicted” by the video, and we
must draw all reasonable inferences from the video in
J.K.J.’s favor. Scott v. Harris, 550 U.S. 372, 378, 380
(2007). To allow readers to judge for themselves whether
anything in the video blatantly contradicts the complaint’s
allegations, I have included references to the timestamp that
appears in the lower left-hand corner of the video. Far from
contradicting the complaint’s allegations, the video supports
virtually every one of them.
The events leading to Ms. Jenkins’s death started with a
routine traffic stop on the afternoon of November 27, 2018.
San Diego police officers pulled over a car in which
Ms. Jenkins was a passenger because the car had expired
registration tags. When officers first encountered
Ms. Jenkins, she was alert, responsive, and seated upright in
the back seat. See First Amended Complaint (FAC) ¶ 27. 3
She provided her name and date of birth to Officer Durbin
2
https://www.youtube.com/watch?v=-cx5dQ_u04k&has_verified=1
3
The first amended complaint may be found at pages 114–43 of the
Excerpts of Record (Dkt. No. 13).
J. K. J. V. CITY OF SAN DIEGO 25
and exhibited no signs of illness, much less any sort of
medical distress. She answered the officers’ questions
cooperatively and told them she was on probation.
Officers learned that Ms. Jenkins had an outstanding
warrant for her arrest arising out of a prior
methamphetamine offense. One of the officers asked her to
step out of the car, and she did so on her own without
difficulty. FAC ¶ 28; Video at 2:15–2:30. She stood without
assistance as one of the officers searched her and, when
asked to do so, unclasped and removed a bracelet she was
wearing. Video at 2:35–3:05. She then placed her hands
behind her back and was handcuffed. She walked without
assistance to a patrol car and sat in the back seat as directed.
Video at 6:15–6:35. Meanwhile, officers conducted a search
of the car in which Ms. Jenkins had been riding, which
turned up empty wads of plastic wrap commonly used for
drug sales. FAC ¶ 28; Video at 9:05–9:30.
Officer Durbin asked Ms. Jenkins to step out of the patrol
car in which she had been sitting and asked her to walk to
his patrol car, since he would be the one transporting her for
booking. She again walked on her own and got into the back
seat of Officer Durbin’s patrol car without difficulty, despite
having her hands cuffed behind her back. FAC ¶ 30; Video
at 9:55–10:25. Officer Durbin commented on Ms. Jenkins’s
compliance with the officers’ instructions during this time,
noting that she was being “straight up with [them.]” FAC
¶ 31; Video at 9:55–10:20.
Roughly 45 minutes after the traffic stop began, while
sitting in the back seat of Officer Durbin’s patrol car waiting
to leave the scene, Ms. Jenkins vomited, repeatedly. FAC
¶¶ 32–33; Video at 11:35–12:30. Officer Durbin walked
over and asked Ms. Jenkins why she was throwing up. She
told him, “I’m sick,” and continued to vomit. Officer Durbin
26 J. K. J. V. CITY OF SAN DIEGO
asked Ms. Jenkins if she was “withdrawing,” and another
officer on the scene, Officer Jason Taub, asked if she was
“detoxing.” Ms. Jenkins told them, “No, I’m sick, my
stomach is turning,” as she continued to dry-heave. FAC
¶ 33. Officer Durbin asked Officer Taub to call the
paramedics, but after Ms. Jenkins told Officer Durbin that
she was pregnant, he told Officer Taub to cancel the call.
FAC ¶ 35. Officer Taub asked Ms. Jenkins if she had eaten
something, but she shook her head to indicate that she had
not. Video at 12:35–12:45.
I agree with my colleagues that, to this point, nothing had
transpired to suggest that Ms. Jenkins was in medical distress
or that she needed immediate medical attention. Maj. op.
at 17–18. Her vomiting was cause for concern, but it could
at least arguably be explained by her claim that she was
pregnant. For that reason, the district court correctly
dismissed J.K.J.’s claims against Officer Taub, as he had no
further interactions with Ms. Jenkins and nothing he had
witnessed triggered a duty to summon medical care.
Officer Durbin was tasked with driving Ms. Jenkins—
who sat alone in the back seat of his patrol car—to a local
jail for booking. Because Ms. Jenkins had once been
arrested on her twin sister’s warrant, Officer Durbin first had
to drive Ms. Jenkins to police headquarters for fingerprinting
so that her identity could be confirmed. Due to heavy rush-
hour traffic, the drive took more than an hour. During that
period, as detailed in the paragraphs that follow,
Ms. Jenkins’s condition deteriorated markedly.
For the first part of the drive, Ms. Jenkins sits quietly in
the back seat, exhibiting no signs of illness. Other than
asking Officer Durbin a few questions and commenting at
one point that she does not want to go to jail, Ms. Jenkins
remains silent. Roughly 20 minutes into the drive, however,
J. K. J. V. CITY OF SAN DIEGO 27
she begins groaning and breathing irregularly. The
complaint describes this labored breathing as “panting,” and
that is a fair characterization based on what can be heard on
the footage from Officer Durbin’s body camera. FAC ¶ 42;
Video at 31:00–32:45. A few minutes later, Ms. Jenkins
begins intermittently screaming and moaning for more than
two minutes. Video at 36:55–39:35. Five minutes after that,
as the complaint alleges and the video confirms,
Ms. Jenkins’s “continual groaning, screaming and panting
increases and becomes louder.” FAC ¶ 43; Video at 45:20.
A brief period of silence ensues, but Ms. Jenkins
suddenly screams again in apparent anguish. “Please help
me, please help me!” she pleads, followed by, “Oh my God,
please stop, stop, stop!” FAC ¶ 45. Her speech is slurred,
her tone of voice is unmistakably that of someone in distress,
and her breathing is irregular, as though she is
hyperventilating. Video at 1:04:40–1:05:30. Officer
Durbin, obviously concerned, asks Ms. Jenkins, “What’s
going on?” along with a series of follow-up inquires, such as
whether she needs water. After five minutes elapse without
any audible response from Ms. Jenkins, Officer Durbin turns
around and peers into the back seat with his flashlight to
check on her. The video does not show what he sees, but as
he turns back around, he says to himself, “Alright, still
breathing.” Video at 1:09:50–1:10:10.
Another five minutes pass without any audible response
from Ms. Jenkins, and Officer Durbin pulls off to the side of
the road to check on her again. He gets out of the car and
walks around to the rear passenger-side door. Ms. Jenkins
is lying on her side across the back seat, and her head must
have been leaning against the door because when Officer
Durbin opens it, her head tumbles out of the car in a manner
suggesting that she is either unconscious or dead asleep.
28 J. K. J. V. CITY OF SAN DIEGO
FAC ¶ 47; Video at 1:14:20–1:14:35. As the complaint
alleges and the video confirms, Ms. Jenkins is listless and
continues to exhibit an “abnormally rapid rate of breathing.”
FAC ¶ 47. Officer Durbin tells Ms. Jenkins, “I need you to
stay awake.” In order to shut the door, he has to push her
head back across the threshold into the car. Video at
1:14:30–1:14:40. As he does so, Ms. Jenkins pleads with
him, “I’m sick.” FAC ¶ 47.
When Officer Durbin gets back into his patrol car,
Ms. Jenkins screams, “Help me please!” FAC ¶ 50; Video
at 1:14:50–1:15:00. He responds by telling her to “knock it
off.” Ms. Jenkins again pleads, “Help me please.” Officer
Durbin responds by saying, “You’re fine” and again tells her
to “knock it off.” FAC ¶ 50. Ms. Jenkins continues to cry
out, “Help me . . . I’m telling you I can’t—,” but what she
says after that is unintelligible. FAC ¶ 50; Video at 1:15:10–
1:15:25.
At this point, as the complaint plausibly alleges, Officer
Durbin “is faced with the objective signs of a serious medical
emergency,” given the drastic decline in Ms. Jenkins’s
condition between the time he first encountered her—when
she was alert, responsive, and appeared perfectly fine—and
now. FAC ¶ 47. Despite observing “the objective signs of
her serious medical needs,” Officer Durbin did not summon
medical care for Ms. Jenkins or even radio ahead to police
headquarters to have medical personnel on hand awaiting
their arrival. FAC ¶¶ 47–48. The complaint plausibly
alleges that any reasonable officer in these circumstances
“would have known that there was a high degree of risk in
not summoning medical attention” for Ms. Jenkins. FAC
¶ 49.
Several minutes after pulling over to check on
Ms. Jenkins, Officer Durbin arrives at police headquarters
J. K. J. V. CITY OF SAN DIEGO 29
and drives into the parking garage. When he opens the rear
door of his patrol car, Ms. Jenkins is lying face down on the
back seat and appears to be unconscious. FAC ¶ 53; Video
at 1:17:17. Officer Durbin taps Ms. Jenkins on the back
repeatedly to rouse her, but she remains face down,
breathing abnormally fast. Officer Durbin tells Ms. Jenkins,
“Stop hyperventilating . . . you are doing that to yourself.”
FAC ¶ 53; Video at 1:17:40–1:18:05. As the complaint
plausibly alleges and the video confirms, while Officer
Durbin stands observing Ms. Jenkins, “her body [begins]
twitching and shaking while lying face down in the back
seat.” FAC ¶ 53; Video at 1:17:50–1:18:20. Yet, despite
“all of the above objective signs of distress and a medical
emergency,” Officer Durbin “made no effort to summon
paramedics, medical care, or have Jenkins evaluated by
medical staff that [were] present at the station.” FAC ¶ 53.
Instead of summoning medical help, Officer Durbin
proceeds with fingerprinting Ms. Jenkins. He asks her to get
out of the car but receives no response. Officer Durbin then
pulls Ms. Jenkins out of the car by her arms, instructing her
to try to get her legs underneath her as her torso clears the
car door’s threshold. Her body is limp, she appears unable
to stand on her own, and her legs simply flop to the ground,
rag doll-like. Video at 1:18:45–1:19:05. As Officer Durbin
drags Ms. Jenkins out of the car in this manner, she screams
in distress and is breathing abnormally fast. FAC ¶ 54.
Now lying on her side on the parking garage floor,
Ms. Jenkins quietly mumbles, “Help me,” but Officer
Durbin ignores her and tells an approaching officer, “She
doesn’t want to go to jail.” FAC ¶ 54. As Officer Durbin
speaks with the other officer about the mechanics of
fingerprinting, Ms. Jenkins remains on the ground,
twitching, mumbling incoherently, and breathing
30 J. K. J. V. CITY OF SAN DIEGO
abnormally fast. FAC ¶¶ 54–55; Video at 1:19:05–1:20:00.
Officer Durbin asks Ms. Jenkins if she wants water, but she
lies listless on the ground and does not respond. 4
Officer Durbin and the other officer take hold of
Ms. Jenkins’s arms, which are still handcuffed behind her
back, and press each of her index fingers onto a mobile
fingerprinting unit while she lies on the parking garage
pavement. Despite being able to walk on her own less than
90 minutes earlier, Ms. Jenkins does not appear capable of
even sitting up under her own power. FAC ¶ 56. She
appears to be going in and out of consciousness, and her
body twitches and shakes. FAC ¶ 56; Video at 1:21:20–
1:22:05.
Officer Durbin and the other officer have to lift
Ms. Jenkins up off the ground to put her back in the patrol
car. The officers struggle to get her into the back seat
because she appears to have no control over her limbs.
Frustrated by Ms. Jenkins’s lack of cooperation with their
efforts to get her back in the car, Officer Durbin tells her,
“This isn’t going to go well, Ms. Jenkins, this is going to lead
to an extra charge.” Video at 1:23:05–1:23:20. As he and
the other officer struggle to get Ms. Jenkins into the car, he
yells at her, “Stand up . . . stop faking,” to which Ms. Jenkins
feebly responds, “I’m not.” FAC ¶ 56; Video at 1:23:20–
1:23:35. At this point, it is obvious that she cannot stand on
4
As the majority opinion notes, a short time later, Officer Durbin
asks Ms. Jenkins again if she wants water and this time she responds,
“Yes, please.” Maj. op. at 8; Video at 1:22:40. The majority opinion
states that Ms. Jenkins gave this response “at a normal volume.” Maj.
op. at 8. If that odd observation is meant to suggest that Ms. Jenkins was
behaving as an ordinary, healthy individual would, it is grossly
misleading.
J. K. J. V. CITY OF SAN DIEGO 31
her own, in stark contrast to her earlier ability to enter and
exit the patrol car without difficulty.
To get Ms. Jenkins into the car, Officer Durbin has to lift
her entire body up and place her face first onto the back seat.
FAC ¶ 57. Her body is completely limp, and her legs and
lower torso hang out of the open car door. Video at 1:23:40–
1:23:50. The other officer pulls Ms. Jenkins’s upper body
across the backseat from the other side of the car, and Officer
Durbin folds her legs into the car so that he can close the
door. FAC ¶ 57; Video at 1:23:45–1:24:00.
Ms. Jenkins is now locked in the back seat of the patrol
car, lying face down, handcuffed, and in obvious medical
distress. Officer Durbin nonetheless walks away and does
not return for more than 11 minutes. Video at 1:24:00–
1:24:10 (timestamp in upper right-hand corner skipping
from 2:02:33 to 2:14:10). It is unclear from the record what
he does during this interval because this segment of his body
camera footage has been edited out of the video.
It is clear, however, that Officer Durbin was not
summoning medical care for Ms. Jenkins during that 11-
minute-plus gap. He returns alone and shakes Ms. Jenkins
in the back seat to check on her. She is totally unresponsive.
FAC ¶ 57; Video at 1:24:15–1:25:00. He pulls
Ms. Jenkins’s body from the car, checks for a pulse, and
says, “I can’t tell if she’s breathing or not.” FAC ¶ 57. Only
at this point does Officer Durbin summon the paramedics.
Video at 1:25:10. He begins performing CPR, but by this
time Ms. Jenkins has stopped breathing and is unconscious.
FAC ¶ 57.
Paramedics soon arrive and take over efforts to
resuscitate Ms. Jenkins. Video at 1:27:55. Despite their best
32 J. K. J. V. CITY OF SAN DIEGO
efforts, Ms. Jenkins never regained consciousness. She fell
into a coma and died nine days later. FAC ¶ 58.
II
J.K.J. alleges two separate claims against Officer
Durbin. The first is a survival claim asserted on
Ms. Jenkins’s behalf that seeks to recover damages for the
injuries she suffered. See Hayes v. City of San Diego,
736 F.3d 1223, 1228–29 (9th Cir. 2013). The second is a
claim asserted on J.K.J.’s own behalf that seeks to recover
damages for the injuries he has sustained (and will sustain)
as a result of his mother’s death. See Moreland v. Las Vegas
Metropolitan Police Department, 159 F.3d 365, 371 (9th
Cir. 1998).
The district court analyzed both claims under the
Fourteenth Amendment’s Due Process Clause, but only the
claim asserted by J.K.J. on his own behalf is governed by the
Fourteenth Amendment. The survival claim asserted on
Ms. Jenkins’s behalf is governed by the Fourth Amendment
because she remained in the custody of the arresting officers
the entire time. See Tatum v. City and County of San
Francisco, 441 F.3d 1090, 1098–99 (9th Cir. 2006); Fontana
v. Haskin, 262 F.3d 871, 878–80 (9th Cir. 2001). The
Fourteenth Amendment applies only after an arrestee has
been booked into jail and thereby becomes, in the eyes of the
law, a pre-trial detainee. But in this context, involving a
claim predicated on the failure to promptly summon medical
care, nothing of consequence turns on whether the person
suffering a medical emergency was an arrestee or a pre-trial
detainee. The standards imposed by the Fourth and
Fourteenth Amendments both require a similar assessment
of whether the officer’s actions were objectively reasonable
under the circumstances. See Sandoval v. County of San
Diego, 985 F.3d 657, 669–70 (9th Cir. 2021) (Fourteenth
J. K. J. V. CITY OF SAN DIEGO 33
Amendment); Tatum, 441 F.3d at 1099 (Fourth
Amendment).
The majority opinion states that it need not decide which
of the two standards applies because the survival claim
asserted on Ms. Jenkins’s behalf fails on qualified immunity
grounds. Maj. op. at 15. In my view, J.K.J. has alleged facts
that easily state a claim under either standard. For
simplicity’s sake, I will analyze the survival claim under the
Fourteenth Amendment standard, without separately
analyzing the claim J.K.J. asserts on his own behalf. 5
The discussion that follows first analyzes whether J.K.J.
has adequately alleged a violation of the Fourteenth
Amendment and then addresses whether Officer Durbin is
shielded from liability by the doctrine of qualified immunity.
5
The majority opinion holds that J.K.J. waived the claim he asserts
on his own behalf, but that is not the case. Maj. op. at 20–21. J.K.J.
opposed dismissal of the claim asserted on his own behalf in the district
court, and he has challenged the dismissal of that claim on appeal. He
did not, as the majority opinion states, concede that this claim was
duplicative of the survival claim. Id. In the district court, J.K.J.
separately analyzed the survival claim under both the Fourth and
Fourteenth Amendments to accommodate the district court’s erroneous
assumption that the Fourteenth Amendment governed that claim, even
as he insisted—correctly—that the Fourth Amendment governs instead.
When opposing dismissal of the claim asserted on his own behalf, which
is governed by the Fourteenth Amendment, he incorporated by reference
the arguments he had already made under the Fourteenth Amendment in
opposing dismissal of the survival claim. He further argued that none of
the allegations in the first amended complaint, including the claim
asserted on his own behalf, were redundant. Why the majority opinion
construes this as a waiver of the claim asserted on J.K.J.’s own behalf is
a complete mystery.
34 J. K. J. V. CITY OF SAN DIEGO
A
A claim under the Fourteenth Amendment for failure to
provide adequate medical care is governed by “an objective
deliberate indifference standard.” Gordon v. County of
Orange, 888 F.3d 1118, 1124–25 (9th Cir. 2018); see Castro
v. County of Los Angeles, 833 F.3d 1060, 1067–71 (9th Cir.
2016) (en banc). It requires a showing of the following:
(1) The defendant made an intentional
decision with respect to the conditions under
which the plaintiff was confined [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.
Sandoval, 985 F.3d at 669 (alteration in original).
To survive a motion to dismiss, J.K.J. must allege facts
“plausibly suggesting” that each of these elements is
satisfied. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557
(2007). He has done so here.
J. K. J. V. CITY OF SAN DIEGO 35
As to the first element, the allegations summarized above
plausibly suggest that Officer Durbin made an intentional
decision concerning the conditions under which Ms. Jenkins
was confined—specifically, his decision not to summon
medical care at any point before she stopped breathing.
During the hour-long drive to police headquarters, Officer
Durbin observed Ms. Jenkins’s condition deteriorate and
deliberately chose not to take action in response. Nothing
more than that intentional decision to refrain from acting is
required, as we made clear in Castro. There, in the context
of a claim alleging that jail officials failed to protect an
inmate from a violent attack by another inmate, we held that
the first element would not be satisfied “if the officer’s
inaction resulted from something totally unintentional,” such
as “an accident or sudden illness that rendered him
unconscious and thus unable to monitor the cell” in which
the two inmates were housed. 833 F.3d at 1070. No
disabling condition of that sort rendered Officer Durbin’s
failure to summon medical care unintentional here. He saw
and heard all the signs of medical distress Ms. Jenkins
exhibited. He nevertheless made the intentional decision not
to act on those observations, evidently because he thought
Ms. Jenkins was “faking” her condition as a ploy to avoid
going to jail.
As to the second element, J.K.J. has plausibly alleged
that Officer Durbin’s failure to summon medical care put
Ms. Jenkins at “substantial risk of suffering serious harm.”
Sandoval, 985 F.3d at 669. Although the precise nature of
what was ailing Ms. Jenkins may have been unclear, there
can be no doubt that something was seriously wrong with
her. When Officer Durbin first encountered Ms. Jenkins, she
was able to sit upright in the back seat of a car, stand without
assistance, and walk on her own. She was breathing
normally and was alert and responsive when answering the
36 J. K. J. V. CITY OF SAN DIEGO
officers’ questions. By the time Officer Durbin pulled over
to check on her, it was clear that Ms. Jenkins was
experiencing some kind of medical emergency. Her
breathing had become abnormally rapid and irregular; she
was screaming and moaning intermittently, followed by
periods in which she may have been in and out of
consciousness; and she repeatedly told Officer Durbin she
was sick and pleaded for help. By the time Officer Durbin
arrived at police headquarters, Ms. Jenkins’s condition had
deteriorated even more dramatically, as she was no longer
able to sit or stand on her own or even to control the
movement of her limbs to avoid injury while being removed
from the car. Failing to seek medical care for Ms. Jenkins
under those circumstances obviously placed her at
substantial risk of suffering serious harm.
J.K.J.’s allegations satisfy the third element as well, as
they plausibly suggest both that Officer Durbin failed to take
reasonable available measures to abate the risk of serious
harm, and that any reasonable officer in these circumstances
would have recognized the high degree of risk involved.
Under our precedent, this element is purely objective, so
J.K.J. need not allege that Officer Durbin was subjectively
aware of the risk that his failure to summon medical care
posed to Ms. Jenkins. Id. at 678; Gordon, 888 F.3d at 1125
& n.4. J.K.J. need only allege facts plausibly suggesting that
Officer Durbin’s conduct was “objectively unreasonable.”
Castro, 833 F.3d at 1071.
The complaint’s allegations, augmented by the video,
plausibly suggest that during the drive to police headquarters
(and certainly upon arrival there), Officer Durbin’s conduct
became objectively unreasonable. The signs of medical
distress that Ms. Jenkins exhibited—her vomiting, moaning,
screaming, irregular breathing, repeated cries for help,
J. K. J. V. CITY OF SAN DIEGO 37
inability to sit or stand on her own, and loss of control of her
limbs—are far outside the range of behavior that any healthy
individual would exhibit. Any reasonable officer observing
those signs would have recognized that Ms. Jenkins needed
immediate medical attention.
Because the signs of Ms. Jenkins’s medical distress were
so obvious, Officer Durbin’s failure to promptly summon
medical care could be objectively reasonable only if his
mistaken belief that she was “faking” her condition was
itself reasonable. An officer of course has no duty to
summon medical care for someone who is merely feigning a
medical emergency. But the complaint’s allegations,
augmented by the video, plausibly suggest that no
reasonable officer in these circumstances would have
concluded that Ms. Jenkins was feigning medical distress.
Nothing about Ms. Jenkins’s behavior suggested that any
aspect of her condition was contrived, as one can plainly see
from the body camera footage. The video alone nudges
J.K.J.’s allegation that Officer Durbin’s actions were
objectively unreasonable “across the line from conceivable
to plausible,” which is all that is required at this early stage.
Twombly, 550 U.S. at 570.
Finally, J.K.J. has also alleged facts satisfying the fourth
element, which requires a showing that Officer Durbin
caused Ms. Jenkins’s injuries by failing to promptly summon
medical care. At least 28 minutes elapsed between the time
Officer Durbin pulled over to check on Ms. Jenkins and the
time he finally summoned paramedics. Twenty minutes
elapsed between his arrival at police headquarters and his
call to the paramedics. The facts alleged by J.K.J. plausibly
suggest that, had Officer Durbin summoned medical care at
either of those earlier junctures, Ms. Jenkins’s death could
have been averted.
38 J. K. J. V. CITY OF SAN DIEGO
In short, J.K.J. has stated a claim that Officer Durbin’s
actions were objectively unreasonable and thus violated the
governing legal standards under both the Fourth and
Fourteenth Amendments.
B
The remaining question is whether qualified immunity
shields Officer Durbin from liability. The majority opinion
concludes that it does, but that conclusion is flawed for one
simple reason: An officer cannot claim qualified immunity
based on an unreasonable mistake of fact, and J.K.J. has
plausibly alleged here that Officer Durbin’s mistake of fact
as to Ms. Jenkins’s medical condition was indeed
unreasonable.
The Supreme Court has instructed us to analyze the issue
of qualified immunity in two steps. The first focuses on
whether the officer’s conduct violated a constitutional right,
the second on whether that right was clearly established at
the time of the events in question. Saucier v. Katz, 533 U.S.
194, 201 (2001). We have already addressed the first step:
As discussed above, J.K.J. has plausibly alleged that Officer
Durbin violated both the Fourth and Fourteenth
Amendments by denying medical care to Ms. Jenkins under
circumstances that rendered his conduct objectively
unreasonable.
At the second step, we ask whether the legal constraints
governing Officer Durbin’s conduct were sufficiently clear
“such that any reasonably well-trained officer would have
known that his conduct was unlawful.” Orn v. City of
Tacoma, 949 F.3d 1167, 1174 (9th Cir. 2020). An officer
may be entitled to qualified immunity at the second step
based on a mistake of fact or law, but in either scenario the
mistake must be a reasonable one. See Pearson v. Callahan,
J. K. J. V. CITY OF SAN DIEGO 39
555 U.S. 223, 231 (2009); Saucier, 533 U.S. at 205; Demuth
v. County of Los Angeles, 798 F.3d 837, 839 (9th Cir. 2015).
In this case, Officer Durbin did not make a mistake of
law—that is, a mistake “as to the legal constraints on
particular police conduct.” Saucier, 533 U.S. at 205.
Ms. Jenkins exhibited obvious signs that she was
experiencing a serious medical emergency, and the legal
constraints governing an officer’s conduct in those
circumstances were clearly established. Any reasonable
officer would have known that failing to summon immediate
medical care for an arrestee experiencing a medical
emergency is unlawful. See Sandoval, 985 F.3d at 679–80;
Gordon, 888 F.3d at 1124–25; Tatum, 441 F.3d at 1099.
Thus, if Officer Durbin had correctly perceived that
Ms. Jenkins’s signs of medical distress were real and not
contrived, he could not have made a reasonable mistake “as
to the legality of [his] actions.” Saucier, 533 U.S. at 206.
What the law required in this situation was not open to
debate. See Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011)
(qualified immunity protects “reasonable but mistaken
judgments about open legal questions”).
The mistake Officer Durbin made was instead a mistake
of fact: He mistakenly believed that Ms. Jenkins was
“faking” her symptoms rather than experiencing an actual
medical emergency. But as we and other courts have
squarely held, if an officer’s mistake of fact is unreasonable,
he is not entitled to qualified immunity based on that
mistake. See, e.g., Jones v. Treubig, 963 F.3d 214, 230–31
(2d Cir. 2020); Demuth, 798 F.3d at 839; Liberal v. Estrada,
632 F.3d 1064, 1076–78 (9th Cir. 2011); Wingrove v.
Forshey, 230 F. Supp. 2d 808, 823–24 (S.D. Ohio 2002).
The dispositive question, then, is whether Officer Durbin
40 J. K. J. V. CITY OF SAN DIEGO
reasonably but mistakenly believed Ms. Jenkins’s medical
distress was feigned.
At this stage of the case, Officer Durbin cannot be
granted qualified immunity because J.K.J. has plausibly
alleged that Officer Durbin’s mistake of fact was
unreasonable. As noted earlier, the many objective signs of
medical distress exhibited by Ms. Jenkins offered no support
for the notion that she was engaged in some kind of ruse.
The video alone plausibly suggests that any reasonable
officer observing the dramatic decline in Ms. Jenkins’s
condition over the course of an hour would have realized that
her vomiting, abnormally rapid breathing, inability to sit or
stand, and loss of control of her limbs were all signs of a true
medical emergency, not part of an elaborate act. When an
officer’s actions are based on an unreasonable mistake of
fact, we determine whether the law governing the officer’s
conduct was clearly established under the facts that the
officer should have correctly perceived. See Torres v. City
of Madera, 648 F.3d 1119, 1127 (9th Cir. 2011). Under
those facts here, as already discussed, Officer Durbin’s
actions violated Ms. Jenkins’s clearly established right to
have medical care summoned immediately. 6
The preceding discussion explains why the majority
opinion wrongly faults J.K.J. for failing to cite cases finding
a constitutional violation in directly analogous
circumstances. Maj. op. at 16–19. That failing would be
relevant if we were dealing with an officer whose conduct
6
It bears noting that whether Officer Durbin honestly believed that
Ms. Jenkins was feigning her condition is irrelevant to the analysis. See
Torres, 648 F.3d at 1127. The only relevant question is whether his
mistaken belief was a reasonable one. Accepting the complaint’s
allegations as true, it was not.
J. K. J. V. CITY OF SAN DIEGO 41
was based on a mistake of law. In that context, a plaintiff
will often need to marshal cases involving factually
analogous circumstances to show that the law was clearly
established. Saucier, 533 U.S. at 205. After all, broad legal
concepts that are designed to “accommodate limitless factual
circumstances,” such as excessive force and probable cause,
can leave considerable uncertainty about “how the relevant
legal doctrine . . . will apply to the factual situation the
officer confronts.” Id.; see, e.g., Anderson v. Creighton,
483 U.S. 635, 640–41 (1987).
No such need to marshal factually analogous cases exists
when an officer’s conduct is based on a mistake of fact. The
key question in that setting is whether the officer’s mistake
was reasonable or not—a factual issue that the jury must
resolve when, as in this case, the underlying facts (or the
inferences to be drawn from those facts) are in dispute. See
Wilkins v. City of Oakland, 350 F.3d 949, 955 (9th Cir.
2003); Jensen v. City of Oxnard, 145 F.3d 1078, 1086–87
(9th Cir. 1998). 7
Whether an officer’s mistake of fact was reasonable is
assuredly not a legal question, and hence the hunt for
analogous cases is both unnecessary and futile. One will
7
The majority opinion misreads these cases, suggesting that they
require factually analogous precedent establishing the unlawfulness of
an officer’s mistake of fact. Maj. op. at 19 n.4. They do not. In both
cases, we determined whether the legal constraints on an officer’s
conduct were clearly established under the facts that the officer
reasonably should have perceived and searched for factually analogous
cases in making that determination. But with respect to the mistake of
fact, we held that the “crucial question” is whether the officer’s mistaken
belief “was reasonable under the circumstances,” an issue that had to be
left to the jury to resolve. Wilkins, 350 F.3d at 955; see also Jensen,
145 F.3d at 1086–87.
42 J. K. J. V. CITY OF SAN DIEGO
search the pages of the Federal Reporter in vain looking for
guidance on whether a particular collection of facts shows
that someone is suffering a real as opposed to a feigned
medical emergency. Deciding the reasonableness of an
officer’s mistake as to that issue requires drawing on
common sense and everyday lived experience rather than a
study of legal precedents, which is precisely why resolution
of the issue is entrusted to juries in the first place.
The majority opinion’s characterization of this case as
one concerning a mistake of law—in which Officer Durbin
was “mistaken about his legal obligations on summoning
medical care when an arrestee is experiencing a non-obvious
medical emergency”—cannot be squared with the record.
Maj. op. at 19 n.4 (emphasis added). Officer Durbin did not,
as the majority opinion suggests, make a mistake as to
whether the law required him to summon medical care
because the signs of medical distress Ms. Jenkins exhibited
were “non-obvious.” As the video confirms, those signs
were as obvious as could be; Officer Durbin decided to
ignore them because he thought (incorrectly) that she was
“faking” her condition. See, e.g., Video at 1:23:20–1:23:35.
Whether his mistake of fact was reasonable cannot be
resolved at the motion-to-dismiss stage. 8
8
Even if we accept the majority opinion’s erroneous insistence on
the need for a factually analogous case establishing the obviousness of
Ms. Jenkins’s medical emergency, we have one. In Sandoval, our court
made clear that the right to adequate medical care was clearly established
in circumstances highly analogous to—and indeed, less dire than—those
presented in this case. There, we held that by 2014 “failing to provide
any meaningful treatment” to a detainee “who was sweating and
appeared so tired and disoriented that a deputy urged that he be re-
evaluated” violated clearly established law, such that any reasonable
official would know that such conduct violated the Constitution.
J. K. J. V. CITY OF SAN DIEGO 43
* * *
In sum, the district court erred by dismissing J.K.J.’s
claims against Officer Durbin. J.K.J. has adequately pleaded
both a survival claim on Ms. Jenkins’s behalf under the
Fourth Amendment and a claim on his own behalf under the
Fourteenth Amendment. We should have reversed the
dismissal of those claims and remanded for further
proceedings.
985 F.3d at 680. The same is necessarily true for failing to provide any
medical treatment to Ms. Jenkins based on her symptoms of vomiting,
irregular breathing, repeated cries for help, inability to sit or stand, and
loss of control of her own limbs. In November 2018, any reasonable
officer would have known, based on the clearly established law in this
circuit, that ignoring these obvious signs of medical distress would
violate Ms. Jenkins’s constitutional rights.