A Plaintiff Failed to Plausibly Allege That an Officer Violated a Detainee’s Constitutional Right to Adequate Medical Treatment

Provided by James R. Touchstone Esq

In J. K. J. v. City of San Diego,[1] the Ninth Circuit Court of Appeals affirmed a dismissal of an action alleging constitutional violations by police officers in their treatment of a woman who was arrested at a traffic stop, fell ill while in police custody, and died nine days later.


In November 2018, San Diego police officers Jason Taub and Nicholas Casciola stopped a vehicle with an expired registration.  Officer Lawrence Durbin arrived to provide backup.  Two men sat in the front seat and a woman, Aleah Jenkins, in the back.  The officers knew or became aware as they investigated that the two men in the front had prior convictions for drug offenses.

Officer Durbin questioned Jenkins, who spoke coherently and showed no signs of distress.  The officers discovered that she had a warrant involving a prior methamphetamine offense and was subject to arrest, so the officers handcuffed Jenkins and put her in Officer Durbin’s cruiser.

All three passengers were secured.  The officers searched the vehicle and found saran wrap-like plastic commonly used for narcotics sale and two wallets, one of which was full of cash.  However, the officers did not find any drugs.

Inside Officer Durbin’s cruiser, Jenkins vomited.  Officer Taub called for paramedics and asked Jenkins if she was detoxing.  Officer Durbin asked if she was withdrawing.  Jenkins replied: “No, I’m sick[,] my stomach is turning.”  She then added, “I’m pregnant.”  Officer Durbin told Officer Taub, “Don’t worry about it,” indicating that paramedics were not needed.  Officer Taub approached Jenkins and asked: “Did you eat something, just for our knowledge?”  Jenkins responded, “Mmm-mm,” while shaking her head slightly from side to side.  Officer Taub replied, “Alright, that’s fine.  We just wanna make sure you’re gonna be ok.”  Officer Durbin then stated: “She says she’s pregnant.”  The call to paramedics was canceled.

Officer Durbin began driving Jenkins to a police station for fingerprinting.  The trip took over an hour.  During the drive, Jenkins told Officer Durbin she did not want to go to jail.  She requested water and a bathroom break.  On several occasions, she groaned and screamed.  When Officer Durbin spoke to her, Jenkins sometimes responded and sometimes was silent.  At one point she screamed loudly, “[P]lease help me, please help me!” and “[O]h my [G]od, please, stop, stop, stop!”  Officer Durbin asked, “What’s going on?”  When Jenkins remained silent for about ten minutes, Officer 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, Officer Durbin told her to “[k]nock it off.”  Jenkins shouted, “[H]elp me[,] please.”  Officer Durbin responded, “[Y]ou’re fine,” and continued driving until arriving three minutes later at the police station.

On arrival, Officer 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 Officer Durbin responded: “Stop hyperventilating . . . you are doing [that] to yourself.”  Officer Durbin then removed Jenkins from the cruiser to the pavement.  Jenkins screamed and asked for help, and Officer Durbin stated to an approaching officer:  “She doesn’t want to go to jail.”  Shortly thereafter, Officer Durbin and the other officer fingerprinted Jenkins as she lay on her side, handcuffed.  Officer Durbin asked Jenkins if she still wanted water, and she responded at a normal volume:  “Yes, please.”  After confirming Jenkins’ identity, Officer Durbin and the other officer placed her back inside the cruiser.

Approximately eleven and a half minutes later, Officer Durbin opened the rear door of his cruiser.  Jenkins had fallen unconscious.  Officer Durbin immediately removed her from the car and radioed for paramedics.  Another officer arrived soon after with a breathing tool, and Officer Durbin began CPR.  He stated 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.

Jenkins’ minor son, J.K.J., brought constitutional claims against the City of San Diego and Officers Durbin and Taub.  The amended complaint (which referred to Jenkins “suffering from an overdose,” but did not identify a cause of death) asserted three causes of action under 42 U.S.C. section 1983.  Against the officers, J.K.J. asserted separate causes of action for denial of medical care and deprivation of life without due process.  Against the City, J.K.J. asserted municipal liability under Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 690 (1978).

The District Court dismissed J.K.J.’s amended complaint with prejudice, finding that J.K.J.’s cause of action failed to state a plausible claim for denial of medical care under the Fourteenth Amendment.  The District Court stated that the claim additionally failed under the Fourth Amendment reasonableness standard.  The District Court also held that the officers were entitled to qualified immunity.  The District Court dismissed the deprivation of life claim as duplicative of the claim for denial of medical care.  As to the cause of action against the city, the District Court held that J.K.J. failed to state a claim under Monell.  The Court explained that the amended complaint alleged no plausible violation of Jenkins’ constitutional rights and failed to identify any municipal policy or custom as the cause of the alleged violation.  J.K.J. appealed.


Considering the denial of medical care claim, the Ninth Circuit Court of Appeals noted that pretrial detainees in state custody “have a constitutional right to adequate medical treatment” under the Fourteenth Amendment.[2]  “[C]laims for violations of [this] right . . . [are] evaluated under an objective deliberative indifference standard.”[3]  The elements of such a claim are:  “(i) the defendant made an intentional decision with respect to the conditions under which the [decedent] was confined; (ii) those conditions put the [decedent] 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 [decedent’s] injuries.”[4]

Regarding the third element, the Court noted that “the defendant’s conduct must be objectively unreasonable, a test that will necessarily turn on the facts and circumstances of each particular case.”[5]  “The mere lack of due care by a state official does not deprive an individual of life, liberty, or property under the Fourteenth Amendment.”[6]  Accordingly, the plaintiff must plausibly allege facts demonstrating “more than negligence but less than subjective intent—something akin to reckless disregard.”[7]

The Ninth Circuit noted that under the Fourth Amendment, which J.K.J. argued should have also applied here, officers are prohibited from using excessive force while transporting an arrestee,[8] and a failure to summon emergency medical aid can constitute excessive force if it is “objectively [un]reasonable.”[9]  The Court stressed that it assessed objective unreasonableness, under both the Fourth and Fourteenth Amendments, “from the perspective of a reasonable officer on the scene, including what the officer knew at the time, not with the 20/20 vision of hindsight.”  Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015).

Considering the traffic stop itself, the Court noted that after Jenkins vomited in Officer Durbin’s vehicle, the officers asked her whether she was withdrawing or detoxing, and she responded no, explaining that she was sick, her stomach was turning, and she was pregnant.  Officer Taub a few moments later asked Jenkins directly if she had eaten something, “just for our knowledge.”  Jenkins, no longer vomiting, responded “mmm-mm” while shaking her head slightly.  Officer Taub followed-up by stating: “Alright, that’s fine.  We just wanna make sure you’re gonna be ok.”  Jenkins then asked for a napkin to clean herself up but said nothing suggesting that she might require medical aid.  Officer Taub canceled the paramedics call after speaking with Officer Durbin and Jenkins at the traffic stop.

J.K.J. argued on appeal that the officers should have discounted Jenkins’ statements that she was pregnant and that she had not eaten anything, noting that Jenkins had vomited and asserting that “it is common knowledge to police officers that individuals do not admit to crimes.”  However, the Court stated that J.K.J. ignored the context of the traffic stop and examined the situation “with the 20/20 vision of hindsight.”  Kingsley, 135 S. Ct. at 2473.  The Court noted that Jenkins’ encounter with police began as a stop for an expired vehicle registration and that no drugs were found in the Cadillac.  The Court stated that a reasonable officer would not necessarily assume that the small amount of saran wrap-like plastic discovered in the search had recently contained drugs, or that, if it did, those drugs had been taken by Jenkins.  Moreover, the officers took reasonable steps to investigate the possibility that Jenkins had ingested something:  they asked her directly.  Jenkins not only denied it, but she provided alternative explanations for having vomited that were plausible on their face.  The Court of Appeals concluded that it was not objectively unreasonable—much less an instance of objective deliberate indifference akin to reckless disregard—for the officers to conclude that paramedics were not needed at the traffic stop.

The Ninth Circuit then considered Officer Durbin’s drive to the police station with Jenkins.  The Court observed that Jenkins told the officer she did not want to go to jail.  She then intermittently screamed and asked for help.  When Officer Durbin asked what was wrong, Jenkins never revealed that she had ingested anything or requested medical care.  For long stretches, she remained quiet.  The Court stated that Officer Durbin monitored her behavior, stopping to check on her after she spent about ten minutes in silence.  At that point, the officer found Jenkins lying face-down across the backseat.  He asked her to stay awake.  She repeated that she was sick but did not reveal that she had taken drugs.  Officer Durbin told Jenkins, “You’re fine,” and said they were nearly to the station.  They arrived approximately three minutes later.  At the station, Jenkins again screamed, and Officer Durbin remarked to an approaching officer, “She doesn’t want to go to jail.”  When Officer Durbin later asked Jenkins if she still wanted water, she calmly responded, “Yes, please.”  When Officer Durbin ultimately discovered that Jenkins had lost consciousness, he immediately summoned paramedics and performed CPR.

The Court concluded that these facts did not plausibly allege objective unreasonableness or objective deliberate indifference akin to reckless disregard.  Although in hindsight it was clear that Jenkins had a serious medical need, it was not plausible to infer that “a reasonable official in [Officer Durbin’s] circumstances would have appreciated the high degree of risk involved—making the consequences of [his] conduct obvious” before Jenkins fell unconscious.[10]  When she did, Officer Durbin promptly radioed for help.  The Court concluded that until that time, Officer Durbin’s conduct was not objectively unreasonable, considering Jenkins’ prior statements—including her alternative explanations for having vomited, her denial that she had ingested anything, and her insistence that she did not want to go to jail.  The Court stated that it could not say that Officer Durbin behaved objectively unreasonably or with objective deliberate indifference in failing to recognize, sooner than he did, that Jenkins had a serious medical need.

The Ninth Circuit accordingly held that the amended complaint failed to allege facts that would demonstrate either objective unreasonableness or objective deliberate indifference by either Officer Taub or Officer Durbin at the stop or thereafter.

The Ninth Circuit also concluded that dismissal of the denial of medical care claim was appropriate because the officers were entitled to qualified immunity.  “Qualified immunity shields government officials under Section 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)).  Based on its preceding analysis, the Court explained that J.K.J. had not plausibly alleged a violation of Jenkins’ constitutional rights as required by the first qualified immunity prong.

The Court also considered the second prong of the qualified immunity test, observing that “[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 Court explained that the proper inquiry was 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.”  Wesby, 138 S. Ct. at 589.

The Ninth Circuit summarized the instant case as one that involved a detainee who exhibited signs of medical distress but also obscured the seriousness of those signs with statements about being pregnant, not ingesting drugs, and wanting to avoid jail.  The Court found that none of the precedents that J.K.J. cited came close to showing that “every reasonable official” would have understood that acting as Officers Taub and Durbin did, given the contradictory facts they had to consider, violated the Constitution.  Rico, 980 F.3d at 1298 (quoting Mullenix, 577 U.S. at 11).  The Court determined 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.  The Court of Appeals concluded that the officers were thus also entitled to qualified immunity under the test’s second prong, and that the District Court properly dismissed J.K.J.’s denial of medical care claim against them.

Regarding the deprivation of life claim, the Court of Appeals found that J.K.J had repeatedly failed to dispute the District Court’s conclusion that the deprivation claim was duplicative of the denial of medical care in its opposition.  The Ninth Circuit explained that it generally did not “entertain[] arguments on appeal that were not presented or developed before the [D]istrict [C]ourt,”[11] and accordingly concluded that J.K.J.’s argument concerning the deprivation of life claim “ha[d] been waived.”[12]

Turning to the municipal liability claim brought under Monell, the Ninth Circuit explained that “[t]o bring a [Section] 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.”[13]  Here, J.K.J. was required 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.”[14]  The Court found that J.K.J. did not plausibly allege that any City policy or custom “was the moving force” behind the constitutional violations Jenkins allegedly suffered.  The Court explained that even recognizing that “a failure to train can be a ‘policy’ under Monell,”[15] J.K.J. alleged no facts that would indicate any “deficiency in training actually caused the police officers’ [alleged] indifference to [Jenkins’] medical needs.”[16]

In sum, the Court held that J.K.J. failed plausibly to allege a constitutional violation, and that the officers, alternatively, did not violate clearly established law and were protected by qualified immunity.  The Ninth Circuit Court of Appeals thus concluded that the District Court did not err in dismissing J.K.J.’s amended complaint, and accordingly affirmed.

A judge dissenting in part stated that the majority opinion presented “a truncated and highly sanitized account of the events giving rise to this lawsuit, at least as alleged by the plaintiff.”  The dissent noted that at this stage of the case the Ninth Circuit panel was required to accept the plaintiff’s factual allegations as true.  The dissent stated that the majority opinion, however, ignored most of the facts alleged in the complaint and turned “a blind eye” to most of what body camera video footage depicted as well.  The dissent maintained that the complaint plausibly alleged that Jenkins died in police custody because Officer Durbin, as the officer responsible for transporting her to police headquarters, took no action when she experienced an acute medical emergency.  The dissent would reverse the District Court’s dismissal of the claims against Officer Durbin and remand for further proceedings.


Agencies will observe that the Ninth Circuit emphasized the particular facts of this case as the basis for its conclusion that the conduct of the officers here did not meet the high level of the “objectively unreasonable” or objective deliberate indifference standards.  Some of these facts were that Jenkins denied ingesting anything, provided a plausible alternative explanation for her vomiting by stating that she was pregnant and sick, and insisted she did not want to go to jail.  During the drive, Officer Durbin checked on her and questioned her.  Although it became known later that Jenkins had likely ingested drugs, the crux here was that the constitutional standards of objective unreasonableness are assessed “from the perspective of a reasonable officer on the scene, including what the officer knew at the time, not with the 20/20 vision of hindsight.”  Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015).

As always, if you want to discuss any of this in greater detail, do not hesitate to contact James Touchstone at jrt@jones-mayer.com or by telephone at (714) 446-1400.

Information on www.jones-mayer.com is for general use and is not legal advice.  The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship.

[1] 2021 U.S. App. LEXIS 33778 (9th Cir. Nov. 15, 2021).

[2] Sandoval v. Cnty. of San Diego, 985 F.3d 657, 667 (9th Cir. 2021).

[3] Gordon v. Cnty. of Orange, 888 F.3d 1118, 1124-25 (9th Cir. 2018).

[4] Id. at 1125.

[5] Id. (quoting Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1071 (9th Cir. 2016)) (alteration and internal quotation marks omitted).

[6] Id. (quoting Castro, 833 F.3d at 1071) (internal quotation marks omitted).

[7] Id.

[8] Fontana v. Haskin, 262 F.3d 871, 879 (9th Cir. 2001) (quoting Robins v. Harum, 773 F.2d 1004, 1010 (9th Cir. 1985)).

[9] Tatum v. City & Cty. of San Francisco, 441 F.3d 1090, 1099 (9th Cir. 2006).

[10] Gordon, 888 F.3d at 1125.

[11] 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)).

[12] Momox-Caselis v. Donohue, 987 F.3d 835, 842 (9th Cir. 2021).

[13] Ass’n for L.A. Deputy Sheriffs v. Cnty. of Los Angeles, 648 F.3d 986, 992-93 (9th Cir. 2011).

[14] Lockett v. Cnty. of Los Angeles, 977 F.3d 737, 741 (9th Cir. 2020).

[15] Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1159 (9th Cir. 2012).

[16] City of Canton v. Harris, 489 U.S. 378, 391 (1989).