Frary v. County of Marin (81 F. Supp. 3d 811, 2015)

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; ORDER GRANTING PLAINTIFFS’ MOTION TO FILE THIRD AMENDED COMPLAINT

Re: Dkt. Nos. 97, 180

MARIA-ELENA JAMES, United States Magistrate Judge

INTRODUCTION

Plaintiffs sued the County of Marin and individual jail staff (“Defendants”) for their alleged deliberate indifference to decedent Anthony Carmignani’s serious medical needs while he was in Defendants’ custody. See Dkt. No. 52, Second Am. Compl. Now pending before the Court is Defendants’ Motion for Summary Judgment. Dkt. No. 97 (“Mot.”). Plaintiffs oppose the motion. Dkt. No. 131 (“Opp’n”). The Court held a hearing on December 18, 2014. Dkt. No. 171. Having considered the parties’ positions, relevant legal authority, and the record in this case, the Court GRANTS IN PART and DENIES IN PART Defendants’ Motion for the reasons set forth below.

BACKGROUND

The following facts are undisputed unless otherwise indicated:

A. Decedent Anthony Carmignani

Marin County Jail staff found Anthony Carmignani not breathing in his cell on July 30, 2011. Combined Statement of Facts (“CSF”), Dkt. No. 137, ¶ 46. Jail deputies and medical personnel tried to resuscitate Carmignani, and he was transported to the hospital, where he was later pronounced dead. CSF ¶¶ 47-48. His death certifícate names his cause of death an accidental mixed drug overdose. Id. ¶ 49.

The day before, on July 29, 2011, Novato Police Officers had arrested Anthony Car-mignani and transported him to the Marin County Jail. Id. ¶ 9. Carmignani’s mother, Plaintiff Lynnette Frary, reported Car-mignani for allegedly stealing prescription medication from her home. Id. ¶ 5. Plaintiffs allege that during transit to the Jail, Carmignani retrieved some pills from his pockets and ingested them. Id. ¶¶ 11, 12; Second Am. Compl. ¶¶ 9, 45, 47. Car-mignani arrived at the Jail at around 3:30 pm. CSF ¶ 13.

Upon arrival, Jail staff searched Car-mignani and found several pills in his pockets, including one Embeda, an extended release morphine pill. Id. ¶ 14. Car-mignani was then examined by a booking nurse, Defendant Shannon Fetterly, who asked him if he had taken any drugs. Id. ¶ 16. Carmignani told her that he had taken only two “street” morphine pills before he was arrested. Id. ¶ 17. Nurse Fetterly kept Carmignani in the booking area for four hours. Id. ¶ 18. During those four hours, she took his vital signs at least two times. Id. ¶ 19.

Nurse Fetterly testified that “[Carmig-nani’s] vitals were fine.... [H]e told me he was feeling fine” but also noted that “he was worried about withdrawal, when he started coming off of the medication, the morphine, that he was going to withdraw. He made that very well-known to me.” Fiol Decl., Ex. 6 (Fetterly Dep.) 170:3-7, Dkt. No. 131-2. She also testified that she wrote in his medical chart, “he just popped two morphine pills before he was arrested. Noticed change in behavior, very drowsy, pupils pinpoint. States he is going to detox bad.” Id. at 154:8-23. Nurse Fetterly documented that Carmignani’s eyes “went from non-pinpoint to pinpoint in that hour and a half period” between 4:00 and 5:30 p.m. and that he became “very drowsy.” Id. at 139:3-18. She found these observations significant at the time, noting that she was aware that he was “definitely under the influence of something” and that these observations caused her to believe “he needed to be observed in booking longer. He was not ready to go upstairs.” Id. at 145:1-8.

A few hours later, around 8:00 p.m., Nurse Fetterly released Carmignani for placement into the general jail population. CSF ¶¶ 23, 29. The jail staff placed Car-mignani in Administrative Segregation (“Ad Seg”) — in a cell by himself — because his prior custodial history indicated that he had gang affiliations as well as “keep away” orders from African Americans and Hispanics. Id. ¶ 29. Carmignani’s cell was equipped with an intercom. Id. ¶ 30. Nurse Fetterly had advised Carmignani that he could use the intercom to get a hold of a nurse if he felt he needed medical attention. Fetterly Dep. 23:13-16, Dkt. No. 100-3, Ex. F. Carmignani said that he understood and that he just wanted to go to sleep. Id. at 23:16-17; CSF ¶ 23.

Ad Seg has two levels, with Cells 1-7 on the lower level. CSF ¶ 145; Fiol Deck, Ex. 10 (Johnson Dep.) 58:10-17; 71:1-2, Dkt. No. 131-3. Carmignani was housed on the lower level, in Cell 1. CSF ¶ 162. The Ad Seg Deputy sat in the “tower” that was even with the upper,. second level of cells. Id. ¶ 146; Johnson Dep. 62:3-6. The deputy must remain in the tower at.all times. Johnson Dep. 95:12-20. There is also a movement relief deputy, or MRD, who moves in and out of Ad Seg during the graveyard shift. Id. at 95:21-96:21. Deputy Johnson was the. tower deputy on July 29 and 30, 2011. Id. at 77:12-18. He placed Carmignani in Cell 1. CSF ¶ 162.

The inmate status report listed Carmig-nani as “high risk” and “unstable[,]” noting also “obs. opiate detox.” See Johnson Dep., Ex. 4; Fetterly Dep. 186:4-17; 187:1-11. .Nurse Fetterly testified that she put in an entry “observe for opiate detox” and “[ijnformed custody about morphine use prior to arrest.” Fetterly Dep. 154:14-15. Additionally, a “corrections entry” states: “17:43 hours: Nurse Shannon Fenley told me that while she was doing the inmates intake inmate admitted to her that he had taken two street morphine pills prior to coming to jail. He had pinpoint eyes. Inmate stated that he will ‘crash hard.’ Please monitor inmate.” Johnson Dep., Ex. 5 (spelling in original).

The Jail used an electronic log in its computer system known as the “Beat Book,’’ which deputies used to record “any notable event” that occurred in the Jail for each pod, including safety checks. Dkt. No. 104, Hickey Deck ¶ 4. The Beat Book shows that the majority of the safety checks for Carmignani were “completed from the tower” or “from tower,” Hickey Deck, Ex. A. According to Deputy Johnson, a safety check completed from the tower means that he did a visual or a sound check of the inmate. Johnson Dep. 137:22-25; 89:4-12. The pod deputy could only hear sounds in the cell if he pressed a button to activate the intercom and connect the guard tower to that cell; otherwise, the deputy cold not hear what was happening in the cell through the intercom. Id. at 65:12-21; 90:5-16. Deputy Johnson testified that a visual check means peering out the window of the tower. Id. at 89:10-12. He testified that he could see possibly a quarter of Carmignani’s cell-bed from the tower. Id. at 77:13-18; 79:2-8; 84:5-8. Ronald Martinelli, Plaintiffs’ expert witness, visited the jail, took pictures of the cell, and stated that no portion of the bed could be viewed from the tower. Martinelli Deck ¶ 37 & Ex. 2, Dkt. No. 131-5.

At approximately 10:24 p.m., around seven hours after Carmignani arrived at the Jail, Novato Police Officer Stephanie Commisto met with Carmignani to serve him with papers. CSF ¶ 31. Carmignani walked to the door of his cell as Officer Commisto passed him the paperwork through his cell’s food port. Id. ¶ 32. Carmignani did not face Officer Commisto as he read the papers, and she never saw his eyes. Id. ¶ 34; Giacomini Brewer Deck, Ex. H (Commisto Dep.) 120:17-22; 122:20-25; Dkt. No. 101-2. Officer Com-misto did not observe anything about Car-mignani that indicated he was having problems or in any medical distress. CSF ¶ 35. Officer Commisto’s visit with Carmignani was not indicated in a “Beat Book” entry. See Hickey Deck, Ex. A.

The next morning, at approximately 5:30 a.m., Defendant Deputy Rachel Hammer and two volunteer inmates attempted to serve Carmignani breakfast. CSF ¶ 39. Deputy Hammer asked Carmignani if he wanted breakfast, but he did not respond. Fiol Deck, Ex. 7 (Hammer Dep.) 121:23-122:2, Dkt. No. 131-2. Deputy Hammer knocked on his cell door at least three or four times and characterized these knocks as “hard.” CSF ¶¶ 40, 218; Hammer Dep. 122:3-21. The knocks elicited no response from Carmignani other than snoring. Hammer Dep. 122:22-24. Deputy Hammer testified that she elevated her voice to get Carmignani’s attention, and even when she yelled he did not respond. Id. at 145:22-146:4. Deputy Hammer also observed Carmignani’s chest rising and falling. CSF ¶ 42. His eyes stayed closed and she did not otherwise observe him move. Hammer Dep. 120:25-121:20. Trustee Diaz, one of the volunteer inmates who helped Deputy Hammer serve breakfast, testified that Anthony’s mouth was open and his eyes slightly open and rolled back. Fiol Deck, Ex. 4 (Diaz Dep.) 69:20-70:12, Dkt. No. 131-2.

Deputy Hammer was read a statement by Trustee Diaz, which said that Deputy Hammer had called out to Carmignani for approximately one minute and that he remembered commenting to Deputy Hammer that Carmignani “looks dead.” Hammer Dep. 134:24-135:9. Deputy Hammer did not dispute the accuracy of this statement, instead stating that she does not remember. Id. at 135:15-20. Deputy Hammer reported to Deputy Johnson over her radio that Carmignani had “refused” breakfast. Id. at 124:14-21; CSF ¶ 222. Deputy Hammer instructed the volunteer inmates to remove the food tray. Diaz Dep. 73:11-13.

At 8:40 a.m., jail staff observed Carmig-nani sleeping, with his chest rising and falling. CSF ¶ 45. Deputy Thomas McCloskey took over the tower deputy position from Deputy Johnson for the day-shift. Fiol Deck, Ex. 13 (McCloskey Dep.) 40:11-15, Dkt. No. 131-4.

At approximately noon, Carmignani was found not breathing. CSF ¶ 46. Trustee Diaz had observed Carmignani at lunch time and told the Deputy who was serving lunch that Carmignani was in the same position he had been in six hours before. Diaz Dep. 74:13-76:7. Jail deputies and medical personnel made efforts to resuscitate Carmignani. CSF ¶ 47. He was transported to the hospital, where he was later pronounced dead. Id. ¶ 48.

B. The Plaintiffs

Carmignani leaves behind his daughter, Amaya. Id. ¶ 52. She is represented in this action by her mother, Jamie Ball. Dkt. No. 90 (Order appointing Jamie Ball as Amaya’s Guardian ad Litem). Carmigna-ni’s mother, Lynnette Frary, is also a plaintiff in this suit. The Alameda Superi- or Court named Frary the administrator of Carmignani’s estate. Dkt. No. 131-9. Frary does not claim any loss of financial support from Carmignani. CSF ¶ 53. Plaintiff Heather Howard was Carmigna-ni’s wife at the time of his death. Id. ¶ 1.

C. Marin County Jail

The Marin County Jail Policy 11-21 outlines the duties of Lockdown deputies. Johnson Dep. 49:19-50:25 & Ex. 1. Section 11-21 required Lockdown deputies to conduct “formal and informal counts,” but contains no reference to hourly safety checks. Id., Ex. 1. Deputy Johnson testified that he did not recall if there was a written procedure or policy for how safety checks should be performed in the Jail, and he did not recall a written procedure as to how to perform safety checks by a tower deputy. Johnson Dep. 88:3-89:3. He also testified that there was no policy or procedure to vary the normal cell check routine in Ad Seg if an inmate housed there was in detox for narcotics use. Id. at 92:6-24. The County’s “person most knowledgeable” witness, Sergeant James Hickey, testified that there was no policy or procedure at the Jail for how to conduct hourly safety checks in Ad Seg. Hickey Dep. 40:17-20. He also agreed that the Jail’s policy and procedures manual did not address safety check requirements. Id. at 74:5-21. Additionally, Sergeant Hickey testified that he was aware that deputies’ use of “tower checks” had been happening prior to 2011. Id. at 42:15-43:6. Sergeants reviewed the pod logs daily, including logs that showed the deputies performing “tower checks.” Id. at 73:11-74:2.

Sergeant Hickey further testified that the deputies were not responsible for monitoring medical needs; rather, the jail nurses are responsible for such monitoring. CSF ¶ 131. According to Sergeant Hickey, there were no policies or procedures in 2011 requiring the Jail’s medical staff to alert the custodial staff as to medical concerns for prisoners entering the Jail’s general population. Hickey Dep. 36:2-10. There are also electronic files containing inmates’ medical information on the computer system available to the Jail deputies, but there is no policy or procedure requiring them to review this information. Id. at 36:19-37:12.

The Marin County Jail is biennially inspected by the Board of State and Community Corrections (BSCC). See Ganter Decl. ¶¶ 8-9, Dkt. No. 102; Dkt. No. 102-1 & 2, Ex. A (2008-2010 Report) and Dkt. No. 102-3, Ex. B (2010-2012 Report) (collectively, the “Biennial Reports”). On April 15, 2009, the BSCC conducted a pre-inspection briefing with facility managers and administrators. 2008-2010 Report at 1. The following month, on May 14, 2009, BSCC inspected the jail and holding facility for compliance with physical plant and operational requirements in the California Code of Regulations Titles 15 and 24, Minimum Standards for Local Detention Facilities. Id. The inspection also included walking through both facilities, reviewing selected policies and supporting documentation, as well as interviewing staff. Id. After completing its inspection, the BSCC issued an inspection report consisting of, among other things, “procedures” checklists addressing applicable Title 15 sections. Id. at 2. The following is an excerpt from the 2008-2010 Biennial Report (see id. at 8):

Both Biennial Reports were sent to Sheriff Robert Doyle. 2008-2010 Report at 1; 2010-2012 Report at 1.

LEGAL STANDARD

Summary judgment is proper where the pleadings, discovery and affidavits demonstrate that there is “no genuine dispute as to any material fact and [that] the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The party moving for summary judgment bears the initial burden of identifying those portions of the pleadings, discovery, and affidavits that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Material facts are those that may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id.

Where the moving party will have the burden of proof on an issue at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir.2007). On an issue where the nonmoving party will bear the burden of proof at trial, the moving party can prevail merely by pointing out to the district court that there is an absence of evidence to support the nonmoving party’s case. Celotex, 477 U.S. at 324-25, 106 S.Ct. 2548.

If the moving party meets its initial burden, the opposing party must then set forth specific facts showing that there is some genuine issue for trial in order to defeat the motion. Fed.R.Civ.P. 56(e); Anderson, 477 U.S. at 250, 106 S.Ct. 2505. It is not the task of the Court to scour the record in search of a genuine issue of triable fact. Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir.1996). The Court “reifies] on the nonmoving party to identify with reasonable particularity the evidence that precludes summary judgment.” Id.; see also Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir.2010). Thus, “[t]he district court need not examine the entire file for evidence establishing a genuine issue of fact, where the evidence is not set forth in the opposing papers with adequate references so that it could conveniently be found.” Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir.2001). If the nonmoving party fails to make this showing, “the moving party is entitled to a judgment as a matter of law.” Celotex, 477 U.S. at 323, 106 S.Ct. 2548 (internal quotations omitted).

DISCUSSION

Plaintiffs bring claims under 42 U.S.C. § 1983 against the County of Marin, jail staff, and Sheriff Doyle for violations of Carmignani’s constitutional rights, as well as state law negligence claims against Nurses Fetterly and Lesher. In Parts AC of this Order, the Court considers Defendants’ challenges to Plaintiffs’ constitutional claims against (A) jail staff (B) Sheriff Doyle, and (C) the County of Marin in its municipal capacity. In Parts D-E, the Court considers Defendants’ challenges to Plaintiffs’ state law claims.

A. Plaintiffs’ Section 1983 Claim — Deputy Defendants

“Section 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a method for vindicating federal rights elsewhere conferred.’ ” Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (citation omitted). Thus, to prevail on a Section 1983 claim, a plaintiff must show: (1) the deprivation of any rights, privileges, or immunities secured by the Constitution; (2) by a person acting under the color of state law. 42 U.S.C. § 1983. There is no dispute that the deputy Defendants acted under the color of law; thus, the issue is whether them conduct deprived Cartnignani of his constitutional rights.

Plaintiffs allege that Marin County, the Jail deputies, and Sheriff Doyle violated Carmignani’s constitutional rights through deliberate indifference and callous disregard for his serious medical needs while in custody of the Jail. As Carmignani was a detainee, not yet charged or convicted of a crime, Plaintiffs’ claims for failure to provide care for his serious medical needs are analyzed under the substantive due process clause of the Fourteenth Amendment. Lolli v. Cnty. of Orange, 351 F.3d 410, 418-19 (9th Cir.2003). While a detainee’s rights arise under the Due Process Clause of the Fourteenth Amendment, the guarantees of the Eighth Amendment guide courts and provide a minimum standard of care for determining detainees’ rights, including the right to medical care. Oregon Advocacy Ctr. v. Mink, 322 F.3d 1101, 1120 (9th Cir.2003). The Fourteenth Amendment “imposes, at a minimum, the same duty the Eighth Amendment imposes: persons in custody have the established right to not have officials remain deliberately indifferent to their serious medical needs.” Gibson v. Cnty. of Washoe, 290 F.3d 1175, 1187 (9th Cir.2002) (citation omitted).

1. Legal Standards: Deliberate Indifference & Qualified Immunity

An official may be held liable under Section 1983 if he or she was “deliberately indifferent” to a serious medical need. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir.2006). To prove this claim, a plaintiff must show that he was: (1) confined under conditions posing a “substantial risk of serious harm,” and (2) that the officials were deliberately indifferent to that risk. Clouthier v. Cnty. of Contra Costa, 591 F.3d 1232, 1244 (9th Cir.2010) (citing Lolli, 351 F.3d at 420). “Deliberate indifference” has both subjective and objective components. Labatad v. Corr. Corp. of Am., 714 F.3d 1155, 1160 (9th Cir.2013). A prison official must “be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and ... must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Liability may follow only if a prison official “knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.” Labatad, 714 F.3d at 1160 (quoting Farmer, 511 U.S. at 847, 114 S.Ct. 1970); see also Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir.2002) (“Deliberate indifference may be reflected through either action or inaction such as denial, delay, or intentional interference with medical treatment.”).

“The doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Mattos v. Agarano, 661 F.3d 433, 440 (9th Cir.2011) (citing Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009); additional citation omitted)). “Qualified immunity shields an officer from liability even if his or her action resulted from a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.” Id. (citation and quotation marks omitted). “The purpose of qualified immunity is to strike a balance between the competing need to hold public officials, accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Id. (citation and quotation marks omitted).

In determining whether an official is entitled to qualified immunity, courts employ a two-pronged inquiry: first, did the officer violate the plaintiffs constitutional right; if the answer to that question is “yes,” courts must then determine whether the constitutional right was “clearly established in light of the specific context of the case” at the time of the events in question. Id. (citing Robinson v. York, 566 F.3d 817, 821 (9th Cir.2009) and Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). Courts are “permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Lal v. California, 746 F.3d 1112, 1116 (9th Cir.2014) (citation omitted), cert. denied, 563 U.S. 731, 135 S.Ct. 455, 190 L.Ed.2d 331 (2014).

“For the second step in the qualified immunity analysis&emdash;whether the constitutional right was clearly established at the time of the conduct&emdash;the critical question is whether the contours of the right were ‘sufficiently clear’ that every ‘reasonable official would have understood that what he is doing violates that right.’ ” Mattos, 661 F.3d at 442 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 131 S.Ct. 2074, 2083, 179 L.Ed.2d 1149 (2011); some internal marks omitted). “The plaintiff bears the burden to show that the contours of the right were clearly established.” Clairmont v. Sound Mental Health, 632 F.3d 1091, 1109 (9th Cir.2011). “[WJhether the law was clearly established must be undertaken in light of the specific context of the case[.]” Estate of Ford v. Ramirez-Palmer, 301 F.3d 1043, 1050 (9th Cir.2002) (citation and internal marks omitted). In making this determination, courts consider the state of the law at the time of the alleged violation and the information possessed by the official to determine whether a reasonable official in a particular factual situation should have been on notice that his or her conduct was illegal. Inouye v. Kemna, 504 F.3d 705, 712 (9th Cir.2007); Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (the “salient question” to the qualified immunity analysis is whether the state of the law at the time gave “fair warning” to the officials that their conduct was unconstitutional). “[WJhere there is no case directly on point, ‘existing precedent must have placed the statutory or constitutional question beyond debate.’ ” C.B. v. City of Sonora, 769 F.3d 1005, 1026 (9th Cir.2014) (citing al-Kidd, 131 S.Ct. at 2083). An official’s subjective beliefs are irrelevant. Inouye, 504 F.3d at 712.

2. Application to the Case at Bar

Plaintiffs assert that Deputies Johnson, McCloskey, and Hammer, as well as Nurse Fetterly, violated Carmignani’s Fourteenth Amendment rights by acting with deliberate indifference to his serious medical need. The dispute centers on whether Defendants knew of this need; Defendants argue that none of the individual Defendants had the requisite knowledge.

a. Deputy Johnson

Defendants argue that “Plaintiffs’ own claim of purported lapses in communication between the medical staff and deputies illustrates that [the deputies] were not deliberately indifferent to Decedent’s claimed serious medical condition as they remained unaware of Decedent’s allegedly serious medical condition.” Reply at 10. But this does not necessarily hold true for Deputy Johnson. Deputy Johnson recalled seeing a nurse’s statement, which he identified as the corrections entry that noted “Inmate stated that he will ‘crash hard.’ Please monitor inmate.” Johnson Dep. 106:18; Ex. 5. Additionally, Deputy Johnson acknowledged he was aware that Car-mignani had drugs in his possession when he came to jail and that Novato Police came to visit Carmignani about stealing medications; Deputy Johnson also testified that he knew arrestees often try to dispose of incriminating evidence by ingesting it. Id. at 117:6-9; 116:11-117:13.

On summary judgment, the Court must view the evidence in the light most favorable to the non-moving party&emdash;in this case, the Plaintiffs. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505. Under that standard, a reasonable jury could find that Deputy Johnson was aware of the substantial risk to Carmignani and, despite the warning in the jail entry and his knowledge of Carmignani’s drug possession, “failed adequately to respond” by providing Carmignani with additional or closer monitoring. Lemire v. Cat Dep’t of Corrs. & Rehab., 726 F.3d 1062, 1082 (9th Cir.2013). While Deputy Johnson may have conducted regular checks from the Tower, a jury could find that these checks were inadequate and resulted in the delay or denial of his medical treatment. Among other things, there is conflicting evidence whether (1) Deputy Johnson could have seen Carmignani or his bed from the Tower (see, e.g., Johnson Dep. 36:22-37:5; 77:13-18; 79:2-8; 84:5-8; 175:13-20; 182:1-8; Martinelli Decl. ¶ 37), and (2) whether listening in to Carmignani’s cell via the intercom could have in fact detected the sounds of breathing. See, e.g., Johnson Dep. 90:5-16; Fiol Decl., Ex. 1 (Begault Dep.) 13:24-14:4; 49:25-50:6; 63:18-64:20; 66:5-25; Dkt. No. 131-2. Additionally, Deputy Johnson could have called an MRD to check on Carmignani at any time, but he never did so. Although a jury could ultimately find Deputy Johnson’s actions reasonable under the circumstances, the Court cannot make that determination on summary judgment in the face of conflicting evidence. Plaintiffs’ evidence establishes a genuine dispute of material fact as to whether Deputy Johnson was indeed aware of a substantial risk to Carmignani and then disregarded that risk by failing to take reasonable measures to abate it by, for instance, more closely and regularly monitoring Carmignani.

Where the evidence indicates a constitutional violation, the Court proceeds to the second tier of the immunity analysis. Estate of Ford, 301 F.3d at 1049. The second tier in the immunity analysis is “whether the right was clearly established,” which is an objective but fact-specific inquiry. Inouye, 504 F.3d at 712. Here, Plaintiffs argue that Deputy Johnson is not entitled to qualified immunity because his conduct violated Title 15, section 1027 of the California Code of Regulations, which they assert codifies inmates’ constitutional rights. Section 1027 requires that “a sufficient number of personnel shall be employed in each local detention facility to conduct at least hourly safety checks of inmates through direct visual observation of all inmates.” CabCode Regs. tit. 15, § 1027. The code defines “safety checks” as “direct, visual observation ... to provide for the health and welfare of inmates.” Id. § 1006. Plaintiffs contend that a reasonable jail official in Deputy Johnson’s position would have known that he was required to conduct hourly direct, visual observations of inmates under section 1027. According to Plaintiffs’ expert witness, Ronald Martinelli, a former director of a California Commission on Peace Officer Standards & Training (POST) police and corrections academy, “[t]he necessity for the performance of hourly safety checks is part of the most basic CA — POST training taught to cadets in California’s police academies prior to their qualification to serve in entry level positions as custodial officers in jails and prisons throughout the state.” Martinelli Deck ¶ 70. As Deputy Johnson did not conduct such checks, Plaintiffs contend his actions were unlawful.

Assuming for the sake of argument that section 1027 accurately represents the contours of an inmate’s constitutional rights, Defendants have shown that a reasonable official in Deputy Johnson’s position could “reasonably believe[ ] that [he was] in compliance with all sections of Title 15 including section 1027 based on the fact that [the Jail] passed the BSCC’s biennial inspections which specifically looked for violations as to section 1027.” Reply at 11. Plaintiffs do not dispute that the BSCC’s Biennial Reports confirmed that the Jail’s safety checks were complaint with section 1027. Although Plaintiffs point out that BSCC did not issue a report in the year of Carmignani’s death, they have not shown that Defendants acted differently on days in question compared with the dates on which the BSCC inspections took place. In fact, Plaintiffs agree that the allegedly inadequate “safety checks” were happening in the same way for years prior to Carmignani’s death. See Opp’n at 9. Thus, even if Deputy Johnson received training on how to conduct safety checks under section 1027, this evidence in the face of the BSCC inspections reveals at most an open legal question on how to conduct safety checks under section 1027, and “qualified immunity gives government officials breathing room to make reasonable but mistaken judgments about open legal questions!.]” Padilla v. Yoo, 678 F.3d 748, 758 (9th Cir.2012).

But this is not the end of the inquiry. First, section 1027 does not describe how often an inmate should be monitored in light of an identified medical need, and neither did the BSCC Report at the time. While “the existence of a statute or ordinance authorizing particular conduct is a factor which militates in favor of the conclusion that a reasonable official would find that conduct constitutional,” Grossman v. City of Portland, 33 F.3d 1200, 1209 (9th Cir.1994), here neither section 1027 nor the BSCC Report explains how to treat inmates with a medical need or otherwise clearly justify Deputy Johnson’s conduct in this case. Second, the fact that the requirements of section 1027 may not be clearly established in the context of this case does not mean that, overall, the state of the law at the time did not otherwise give Deputy Johnson “fair warning” that his conduct was unconstitutional. See id. (“Where [an ordinance] authorizes official conduct which is patently violative of fundamental constitutional principles, an officer who enforces that statute is not entitled to qualified immunity.”). In other words, the “legal question” here is not whether section 1027’s requirements are clearly established but whether the Constitution’s requirements are clearly established.

The “general law regarding the medical treatment of prisoners was clearly established” well before Carmignani was placed custody in 2011. See Clement v. Gomez, 298 F.3d 898, 906 (9th Cir.2002) (citation omitted). Specifically, before 2011, it was “clearly established that officers could not intentionally deny or delay access to medical care.” Id. (citing Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)); see also Wereb v. Maui Cnty., 727 F.Supp.2d 898, 916-18 (D.Haw.2010) on reconsideration in part on other grounds, 830 F.Supp.2d 1026 (D.Haw.2011) (finding potential constitutional violations and qualified immunity unavailable to jail staff in similar circumstances); Ringuette v. City of Fall River, 888 F.Supp. 258, 269-70 (D.Mass.1995) (finding qualified immunity “intertwined with the correlative jury question!,]” and “hingfing] on material issues of relevant' fact that remain in dispute: the extent of the monitoring, the reasons for failure to monitor, whether and when [plaintiff] declined food and water, his appearance during the monitoring, etc.”).

While Plaintiffs did not provide case law on point, viewing the facts in the light most favorable to them, a reasonable jury could find that Deputy Johnson’s failure to take any action to respond to the increased risk to Carmignani’s health caused the delay or denial of medical care to Carmignani. Specifically, rather than taking additional steps to ensure that Car-mignani was monitored, Plaintiffs’ evidence suggests that Deputy Johnson conducted only his typical tower checks, which — at most — allowed Deputy Johnson to only see a quarter of Carmignani’s bed from a considerable distance. Although Deputy Johnson testified that there was no Jail procedure or policy for increased monitoring of inmates with medical needs in Ad Seg (Johnson Dep. 92:6-24), the lack of such a policy or procedure does not make Deputy Johnson’s conduct reasonable. A reasonable official in Deputy Johnson’s position would have understood that placing an inmate with a perceived medical need in a cell where-the inmate cannot be seen, and then not taking any other precautions to monitor or observe that inmate, is not taking reasonable measures to abate the risk to that inmate and effectively causes the delay or denial of medical care. At the time Carmignani was under Deputy Johnson’s care and custody, viewing the facts in the light most favorable to the Plaintiffs, a “reasonable official would have understood that what he is doing violates” Carmigna-ni’s right not to have his medical needs treated with deliberate indifference. Mattos, 661 F.3d at 442 (quoting al-Kidd, 131 S.Ct. at 2083). Accordingly, Deputy Johnson is not entitled to qualified immunity, and Defendants’ Motion for Summary Judgment on Plaintiffs’ Section 1983 claim against Deputy Johnson is DENIED.

b. Deputy McCloskey

There is no evidence that Deputy McCloskey knew of any risk to Carmigna-ni such that his subsequent actions could be found to have been made with a sufficiently culpable state of mind. There is no indication that any other jail officials ever reported any of their observations to Deputy McCloskey or otherwise openly expressed their belief to him that Carmigna-ni was in need of medical assistance. Plaintiffs’ own statement of fact admits as much. See CSF ¶ 129 (“Deputy McClos-key ... was not aware that Mr. Carmigna-ni’s[sic] has been observed for opiate detoxification or withdrawal.... He was not aware of any of the things that the medical staff knew about Mr. Carmignani: including his admitting to taking opiates ... his presentation with pinpoint eyes, his expressed expectation that he would ‘crash hard,’ or his request for assurance that his cell would have a working intercom.”). Nor is there evidence showing that Deputy McCloskey was made aware of Carmigna-ni’s condition through any other means. See McCloskey Dep. 66:19-67:7; 68-2-6. While Plaintiffs argue that Deputy McCloskey, like Deputy Johnson, failed to conduct direct, visual safety checks as required by Title 15, section 1027, Plaintiffs have not shown that Deputy McCloskey was subjectively aware of Carmignani’s medical need or any substantial risk to him such that the checks Deputy McCloskey conducted could be found to be evidence of deliberate indifference.

Plaintiffs further assert that Deputy McCloskey could have looked at Carmig-nani’s inmate records on the computer to know of his medical need, but this evidence shows only that Deputy McCloskey should have been aware of Carmignani’s medical need, not that he in fact was aware of such a need. See Farmer, 511 U.S. at 838, 114 S.Ct. 1970 (“[A]n official’s failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, cannot under our cases be condemned as the infliction of punishment.”); see also Dean v. City of Fresno, 546 F.Supp.2d 798, 813 (E:D.Cal.2008) (officers did not violate decedent’s right to medical care where evidence suggested they should have suspected decedent had swallowed cocaine but the evidence was not strong enough not support a finding that the officers actually knew this event occurred); Wereb, 727 F.Supp.2d at 913 (“Individual Defendants’ subjective knowledge that [the decedent] could have been monitored more closely or more thoroughly is not commensurate with subjective knowledge that [the decedent] faced a substantial risk due to a lack of close or thorough monitoring.”). Accordingly, Defendants’ Motion for Summary Judgment on Plaintiffs’ Section 1983 claim against Deputy McCloskey is GRANTED,

c. Deputy Hammer

While there is no evidence that Deputy Hammer knew Carmignani had ingested illegal drugs or was predisposed to any other medical need, there is a genuine dispute of material fact as to whether she was aware of Carmignani’s serious medical need when she encountered him on the morning of his death. Deputy Hammer testified that she tried to wake Carmigna-ni, asking him if he wanted breakfast, but he did not respond. Hammer Dep. 121:23-122:2. She testified that she tried talking to him, but he did not respond except for snoring; his eyes stayed closed, and she did not observe him move. Id. at 120:8-13; 120:25-121:20. Deputy Hammer also testified that she elevated her voice to get Carmignani’s attention; even when she yelled, he did not respond. Id. at 145:22-146:4. She also knocked on the window of Carmignani’s cell, knocking three or four times and characterizing her knock as “hard.” Id. at 122:3-21. The knocks elicited no response from Carmig-nani other than perhaps snoring. Id. at 122:22-24. At her deposition, Deputy Hammer was read a statement made by Trustee Diaz, which stated that Deputy Hammer had called out to Carmignani for approximately one minute and that Trustee Diaz remembered commenting to Deputy Hammer that Carmignani “looks dead.” Id. at 134:24-135:9. Deputy Hammer did not dispute this statement but instead stated that she does not remember. Id. at 135:15-20. Deputy Hammer also reported to the Deputy Johnson over her radio that Carmignani had “refused” breakfast. Id. at 124:14-21. Deputy Hammer instructed the trustees to remove the food tray from the access slot and move on. Diaz Dep. 73:11-13.

There is a genuine dispute of material fact as to whether Deputy Hammer acted with deliberate indifference to Car-mignani’s serious medical need. A medical need is serious “if the failure to treat the [detainee’s] condition could result in further significant injury or the unnecessary and wanton infliction of pain.” Jett, 439 F.3d at 1096. There is evidence that Deputy Hammer was aware that Carmignani’s failure to respond could give rise to knowledge of a serious medical need. Another jail deputy, Anthony Thune, testified that “we were taught if we have a person that cannot respond to you, that will not wake up, we’re going to call for medical and provide whatever assistance we can until they get there, and then assist medical with whatever assistance they need. Q. [ ]: That’s something you were taught here at the jail? A. Yes.” Thune Dep. 29:15-23, Dkt. No. 186, Ex. 1. Deputy Johnson likewise agreed that when he worked in Deputy Hammer’s position, when an inmate does not get up to accept the meal, his training and practice is to obtain an “audible declination or gesture” that the prisoner does not want his meal. Johnson Dep. 186:4-187:4. Here, Deputy Hammer yelled and knocked hard on Carmignani’s door but received no response from him other than perhaps a snore. Then, when Deputy Hammer radioed Deputy Johnson, she indicated that Carmignani had “refused” food, rather than telling Deputy Johnson that Carmignani did not wake despite her repeated attempts to awaken him.

A reasonable jury could find that Deputy Hammer acted with deliberate in: difference by denying, delaying, and interfering with Carmignani’s medical treatment when she failed to ascertain the circumstances of his prolonged unconsciousness as well as when she radioed Deputy Johnson falsely suggesting that Carmignani had consciously “refused” breakfast. There is also a triable issue of fact as to whether Deputy Hammer observed Carmignani’s physical state as described by Trustee Diaz. Based on the evidence presented, a reasonable juror could conclude that Deputy Hammer “kn[ew] of and disregarded] an excessive risk to [Carmignani’s] health or safety” and that she was “both ... aware of facts from which the inference could be drawn that a substantial risk of serious harm exist[ed], and ... also dr[e]w the inference.” Farmer, 511 U.S. at 837, 114 S.Ct. 1970. Thus, summary judgment is inappropriate on this ground.

Likewise, the Court cannot find that Deputy Hammer is entitled to qualified immunity. Before Carmignani’s death in 2011, it was “clearly established that officers could not intentionally deny or delay access to medical care.” Clement, 298 F.3d at 906. Viewing the facts in the light most favorable to the Plaintiffs, a reasonable jury could find that Deputy Hammer failed to take any action at all to respond to Carmignani’s obvious medical need when he was unresponsive to her forceful attempts to wake him and in light of his physical condition as described by Trustee Diaz. On these facts, it would be clear to a reasonable official in Deputy Hammer’s position that her actions were “unlawful in the situation [s]he confronted.” Estate of Ford, 301 F.3d at 1050 (quotation omitted). A “reasonable official” in Deputy Hammer’s position would have understood that her actions violated Carmignani’s right not to have his medical need treated with deliberate indifference. Mottos, 661 F.3d at 442 (quoting al-Kidd, 131 S.Ct. at 2083). Accordingly, Deputy Hammer is not entitled to qualified immunity and summary judgment on this claim is DENIED.

d. Nurse Fetterly

Plaintiffs’ operative Complaint does not include a Section 1983 claim against either Nurse Fetterly or Nurse Lesher. See generally Second. Am. Compl. However, Plaintiffs’ opposition brief argued the merits of those claims as if they had, and Defendants did not recognize Plaintiffs’ oversight in their briefing. Apparently neither party recognized this defect until the Court raised the issue at the hearing. Now Plaintiffs have filed an official motion for leave to amend their complaint (for a third time) — but only for Nurse Fetterly; they have apparently decided to forgo their previously argued constitutional claims against Nurse Lesher. See Dkt. No. 180. Meanwhile, Defendants adamantly oppose Plaintiffs’ motion to amend despite already mounting a defense on Nurse Fetterly’s behalf. Dkt. No. 182.

The Ninth Circuit has recently reiterated that “when issues are raised in opposition to a motion to summary judgment that are outside the scope of the complaint, ‘the district court should ... construe[ ] the matter raised as a request pursuant to rule 15(b) of the Federal Rules of Civil Procedure to amend the pleadings out of time.’ ” Desertrain v. City of Los Angeles, 754 F.3d 1147, 1154 (9th Cir.2014) (quoting Apache Survival Coal. v. United States, 21 F.3d 895, 910 (9th Cir.1994); internal marks omitted)). “Five factors are taken into account to assess the propriety of a motion for leave to amend: bad faith, undue delay, prejudice to the opposing party, futility of amendment, and whether the plaintiff has previously amended the complaint.” Id. “The court should freely permit an amendment when doing so will aid in presenting the merits and the objecting party fails to satisfy the court that the evidence would prejudice that party’s action or defense on the merits.” Fed.R.Civ.P. 15(b)(1).

Here, as noted, both sides apparently were under the misconception that the constitutional claims had already been asserted against Nurse Fetterly. The Defendants and Plaintiffs fully argued the issues related to the constitutional claims against the individual jail staff, and Defendants have not otherwise shown how they have been or could be prejudiced by permitting constitutional claims against Nurse Fetterly. See Reply at 11 (specifically arguing that Nurse Fetterly is entitled to qualified immunity as a defense to Plaintiffs’ section 1983 claim). Thus Defendants’ objections do not satisfy the Court that the addition of Nurse Fetterly would prejudice their defense. See Desertrain, 754 F.3d at 1155 (finding “unpersuasive” any claim of surprise or prejudice by defendants where both parties fully argued claim at issue in their summary judgment briefings); see also Feduniak v. Old Republic Nat'l Title Co., 2014 WL 6603253, at *5 (N.D.Cal. Nov. 20, 2014) (granting leave to amend where both parties apparently understood the complaint to assert the disT puted theories and considering those theories on summary judgment).

Nor is there evidence of bad faith or undue delay. While Plaintiffs’ overall tardiness in seeking to amend is certainly not commendable, the Court agrees that Plaintiffs moved- reasonably promptly to amend when they were apprised of the inconsistency in their Complaint and opposition brief. Although Plaintiffs have had the opportunity to amend their Complaint before, as discussed, it appears. that both parties were under the misconception that the constitutional claims had already been asserted. Having considered the pertinent factors, the Court will thus construe Plaintiffs’ argument against Nurse Fetterly on the merits, conforming to the evidence and arguments raised at this time.

The Court finds there is a question of fact about what Nurse Fetterly believed the risk to Carmignani to be and whether she acted with deliberate indifference to that risk., Nurse Fetterly was aware that Carmignani was “definitely under the influence of something[,]” and these observations caused her to believe “he needed to be observed in booking longer. He was not ready to go upstairs.” Fetterly Dep. 145:1-8. This indicates both her awareness of the risk to Carmignani and her understanding that such a risk was better confronted at the nursing station. Nurse Fetterly dlso listed Carmig-nani as “high risk” and “unstable” in the inmate status report and indicated that he should be observed for opiate detoxification. Johnson Dep., Ex. 4; Fetterly Dep. 186:4-17; 187:1-11. The corrections entry further indicates that she communicated to another jail official that Carmignani had taken street morphine pills, that he stated he would “crash hard,” and to “Please monitor inmate.” See Johnson Dep., Ex. 5.

This evidence suggests that Nurse Fet-terly identified Carmignani as high risk and understood that there was enough of a risk to Carmignani’s safety to warrant additional precautionary measures. This is different from cases where the official had no knowledge of the critical facts giving rise to the detainee’s serious medical need. Cf. Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir.2004) (no deliberate indifference where prison doctor administered prescription drugs causing inmate’s fatal overdose where doctor had no knowledge that inmate had already ingested large amounts of contraband prescription drugs). Here, Nurse Fetterly knew that Carmignani. had ingested street morphine pills and admitted that Carmignani made it “very well-known” to her that he was worried about his health and had concerns about' that he would “crash hard” and “detox bad.”

Taking the facts in the light most favorable to Plaintiffs, a reasonable jury could find that Nurse Fetterly recognized a serious risk to Carmignani and then failed to take reasonable precautionary steps to protect Carmignani from that risk. Deliberate indifference may be shown through inaction and through withholding medical treatment. See Lolli, 351 F.3d at 419; Hallett, 296 F.3d at 744. A reasonable jury could find that Nurse Fet-terly acted with deliberate indifference when she allowed Carmignani to go into the Jail’s general population prior to when Carmignani began to “crash hard” or “detox bad” as he made “very-well known” to her that he would or by failing to take action to ensure that Carmignani was consistently monitored. Likewise, a reasonable jury could find that it was not reasonable to expect Carmignani to self-monitor for adverse drug reactions and, in such an event, seek help via an intercom. Based on the evidence presented, a reasonable juror could conclude that Nurse Fetterly “kn[ew] of and disregarded] an excessive risk to [Carmignani’s] health or safety” by failing to take reasonable measures to abate that risk. Farmer, 511 U.S. at 837, 114 S.Ct. 1970. On the other hand, a jury could find that Nurse Fetterly did not realize the extent of the risk Carmignani faced, as he apparently kept from her the extent of his drug usage; thus, as a jury could find that she took objectively reasonable measures to abate the risk she perceived by, among other things, checking Carmignani’s vital signs and keeping him for monitoring for approximately four hours.

On summary judgment, the Court must take the facts in the light most favorable to the non-moving party. While the resolution of the factual issues in this case may well relieve Nurse Fetterly of liability, if Plaintiffs’ version of the facts were to prevail, a reasonable jury might well conclude that she was deliberately indifferent to 'Carmignani’s serious medical needs. As it is “clearly established that officers [can] not intentionally deny or delay access to medical care,” Clement, 298 F.3d at 906, Nurse Fetterly is not presently entitled to qualified immunity on this claim. Defendants’ motion for summary judgment is therefore DENIED on Plaintiffs’ Section 1983 claim against Nurse Fetterly.

B. Section 1983 Claim — Supervisor Liability

Supervisory officials “may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior.” Ashcroft v. Iqbal, 556 U.S. 662, 676, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The term supervisory liability is therefore something of a “misnomer” because “[e]aeh Government official, his or her title notwithstanding, is only liable for his or her own misconduct.” Id. at 677, 129 S.Ct. 1937; see also Lemire, 726 F.3d at 1074-75 (“Vicarious liability may not be imposed on a supervisor for the acts of lower officials in a section 1983 action.”). Supervisory officials “cannot be held liable unless they themselves” violated a constitutional right. Iqbal, 556 U.S. at 683, 129 S.Ct. 1937.

However, a supervisor may still be held liable for under section 1983 upon a showing of either “(1) his or her personal involvement in the constitutional deprivation, or (2) a sufficient causal connection between the supervisor’s wrongful conduct and the constitutional violation.” Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir.2011); see also Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989) (“A supervisor is only liable for constitutional violations of his subordinates if [he] ... directed the violations, or knew of the violations and failed to act to prevent them.”). The requisite causal connection may be proved by (i) the supervisor’s “own culpable action or inaction in the training, supervision, or control of subordinates;” (ii) his “acquiescence in the constitutional deprivation of which a complaint is made;” or (iii) “conduct that showed a reckless or callous indifference to the rights of others.” Cunningham v. Gates, 229 F.3d 1271, 1292 (9th Cir.2000).

Plaintiffs provide little explanation about their theory of supervisory liability against Sheriff Doyle, but argue that “Sheriff Doyle’s legal duties are clear, and the multiple failures of his department to enact, train to [sic] and enforce necessary and state-mandated policies and procedures must be placed squarely on his doorstep.” Opp’n at 12. Defendants contend that Plaintiffs have failed to provide facts supporting these claims and also argue that Sheriff Doyle is entitled to qualified immunity. Mot. at 14-15; Reply at 8-9.

There is no evidence that Sheriff Doyle personally participated in any of his subordinates’ potential deliberate indifference to Carmignani; Sheriff Doyle was not present during the events in question. Additionally, Defendants argue there is no evidence Sheriff Doyle was responsible for any unconstitutional customs, policies, practices, and procedures giving rise to such deliberate indifference as alleged in Plaintiffs’ Complaint. They argue Sheriff Doyle was not in fact responsible for creating, evaluating, and modifying jail policies/procedures. Giacomini Brewer, Ex. N (Hickey Dep.) 20:19-22:1; 26:6-8, Dkt. No. 101-3. Rather, they assert that the jail captain is primarily responsible for implementation of policy at Marin County Jail. Id. at 30:9-11; Hickey Decl. ¶ 5.

In response, Plaintiffs argue that the responsibility for adopting and enforcing jail policies and procedures is assigned by Title 15, section 1029, which defines “Facility Administrators” as “the sheriff, chief of police, chief probation officer, or other official charged by law with the administration of a local detention facility/system.” See CaLCode Regs. tit. 15, § 1029 (emphasis added). The critical word in section 1029’s definition is “or” — the provision does not say the Sheriff must be the Facility Administrator. Additionally, Plaintiffs present Marin County Sheriffs Departmental Policies, Policy 1-2, which states that the Sheriff is the “Overall administrator of the Sheriff’s Department, charged by law with the administration of local detention facilities in Marin County.” Martinelli Deck, Ex. 4. The problem is that neither party provided evidence about Sheriff Doyle’s actual duties or whether he actually functioned as the jail administrator.

As the limited evidence available to the Court is conflicting, summary judgment is inappropriate at this time. There remains a material dispute as to Sheriff Doyle’s actions or inactions, and whether any of those actions could constitute a constitutional violation. Qualified immunity is likewise unavailable as the Court cannot determine at this point what if any actions Sheriff Doyle took in order to assess whether it would be clear to a reasonable supervisor that his conduct was unlawful. See Chavez v. United States, 683 F.3d 1102, 1110 (9th Cir.2012) (where a Section 1983 claim is brought against a supervising official, qualified immunity is taken into account, and a supervisor faces liability only where it would be clear to a reasonable supervisor that his conduct was unlawful in the situation he confronted); see also LaLonde v. Cnty. of Riverside, 204 F.3d 947, 953 (9th Cir.2000) (if “there is a material dispute as to the facts regarding what the [supervisor] actually did, the case must proceed to trial” (citing Act Up!/Portland v. Bagley, 988 F.2d 868, 873 (9th Cir.1993))). Accordingly, Defendants’ Motion for Summary Judgment on this claim is DENIED.

C. Section 1983 — Municipality Liability

Plaintiffs also bring Section 1983 claims against the County of Marin in its municipal capacity. A municipality or other local government may be liable under Section 1983 if the governmental body “subjects” a person to a deprivation of. rights or “causes” a person “to be subjected” to such deprivation. Monell v. N.Y. City Dep’t of Social Servs., 436 U.S. 658, 691-92, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). While municipalities cannot be held vicariously liable under Section 1983 for their employees’ actions, municipalities can be liable for policies, customs, practices, and or procedures that violate constitutionally protected rights. Id. at 691, 98 S.Ct. 2018. A plaintiff must go beyond the respondeat superior theory of liability and demonstrate that the alleged constitutional deprivation was the product of a policy or custom of the local governmental unit, because municipal liability must rest on the actions of the municipality and not the actions of the employees of the municipality. Connick v. Thompson, 563 U.S. 51, 131 S.Ct. 1350, 1359, 179 L.Ed.2d 417 (2011). The Supreme Court has emphasized that “[w]here a plaintiff claims that the municipality ... has caused an employee to [violate plaintiffs constitutional rights], rigorous standards of culpability and causation must be applied to ensure that the municipality is not held liable solely for the actions of its employee.” Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 405, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). Thus, “a plaintiff seeking to impose liability on a municipality under § 1983” is required “to identify a municipal ‘policy’ or ‘custom’ that caused the plaintiffs injury.” Hunter v. Cnty. of Sacramento, 652 F.3d 1225, 1232-33 (9th Cir.2011) (citations and quotation marks omitted).

“Official municipal policy includes the decisions of a government’s lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law.” Connick, 131 S.Ct. at 1359. Absent a formal governmental policy, a plaintiff must show a “longstanding practice or custom which constitutes the standard operating procedure of the local government entity.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir.1996), holding modified on other ground by Navarro v. Block, 250 F.3d 729 (9th Cir.2001). “[A]n act performed pursuant to a ‘custom’ that has not been formally approved by an appropriate decisionmaker may fairly subject a municipality to liability on the theory that the relevant practice is so widespread as to have the force of law.” Brown, 520 U.S. at 404, 117 S.Ct. 1382. Moreover, a policy of inaction may be a municipal policy within the meaning of Monell. See Long v. Cnty. of Los Angeles, 442 F.3d 1178, 1185 (9th Cir.2006); Fairley v. Luman, 281 F.3d 913, 918 (9th Cir.2002) (per curiam). “[A] local governmental body may be liable if it has a policy of inaction and such inaction amounts to a failure to protect constitutional rights.” Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th Cir.1992) (citing City of Canton v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)).

“To impose liability against a county for its failure to act, a plaintiff must show: (1) that a county employee violated the plaintiffs constitutional rights; (2) that the county has customs or policies that amount to deliberate indifference; and (3) that these customs or policies were the moving force behind the employee’s violation of constitutional rights. Long, 442 F.3d at 1186 (citing Gibson, 290 F.3d at 1193-94). For a policy to be the moving force behind the deprivation of a constitutional right, the identified deficiency in the policy must be “closely related to the ultimate injury.” Gibson, 290 F.3d at 1196 (citation omitted). Plaintiffs’ burden is to establish “that the injury would have been avoided” had proper policies been implemented. Id. (quotation omitted). Here, Plaintiffs have identified several policies and practices that they allege were the moving force behind the violations of Car-mignani’s constitutional rights.

1. Inadequate Monitoring Procedures

Plaintiffs challenge the County’s policy of allowing “safety checks” without hourly, “direct visual observation[s]” in violation of Title 15, section 1027 of the California Code of Regulations. CaLCode Regs. tit. 15, § 1027; see also id. § 1006 (defining “safety checks” as “direct, visual observation ... to provide for the health and welfare of inmates.”). Although Plaintiffs did not specifically state how this failure to comply with section 1027 led to a constitutional violation, the inference of this alleged noncompliance is, as stated by Plaintiffs’ Expert, Dr. Neal Benowitz, that “[h]ad [Carmignani] been monitored, his health care providers and others at the jail would have recognized when he became medically unstable” and would have responded in time to save Carmignani’s life. Giacomini Brewer Deck, Ex. G (Benowitz Report) ¶ 18, Dkt. No. 101.

The essence of Plaintiffs’ argument thus focuses on the Jail’s practice of inadequately monitorin