Hernandez v. Marion County Oregon et al
OPINION AND ORDER: Defendants' Motion for Summary Judgment 42 is GRANTED IN PART and DENIED IN PART as set forth in greater detail herein. Defendants Marion County Sheriff's Office, Marion County Jail, Sheriff Jason Myers, and Commander Sheila Lorance are dismissed with prejudice as redundant. Signed on 12/3/2017 by Judge Ann L. Aiken. (ck)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DARLENE HERNANDEZ, Conservator for
Jose Angel Rafaesl Hernandez II,
Case No. 3:15-cv-01070-AA
OPINION AND ORDER
MARION COUNTY, a political subdivision
of the State of Oregon; MARION COUNTY
SHERIFF'S OFFICE, as a department of
Marion County; MARION COUNTY JAIL,
a co1Tectional facility controlled by the
Marion County Sheriffs Department; JASON
MEYERS, in his capacity as Marion County
Sheriff; SHEILA LORANCE, in her capacity
as administrator of Marion County correctional
institutions; CURTIS HENCKEL, an
individual; and DOES 1-3,
AIKEN, District Judge:
This civil rights action concerns an attempted suicide. Plaintiff Darlene Hernandez, as
conservator for Jose Angel Rafael Hernandez II ("Hernandez"), alleges that individual and
agency defendants acted with deliberate indifference and negligence while Hernandez was in
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custody at the Marion County Jail ("MCJ"), causing Hernandez's serious injury by attempted
suicide. Plaintiff alleges violations of the Eighth Amendment to the United States Constitution
and the Oregon common law of negligence. Before me is defendants' motion for summary
judgment. As explained in greater detail below, defendants' motion is granted in part and denied
The following undisputed facts are those relevant and necessary to resolving this dispute.
In 2012, Hernandez pleaded guilty to Delivery of a Controlled Substance to a Minor (Heroin)
and Sexual Abuse in the Second Degree and was sentenced to 60 months' probation under the
supervision of Marion County Community Conections ("MCCC").
At his first monthly
probation meeting on January 15, 2013, on a form provided to Hernandez each time he would
visit his probation officer, Hernandez indicated that he had not "had thoughts or made plans to
kill [himself]." He indicated the same at his meeting with probation on March 20, 2013.
Sometime in April of 2013, Hemandez was admitted to mental health and drug addiction
treatment in Vancouver, WA.
On April 11, 2013, plaintiff contacted Deputy Bu1ton,
Hernandez's probation officer, and told her that she had admitted her son to mental health and
addiction treatment because he was "suicidal." Darlene Hernandez Dep 23:6-8 (doc. 50 at 9).
Beginning May 9, 2013, and through June 17, 2013, Hemandez's Chemical Dependency
Professional ("CDP") reported no discussion or mention of any suicidal thoughts or plans in the
course of their treatment; she made this notation a total of fifteen times over nearly 40 days.
During that same period, Hemandez continued to attend his monthly meetings with probation.
At his May 14, 2013 meeting, Hemandez told Deputy Groom, a probation officer filling in for
Deputy Burton, that he had been admitted to treatment in April because he was suicidal.
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However, he also noted that he was no longer suicidal. He indicated the same at his June 13,
2013 meeting with Deputy Button as well as at his next month's meeting on July 11, 2013.
On June 30, 2013, police visited Hernandez's residence in response to a call from his
then-girlfriend (and victim in his underlying sexual abuse conviction), E.R., who told police that
Hernandez was in the process of hanging himself. Police detennined that Hernandez was not at
risk and that the call was a "false alarm." Higgins Deel.
6. For that reason, the encounter was
not reported to Deputy Burton or anyone at MCCC.
Hernandez was admitted to MCJ on August 14, 2013 after being atTested for violating the
terms of his probation. He was housed at MCJ for three full days, from the afternoon of August
14 to the afternoon of August 17, and had only tln·ee conscious encounters with MCJ staff in that
time. His first encounter was his intake screening at 3:47 p.m. on August 14 by Jail Nurse
Pamela Lash. Ms. Lash identified numerous "open, weeping sores" on Hernandez's body and
placed him on "medical watch." Stewart Deel.
Hernandez's second encounter with MCJ staff occurred later that same day at 6:33 p.m.
Hernandez was interviewed by Deputy Russell Brazeal and asked if he had ever tried to hurt or
kill himself. Hernandez told Deputy Brazeal he had recently attempted suicide in April by using
"pills." Brazeal Deel.
3. Deputy Brazeal asked Hernandez if he was cu11'ently contemplating
suicide; Hernandez said that he was not.
Hernandez's final encounter with MCJ staff occurred the next day at approximately 10:30
a.m. He was examined by Dr. Aaron Vitells. He told Dr. Vitells that he picked at his skin
lesions because of his amdety and had been picking at them for several weeks. Dr. Vitells noted
that Hernandez appeared "significantly anxious" and was showing symptoms of heroin
withdrawal. Stewart Deel.~ 9. Dr. Vitells prescribed Hernandez medication both for his anxiety
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and his open sores. Immediately after the examination, Dr. Vitells reported his observations to
Dr. Lisa M. Stewart, mental health specialist at MCJ, who had planned to follow up with
Although Dr. Stewart observed Hernandez's intake screening with Ms. Lash, she would
never end up speaking with Hernandez. Her first attempt to do so occurred later on August 15,
2013, sometime after Hernandez's examination by Dr. Vitells. Hernandez was asleep at the
time, and Dr. Stewart did not wake him. Hernandez was asleep again the next day when Dr.
Stewmi visited him during her early afternoon rounds. Again she did not wake him. Dr. Stewart
"believed that plaintiff being asleep in the afternoon after taking his medication w a 6 i g n ,,-that the medication for his anxiety was working." Stewati Deel.
The following day, sheriffs deputies observed Hernandez sleeping again, this time "with
his back to the door." Montoya Deel. Ex. 18. That observation occurred at 12:35 p.m. on
August 17, 2013, when deputies made their security/welfare check of the medical "contact
isolation" unit. Id. Almost 25 minutes later, after over 48 hours in his cell without any contact
with anyone at MCJ, Hernandez was found hanging from the air vent in his cell. In the 24 hours
leading up to his suicide attempt, Hernandez could be heard sobbing through the walls of his cell.
Benton Dep. 5:22-6:11 (doc. 56 at 56-57).
Summary judgment is proper where the "movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter oflaw." Fed. R. Civ. P.
56(a). A grant of partial summary judgment is appropriate where genuine disputes of material
fact exist for only some claims. See Circle K Stores, Inc. v. Zillman, 827 F. Supp. 2d 1251, 1256
(D. Or. 2011) (citing Fed. R. Civ. P. 56(a) and noting that the standard for partial summary
Page 4 - OPINION AND ORDER
judgment is the same as the standard for summary judgment). An issue of material fact is
considered genuine "if the evidence is such that a reasonable jury could return a verdict for the
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
considering a motion for summary judgment, courts must draw all reasonable inferences in favor
of the nonmoving party. Id. at 255.
Summaiy Judgment on Plaintiffs' 42 U.S. C. § 1983 Claims is Granted in Part and
Denied in Part.
The Ninth Circuit Court of Appeals "has noted that the first question in any § 1983 action
is whether the section is the appropriate basis for a remedy." Ketchum v. Alameda Cly., 811 F.2d
1243, 1245 (9th Cir. 1987) (footnote omitted). A successful claim under § 1983 "requires two
essential elements: (1) the conduct that harms the plaintiff must be committed under color of
state law (i.e., state action), and (2) the conduct must deprive the plaintiff of a constitutional
Claims under § 1983 may allege unconstitutional acts by either individual persons or
local governments--or, as in this case, both. In her first claim, plaintiff alleges that defendants
Marion County, the Marion County Sheriffs Office ("MCSO"), MCJ, Sheriff Meyers, and
Commander Lorance violated Hernandez's Eighth Amendment rights in their management and
operation of MCJ.
In her second claim, plaintiff alleges violation of Hernandez's Eighth
Amendment rights by Sergeant Henckel and unnamed corrections officers as a result of their
deficient care of Hernandez while he was in their custody.
As to claim one, defendants aver that plaintiffs have not shown the existence of a
deficient policy, practice, custom, or procedure capable of giving rise to liability under§ 1983.
Responding to plaintiffs second claim, defendants maintain that plaintiffs have failed to
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establish that Sergeant Henckel was deliberately indifferent to the risk that Hernandez would
harm himself. Moreover, and regardless of the outcome of that inquiry, defendants also asse1i
that Sergeant Henckel is protected by qualified immunity.
Defendants' 1\1otionfor Summary Judgment on Plaintiff's§ 1983 Claims Against
lvfarion County is Denied.
Plaintiff avers four theories of Marion County's liability under § 1983: that it was the
policy or custom of Marion County (1) "to operate [MCJ] without adequate mental health
services'', (2) "to operate [MCJ] overcapacity," (3) to operate MCJ in a manner that is out of
compliance with State and County standards, and (4) to operate MCJ "in a manner that exhibited
deliberate indifference to [Hernandez's] Constitutional rights[.]" Comp!. iii! 31-34.
Local governnients 1 may by liable under § 1983 when "the action that is alleged to be
unconstitutional implements or executes a policy statement, ordinance, regulation, or decision
In their Motion for Summary Judgment, defendants assert as a preliminary matter that
"neither the [Marion County] Sheriffs Office nor the [Marion County] Jail is a 'public body'
that can be sued" under either§ 1983 or the OTCA. Def. Mot. Summ. J. 23-24. Defendants are
correct, although the analysis is more complicated than defendants' briefing would suggest.
Under Federal Rule of Civil Procedure 17(b), the capacity "to sue or be sued" is
determined "for a co1poration, by the law under which it was organized[.]" Thus, Oregon state
law controls whether an agency subdivision may be sued separately from the county of which it
is a part. This Comi has held that Oregon law does not authorize suits against a sheriffs office
distinct from its own county. See Updike v. Clackamas Cty., 2015 WL 7722410, *4 (D. Or. Nov.
30, 2015) ("[A] plaintiff may not separately sne Oregon entities such as the Clackamas County
Sheriffs Office."). It has held the same with respect to county jails. See Thomas v. Oregon,
2012 WL 1029139, *2 (D. Or. Jan. 30, 2012) ("The Multnomah County Inverness Jail is a
conectional facility belonging to and operated by Multnomah County, not a legal entity which
may be separately sued under § 1983."); Sanders v. Dickerson, 2010 WL 3824077, *5 (D. Or.
Aug. 13, 2010) ("[T]he Columbia County Jail is not a proper defendant, and [plaintiffs]
allegations should be construed as asserted against Columbia County[.]").
In addition, "[w]hen a plaintiff brings a lawsuit against a government officer in his
official capacity, a court treats the suit 'as a suit against the entity' that employs the officer."
Updike, 2015 WL 7722410 at *3 (quoting Kentucky v. Graham, 473 U.S. 159, 166 (1985)). A
comi may "dismiss as redundant a defendant sued in his or her official capacity" when the entity
the official represents is also paiiy to the suit. Id. (citing Ctr. for Bio-Ethical Reform, Inc. v. L.A.
Page 6 - OPINION AND ORDER
officially adopted and promulgated by that body's officers." i\1onell v. Dep 't of Soc. Servs. of
City of NY, 436 U.S. 658, 690 (1978). In her Response to Defendants' Motion for Summary
Judgment, plaintiff fails to identify any evidence creating a genuine issue of material fact that
defendants maintained an official policy with respect to any of her four theories of liability.
Plaintiff therefore cannot succeed under the "policy" p01iion of Monell.
But local gove1nments may also "be sued for constitutional deprivations visited pursuant
to governmental 'custom' even though such a custom has not received formal approval through
the body's official decisionmaking channels." Id at 690-91.
Thus, plaintiffs claims may
proceed if she can create a question of fact about the existence of an unofficial custom which led
to a deprivation of Hernandez's constitutional rights. Plaintiff offers no evidence that it was
Marion County's custom to operate MCJ overcapacity or out of compliance with state and local
standards; defendants are co1Tect that those theories are incapable of surviving their motion of
summary judgment. However, plaintiff has provided sufficient evidence to create a genuine
issue of material fact about whether it was the unofficial custom of Marion County to provide
inadequate mental health services to inmates at risk of suicide. For that reason, plaintiffs§ 1983
claim against Marion County will be allowed to proceed.
Cty. Sheriff Dep't, 533 F.3d 780, 799 (9th Cir. 2008)). Plaintiff sued Sheriff Myers and
Commander Lorance in their official capacities only, and all claims against those defendants are
also asserted against Marion County.
Accordingly, the alleged actions or inactions of the MCSO, MCJ, Sheriff Myers in his
official capacity, and Commander Lorance in her official capacity can only create liability for
Marion County; despite their listing as distinct parties in this case, the foregoing defendants
comprise only one legal entity for the purposes of § 1983 liability. Those defendants are
dismissed with prejudice.
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lvfCCC Deputies Are Not Policymakers Under the Monell Analysis, and
Plaintiff Fails to Establish the Existence ofan Official Policy.
The Supreme Comt in lvfonell extended § 1983 liability to local governments when
government policymakers officially adopt "a policy statement, ordinance, regulation, or
decision" that leads to a deprivation of an individual's federal constitutional rights. Monell, 436
U.S. at 690. In a subsequent case, Pembaur v. City of Cincinnati, the Comt gave extensive
guidance about how such a policy may be "officially adopted" for the purposes of Monell:
Municipal liability attaches only where the decisionmaker possesses final
authority to establish municipal policy with respect to the action ordered. The
fact that a particular official-even a policymaking official-has discretion in the
exercise of paiticular functions does not, without more, give rise to municipal
liability based on an exercise of that discretion. The official must also be
responsible for establishing final government policy respecting such activity
before the municipality can be held liable .... [W]hether an official had final
policymaking authority is a question of state law.
475 U.S. 469, 481-83 (1986) (footnotes and citations omitted).
Under Oregon state law, "each county sheriff has custody and control of all persons
legally committed or confined in the county local correctional facility of the county of the sheriff
during the period of the commitment or confinement." Or. Rev. Stat.§ 169.320(1). In addition,
the sheriff may adopt certain policies regulating the conditions of confinement "[u]nder the
direction of the county comt or board of county commissioners of the county" in which the jail is
located. Id.; see also Or. Rev. Stat. § 169.220 (establishing the duties of the county comt or
board of county commissioners with respect to care of county prisoners). Thus, in Oregon, the
county sheriff, the county comt, and the county commission have the "final authority to establish
municipal policy with respect to" the custody and control of detainees. Pembaur, 475 U.S. at
Page 8 - OPINION AND ORDER
An official with final policymaking authority may delegate that authority to a
subordinate. City of St. Louis v. Praprotnik, 485 U.S. 112, 130 (1988). Such a delegation may
take the form of a general grant of authority to make final policy in a particular arena. McLean
v. Pine Eagle Sch. Dist., No. 61, 194 F. Supp. 3d 1102, 1119 (D. Or. 2016). Alternatively, an
official with final policymaking authority may transform a decision by a subordinate into official
policy if that policy is "expressly approved" and is "cast in the fo1m of a policy statement."
Praprotnik, 485 U.S. at 130. But either way, the delegation of authority must be express; neither
"[s]imply going along with discretionary decisions made by one's subordinates" nor
"fail[ing] to investigate the basis of a subordinate's discretionary decisions" amounts to a
delegation of policymaking authority. Id.
With respect to policy, each of plaintiffs four theories above is premised on plaintiffs
belief that every employee of Marion County who interacted with Hernandez was a "final
policymaker." Pl.'s Resp. Defs.' Mot. Summ. J. 3. Plaintiff reasons that because every deputy
may initiate a suicide watch, every deputy is the final decisionmaker as to the suicide "policy"
for each individual inmate. That reasoning is not in accord with Monell and subsequent case
law. Oregon state law unambiguously identifies the final policymakers with respect to inmate
care and custody.
Accordingly, decisions by the sheriffs subordinates only become final
policies for the pmpose of Monell liability if a final policymaker delegated to those subordinates
the authority to make policy for the County or if they were presented to the sheriff, the county
court, or the county commission "in the form of a policy statement" and the relevant authority
"expressly approve[d]" them. See Praprotnik, 485 U.S. at 130. Plaintiff adduces no evidence
that Sheriff Myers, the Marion County Circuit Court, or the Marion County Commission either
broadly delegated to MCCC deputies the authority to make final policy or declared it the policy
Page 9 - OPINION AND ORDER
of Marion County to operate MCJ with inadequate mental health services, over capacity, out of
compliance with state and local standards, or with deliberate indifference to inmates'
constitutional rights. In fact, the policy statements cited in plaintiffs brief show Marion County
took steps to avoid those outcomes at MCJ. 2 Thus, plaintiff has failed to show the existence of a
"policy" supporting any one of her theories of Marion County's liability.
Plainti.ffHas Provided Sufficient Evidence IdentifYing a Custom of
Providing Inadequate Mental Health Services or Inadequate Mental
Health Training Which Placed Inmates at an Increased Risk ofSuicide.
If a plaintiff cannot establish the existence of a formal government policy, she may
instead show a "longstanding practice or custom which constitutes the standard operating
procedure of the local governmental entity." Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996).
A plaintiff must produce sufficient evidence showing that the custom or practice is "so
'persistent and widespread' that it constitutes a 'permanent and well settled city policy."' Id.
(quoting Monell, 436 U.S. at 691).
Indeed, "[l]iability for improper custom may not be
predicated on isolated or sporadic incidents; it must be founded upon practices of sufficient
duration, frequency and consistency that the conduct has become a traditional method of carrying
out policy." Id.; see also City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985) ("Proof
of a single incident of unconstitutional activity is not sufficient to impose liability under
Plaintiffs evidence is limited to Hernandez's experience during his tlu·ee days of
incarceration. Plaintiff has the difficult task of establishing the existence of a persistent and
widespread custom based on an extremely narrow set of circumstances. For that reason, plaintiff
For example, it is Marion County's policy that all jail intake employees will "observe
anestees for depressed and/or suicidal behavior, or the possibility of extreme situational stressors
that warrant immediate intervention" and "Health Services Staff will always act on the side of
caution and safety on behalf of the inmate in response to a perceived suicidal situation." Pl. 's
Resp. Defs.' Mot. Summ. J. Ex. A at 1-2.
Page 10- OPINION AND ORDER
has failed to establish that it was the custom of Marion County to operate MCJ either
overcapacity or out of compliance with state and local standards. First, I am unable to identify
any evidence at all concerning the allegations of overpopulation, even during the window of time
when Hernandez was in MCJ custody. Additionally, while plaintiffs expert report shows that
deputies at MCJ may have violated the spirit, if not the letter, of state conections regulations,
both the basis and conclusion of that report address solely the deputies' treatment of Hernandez.
To give rise to Monell liability, a custom must be "of sufficient duration, frequency and
consistency" that it can fairly be said to be the de facto policy of the governmental body.
Trevino, 99 F.3d at 918. Plaintiff has failed to establish a de facto policy with respect to her
charges of overcrowding and noncompliance with state and local standards.
However, there may be merit to plaintiffs allegations that MCJ was operated with
inadequate mental health services or with deliberate indifference to Hernandez's constitutional
right to be free from cruel and unusual punishment. While those two theories are pleaded
separately, they amount to the same charge: that it was the custom of Marion County to provide
poor mental health services to individuals at risk of suicide, in deliberate indifference to
detainees' constitutional rights. As evidence of the inadequacy of MCJ staffs mental health
response, plaintiff cites another expert report suggesting that a competent mental health response
would have included increased interactions or interventions with Hernandez by MCJ staff and
would not have included a prescription for the sleep-inducing anti-anxiety drug Ativan,
generically known as lorazepam. Plaintiff also points to evidence that numerous employees at
MCJ contributed to the inadequate mental health environment: jail nurse Pamela Lash for
placing Hernandez on contact isolation, Deputy Russell Brazeal for failing to place Hernandez
on suicide watch after he admitted a recent suicide attempt, Dr. Vitells for prescribing the anti-
Page 11 - OPINION AND ORDER
anxiety drug lorazepam, Dr. Stewart for approving that prescription and failing to wake and
interact with Hernandez for over 48 hours, and Deputies Sttub and Dunbar for failing to wake
and interact with Hernandez.
While the involvement of multiple county employees bolsters the claim that plaintiffs
treatment was consistent with the County's widespread practice or custom, plaintiffs evidence
at this point is still confined to the treatment of one inmate over four days in 2013. That would
generally be considered an insufficient duration to show a de facto policy. However, one
particular piece of evidence sets this case apart: Dr. Stewart, the mental health specialist at MCJ
responsible for Hernandez's mental health treatment, is also employed as a county-wide expert
on inmate mental health and "presents and/or facilitates at various trainings including [MCJ]
employee in-service and local/regional Crisis Intervention Training." Stewart Deel. if 2. In
addition, Dr. Stewart has been responsible for "developing course materials and instructing
county correctional deputy candidates" on the subject of inmate mental health and suicide
detection and prevention since November of2009. Id if 3. The implications of this are apparent:
the mental health professional responsible for approving Hernandez's placement in isolation;
approving his treatment with psychotropic medication, despite his clear risk factors for
depression and suicide; and leaving him without any human contact for over 48 hours is also
responsible for training and advising deputies and other MCJ employees on how to address
exactly this situation-and has been for nearly a decade.
This evidence could permit a factfinder to infer that the county's treatment of Hernandez
was unlawful under the "failure to train" approach endorsed by the Supreme Court in City of
Canton, Ohio v. Harris, 489 U.S. 378 (1989). The facts of this case are relevantly similar to
Page 12 - OPINION AND ORDER
those in City of Canton. The plaintiff in that case, Geraldine HatTis, was anested by officers of
the City of Canton Police Department and brought to the police station in a patrol car.
When she atTived at the station, Mrs. Hanis was found sitting on the floor of the
wagon. She was asked if she needed medical attention, and responded with an
incoherent remark. After she was brought inside the station for processing, Mrs.
Hanis slumped to the floor on two occasions. Eventually, the police officers left
Mrs. Harris lying on the floor to prevent her from falling again. No medical
attention was ever summoned for Mrs. Ha11"is. After about an hour, Mrs. HatTis
was released from custody, and taken by an ambulance (provided by her family)
to a nearby hospital. There, Mrs. Harris was diagnosed as suffering from several
emotional ailments; she was hospitalized for one week and received subsequent
outpatient treatment for an additional year.
Id. at 381. Mrs. Harris was successful in convincing a jury of her theory of municipal liability by
showing that shift commanders for the City of Canton Police Department had the sole discretion
to detennine whether a detainee required medical attention and that they had been given no
special training to help make such dete1minations. Id. Upon review, the Supreme Court held
that "there are limited circumstances in which an allegation of a 'failure to train' can be the basis
for liability under§ 1983." Id. at 387. When "a concededly valid policy is unconstitutionally
applied by a municipal employee, the [municipality] is liable if the employee has not been
adequately trained and the constitutional wrong has been caused by that failure to train." Id.
Here, while the evidence is somewhat weak, plaintiff has shown that it was within Dr.
Vitells's and Dr. Stewart's sole discretion to determine what therapeutic approach would be most
appropriate for Hernandez's symptoms of anxiety: no other official or employee at MCJ was
required to approve their prescription oflorazepam. See Pl.'s Resp. Defs.' Mot. Summ. J. Ex. A
at 3 ("Policy 3110 - Inmate Suicides ... Health Services or Mental Health Services staff will
assess for appropriateness of medication treatment and refer to medical protocol (Standing
Orders) as needed"). Additionally, plaintiff has introduced evidence that, despite the known
risks and side effects of lorazepam and its contraindication for individuals with histories of
Page 13 - OPINION AND ORDER
depression, suicide, and narcotics abuse, both Drs. Vitells and Stewart detennined that it was an
appropriate prescription for Hernandez. Dr. Stewart, by her own admission, has nearly a decade
of experience training county employees on this very subject; if there was a training program in
place to assist jail medical staff in determining when prescription treatment for anxiety is
superseded by a detainee's risk of suicide, it is reasonable to assume that Dr. Stewati would have
known about it. That she approved the prescription anyway and considered its sedative effects
on Hernandez to be "a good sign" could suggest to a reasonable jury that no adequate training
program existed. Stewati Deel.
ifif 10-11. This evidence is thin, but it is more than the "mere
scintilla" necessary to proceed to trial. Anderson, 477 U.S. at 252; cf United States v. Thomas,
612 F.3d 1107, 1121 (9th Cir. 2010) (holding, in ruling on a proposed jury instruction, that
evidence may qualify as "more than a mere scintilla" even if it is "weak, insufficient, [or]
inconsistent") (internal quotation marks omitted). No more is needed for plaintiff to survive
summary judgment on this claim.
Plaintiff has created a sufficient question of material fact as to whether it was the custom
or practice of Marion County to give MCJ medical staff the sole discretion to prescribe sleepinducing anti-anxiety medication without providing that staff with adequate training on the
potential risks to inmates with demonstrated, recent histories of suicide, depression, and
narcotics addiction. Whether framed as a custom under Monell or a failure to train under City of
Canton, plaintiff has raised genuine issues of material fact as to Marion County's liability for
Hernandez's injuries. Accordingly, summary judgment on that question is improper, and
plaintiffs§ 1983 claim against the County is allowed to proceed to a jury.
Page 14 - OPINION AND ORDER
Marion County, as an Entity, lvfay Have Been Deliberately Indifferent to
the Potential of a Constitutional Violation Caused By Its Custom of
Providing Inadequate 1\!fental Health Services.
To be awarded relief under § 1983 on a lvfonell theory of liability, "[i]t is not sufficient
for a plaintiff to identify a custom or policy, attributable to the municipality, that caused his
A plaintiff must also demonstrate that the custom or policy was adhered to with
'deliberate indifference to the constitutional rights of the jail's inhabitants."' Castro v. Cty. of
L.A., 833 F.3d 1060, 1076 (9th Cir. 2016) (en bane) (quoting City of Canton, 489 U.S. at 392).
To establish deliberate indifference, a plaintiff must show that the municipality was aware that
its custom "would likely result in a constitutional violation" and that the practice "caused the
violation in the sense that the municipality could have prevented the violation with an
appropriate" practice. Jackson v. Barnes, 749 F.3d 755, 763 (9th Cir. 2014) (internal quotations
In dete1mining whether a defendant was aware of the risk of a constitutional violation,
the standard for municipalities is always an objective inquiry "for the practical reason that
government entities, unlike individuals, do not themselves have states of mind[.]" Compare
Castro, 833 F.3d at 1076 with Farmer v. Brennan, 511 U.S. 825, 828 (1994) (stating that the
standard for individuals is subjective: "[A] prison official cannot be found liable under the
Eighth Amendment for denying an inmate humane conditions of confinement unless the official
knows of and disregards an excessive risk to inmate health or safety[.]") (emphases provided).
Under the objective standard of deliberate indifference, Supreme Court precedents have
"permit[ed] liability to be premised on obviousness or constructive notice[.]" Farmer, 511 U.S.
at 841 (citing Canton, 489 U.S. at 396 (O'Connor, J., concurring)). "Obviousness" is most
frequently defined by example. See Canton, 489 U.S. at 390 n.10 (explaining that city
Page 15 - OPINION AND ORDER
policymakers both know that their officers are required to anest fleeing felons and know that
they are armed with firearms; "[t]hus, the need to train officers in the constitutional limitations
on the use of deadly force can be said to be so obvious that failure to do so could properly be
characterized as deliberate indifference to constitutional rights") (internal quotation marks and
citations omitted). Constructive notice can be established by local government regulations and
employee training materials. See Castro, 833 F.3d at 1077.
Plaintiff is capable of meeting the objective standard for municipal deliberate
indifference both through the obviousness and constructive notice methods. First, the expert
report of Anthony Gagliardo states that a prescription of lorazepam is "contraindicated if the
person has a history of depression or suicidal thoughts or behavior[ or] a history of drug or
alcohol addiction[.]" Pl.'s Expert Witness Disclosure Ex.Cat 1 (emphasis omitted). Construing
all factual inferences in plaintiffs favor, a factfinder could conclude that the county medical staff
prescribing a given medication is aware of that medication's recommended uses as well as its
risks and side effects. Therefore, a jury could conclude that the risk that adhering to a custom of
prescribing lorazepam to treat anxiety to an inmate with a history of suicide and heroin addiction
might result in a violation of that inmate's constitutional rights was "so obvious" as to constitute
deliberate indifference by defendants.
Additionally, plaintiff raises evidence of official policies and training materials showing
that Marion County policymakers could have had constructive notice that adhering to the custom
of allowing MCJ staff to prescribe lorazepam to high-risk inmates and allowing them to sleep in
isolation for days at a time carried a risk of a constitutional violation. First, the MCSO policy on
inmate suicides requires deputies to "observe arrestees for depressed and/or suicidal behavior, or
the possibility of extreme situational stressors that warrant immediate intervention." Pl.'s Resp.
Page 16 - OPINION AND ORDER
Defs.' Mot. Summ. J. Ex. A at 1 (emphasis provided). County training materials describe the
kinds of situational stressors that may be indications of increased risk of suicidal behavior,
including: recent use of drugs, drug withdrawal, recent break-up of a relationship, depression,
extreme anxiety, extreme sadness and crying, and excessive sleeping. Id Ex. B at 4-7. The
training materials end with an explanation of "Jail Suicide Litigation" and "Legal Standards of
Care" describing the legal and constitutional bases of the foregoing requirements. A reasonable
factfinder could conclude that these official materials are sufficient evidence that defendants had
constructive notice that the failure to adequately identify and address an inmate's risk factorsincluding the drug withdrawal, crying, and excessive sleeping in evidence here--could lead to a
violation of his constitutional rights.
Plaintiff has also provided sufficient evidence from which a rational jury could find that,
had an adequate mental health response been in place, Hernandez would not have suffered a
Plaintiffs expert report explains that a prescription of lorazepam is
especially risky for patients with a history of suicide, depression, or narcotics abuse. If a jury
credits that report, it could conclude that, had Marion County not adhered to the custom of
allowing MCJ medical staff carte blanche to prescribe anti-anxiety medication regardless of an
inmate's medical history or instead provided adequate training about the risks of such medication
and the risks of permitting 48 hours to pass without contact with the inmate, Hernandez would
not have been placed at an increased risk of harm. For that reason, and those explained above,
summary judgment on this claim is denied.
Defendants' Motion for Summary Judgment on Plaintiff's§ 1983 Claims Against
Sergeant Henckel and Does 1-3 is Granted
Plaintiffs theory of liability for Sergeant Henckel and three unnamed co!Tections officers
is the same deliberate indifference theory explained above. However, plaintiffs claim against
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these individual officers is deficient in many respects. For that reason, defendants' Motion for
Summary Judgment as to this claim is granted.
The standard for deliberate indifference against an individual-as opposed to a
municipality-is a subjective one. See Farmer, 511 U.S. at 837. Accordingly,
a prison official cannot be found liable [for deliberate indifference] unless the
official knows of and disregards an excessive risk to inmate health or safety; the
official must both be aware of facts from which the inference could be drawn that
a substantial risk of serious harm exists, and he must also draw the inference.
Id. Plaintiff includes no allegations or supporting evidence showing that Henckel had actual
knowledge of an excessive risk to Hernandez's health and then actually disregarded that risk.
Plaintiffs entire theory of liability as to Henckel is based on a theory of consttuctive notice-a
theory that is inconsistent with the actual notice standard for individuals. See Pl.' s Resp. Defs.'
Mot. Summ. J. 8 (''Notice to an agent, such as Dr. Stewait, who by policy must repo1t to
[Sergeant] Henckel, constitutes notice to [Sergeant] Henckel."). Thus, plaintiffs claim against
Henckel fails to create an issue of material fact as to Henckel' s knowledge of-and therefore his
liability for-Hernandez. For that reason, defendants' motion as to Henckel and the unnamed
corrections officers is granted.3
Defendants' Motion for Summmy Judgment on Plaintiff's OTCA Claim is Denied
Plaintiffs remaining claim is against all defendants for negligence under the Oregon To1t
Claims Act. Because this final claim arises under the Oregon common law of negligence, I look
to Oregon state law in determining whether plaintiff has created sufficient issues of material fact
Qualified immunity is an affirmative defense which can only be asserted by individuals.
See Camarillo v. McCarthy, 998 F.2d 638, 639 (9th Cir. 1993). Because none of plaintiffs
constitutional claims against individual officers is capable of surviving summary judgment, there
is no further need to address qualified immunity. Saucier v. Katz, 533 U.S. 194, 201 (2001) ("If
no constitutional right would have been violated were the allegations established, there is no
necessity for fu1ther inquiries concerning qualified immunity."), overruled on other grounds by
Pearson v. Callahan, 555 U.S. 223, 236 (2009).
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to survive summary judgment. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 76 (1938) (when
adjudicating matters of state law, "the law to be applied in any case is the law of the state ...
whether the law of the state shall be declared by its Legislature in a statute or by its highest court
in a decision[.]").
In Oregon, to succeed on a claim of negligence, a complaint
must allege facts from which a factfinder could determine (1) that defendant's
conduct caused a foreseeable risk of haim[;] (2) that the risk is to an interest of a
kind that the law protects against negligent invasion[;] (3) that defendant's
conduct was unreasonable in light of the risk[;] (4) that the conduct was a cause of
plaintiffs harm[;] and (5) that plaintiff was within the class of persons[,] and
plaintiffs injury was within the general type of potential incidents and injuries[,]
that made defendant's conduct negligent.
Horton v. Or. Health & Sci. Univ., 373 P.3d 1158, 1161 (Or. Ct. App. 2016) (quoting Solberg v.
Johnson, 760 P.2d 867, 870 (Or. 1988)).
As ably summarized by defendants, plaintiffs general theory of negligence liability is
that the standard for deliberate indifference is higher than the standard for negligence, therefore a
defendant who has acted with deliberate indifference has ipso facto acted with negligence. It is
true that if an individual acts with deliberate indifference, she necessarily acts unreasonably. See
Castro, 833 F.3d at 1071 n.4 ("[L]iability [for deliberate indifference] will only attach where the
defendant's conduct is more egregious than mere negligence.").
However, because she is
seeking relief under state tort law rather than federal constitutional law, plaintiff must point to
sufficient evidence in the record to satisfy the elements of the common law tort of negligence to
survive defendants' motion.
A rational juror could conclude that prescribing sleep-inducing anti-anxiety medication to
an inmate with a high risk of suicide and allowing him to remain in isolation for up to two full
days created a foreseeable risk of harm. "Foreseeability is a prediction of the risk that an act or
Page 19 - OPINION AND ORDER
omission will result in a particular kind ofhaim[.]" Towe v. Sacagawea, Inc., 347 P.3d 766, 775
(Or. Ct. App. 2015). As explained in detail above, a jury could find that several Marion County
employees were constructively aware-through the adoption of formal policies and training
manuals-of the risk to Hernandez's health and life caused by inadequate mental health services,
including leaving Hernandez alone for long periods of time. See patt I.A.3, supra; PI.'s Resp.
Defs.' Mot. Summ. J. Ex. B at 1, 3 (PowerPoint presentation on jail suicides stating that
"[h]istory of one or more suicide attempts indicates a person is a higher risk"; factors influencing
suicidal behavior include "[i]solation" and the "[d]ehumanizing aspects of being incarcerated";
and signs and symptoms of suicidal behavior include "[e]xcessive sleeping"). In addition, as
explained by plaintiffs expet1 Anthony Gagliardo, a prescription of lorazepam "is
contraindicated if the person has a history of depression or suicidal thoughts or behavior[ or] a
history of drug or alcohol addiction." PL' s Expert Witness Disclosure Ex. C at 1. Based on that
evidence, a factfinder could detetmine that a natural consequence of prescribing lorazepam to an
inmate with plaintiffs risk factors and then pennitting that inmate to go two full days without
any human contact is an increase of that inmate's risk of suicide. Accordingly, there is sufficient
evidence for a finding of foreseeability, and plaintiff has satisfied the first essential element of
her negligence claim.
The risk created by defendants' conduct was to "an interest of a kind that the law protects
against negligent invasion" because it created a risk to Hernandez's life and health. Horton, 373
P.3d at 1161. Moreover, a jury might find that defendants' conduct was especially unreasonable
in light of that risk because the potential hatm to Hernandez was so great. It is well-established
that defendants have a responsibility to ensure that inmates in their care and custody do not come
to additional hatm as a result of their incarceration-that is reinforced by defendants' own
Page 20 - OPINION AND ORDER
policies and training materials. See Pl.'s Resp. Defs.' Mot. Summ. J. Ex. A at 2 ("Health
Services Staff will always act on the side of caution and safety on behalf of the inmate in
response to a perceived suicidal situation.") (emphasis provided). Thus, jurors could conclude
that defendants took an especially risky approach to Hernandez's mental health care: prescribing
him medication contraindicated by his medical history and allowing him to sleep with no contact
from MCJ staff for over 48 hours.
Whether or not defendants' conduct was a "cause in fact" of Hernandez's injury is not
clear, but at the summaiy judgment stage, I draw all factual inferences in plaintiffs favor and
determine only whether defendants are entitled to relief as a matter of law. Anderson, 477 U.S.
"'Cause in fact' has a well-defined legal meaning in Oregon: 'it generally requires
evidence of a reasonable probability that, but for the defendant's negligence, the plaintiff would
not have been ha1med."' Horton, 373 P.3d at 1163 (quoting Joshi v. Providence Health Sys.,
I 08 P .3d 1195, 1197 (Or. Ct. App. 2005)). When "the 'but for' allegation adequately link[ s] the
defendants' conduct to the [plaintiffs] harm[,] 'nothing more [is] necessary' ... 'to sufficiently
Plaintiff avers that but for defendants' inadequate mental health
treatment, Hernandez would not have been able to attempt suicide. There is sufficient evidence
in the record-discussed in detail immediately above and throughout this opinion-with which a
reasonable factfinder could support that charge. Accordingly, sufficient issues of material fact
remain as to whether defendants' conduct was a "cause in fact" of Hernandez's injuries, and
summary judgment on that question is improper.
Finally, to succeed on her claim of negligence, plaintiff must show that Hernandez was
the kind of person, and his injury the kind of injury, that could foreseeably by harmed by
defendants' risky behavior. In other cases, this can be a complex inquiry; here it is not. As
Page 21 - OPINION AND ORDER
explained in the above analysis of the first foreseeability element, a reasonable factfinder could
detennine that the potential for harm resulting from defendants' conduct was foreseeable because
defendants have adopted extensive policies and training to keep that very harm from happening.
Those same materials explain exactly who is at risk (inmates) and exactly what they are at risk of
(suicide). With that evidence in the record, a juror exercising her prudent judgment may find
that defendants knew or should have known that engaging in the risky conduct of providing
inadequate mental health services could result in an attempted suicide by an inmate. Thus, the
final "proximate causation" element of the negligence standard may be satisfied by evidence
already in the record. Accordingly, summary judgment on plaintiffs negligence claim would
not be proper, and defendants' motion to that end must be denied.
Defendants' Motion for Summary Judgment (doc. 42) is GRANTED IN PART and
DENIED IN PART as set forth in greater detail herein. Defendants Marion County Sheriffs
Office, Marion County Jail, Sheriff Jason Myers, and Commander Sheila Lorance are dismissed
with prejudice as redundant.
IT IS SO ORDERED.
United States District Judge
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