Frank v. Cascade Healthcare Community, Inc. et al

Filing 172

ORDER: Denying Plaintiff's Motion for Partial Summary Judgment 58 ; Granting Palmer's Motion for Summary Judgment 75 ; Denying Plaintiff's Motion for Partial Summary Judgment 120 ; Granting COEP's Motion for Summary J udgment 125 ; Granting the City's Motion for Summary Judgment 128 ; Granting Palmer's Motion for Summary Judgment 132 ; Granting SCMC's and Timms' Motion for Summary Judgment 135 ; Granting Ryan's, Violet's, Huffman 's, Lancaster's, Mcbride's, Beutler's and Nelson's Motion for Summary Judgment 168 . The parties' requests for oral argument are denied as unnecessary. Accordingly, plaintiff's claims against COEP, Palmer, SCMC, T imms, Ryan, Violet, Huffman, Lancaster, Mcbride, Beutler, Nelson, the Bend Police Department, and the City are dismissed. The only remaining claims are those asserted against Namanny and Macdonnell. Signed on 3/6/2013 by Chief Judge Ann L. Aiken. (lg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MINNY FRANK,

Case No.

6:11-cv-06402-AA
OPINION AND ORDER

Plaintiff,

v.
CASCADE HEALTHCARE COMMUNITY,
INC. dba ST. CHARLES MEDICAL
CENTER; EDWARD PALMER, MD;
REBECCA TIMMS; SCOTT NAMANNY;
THE CITY OF BEND; BEND POLICE
DEPARTMENT; and CENTRAL OREGON
EMERGENCY PHYSICIANS, LLC;
Defendants.
Minny Frank
1803 Buttermilk Lane
Arcata, California 95521
Pro se plaintiff
Robert E. Franz, Jr.
Law Office of Robert E. Franz, Jr.
P.O. Box 62
Springfield, Oregon 97477
Attorney for defendants the City of Bend, the Bend Police
Department, Scott Namanny, and Ian Macdonnell
Page 1 - OPINION AND ORDER

Steven P. Jones
Kirstin L. Abel
Keating Jones Hughes PC
One S.W. Columbia, Suite 800
Portland, Oregon 97258
Attorneys for defendants Cascade Healthcare Community, Inc.
d. b. a. St. Charles Medical Center, Rebecca Timms, Nichole
Ryan, Patricia Violet, Christine Huffman, Penni Lancaster,
Randal Mcbride, Jonathan Beutler, and Justin Nelson
Gordon L. Welborn
Erika Lyn Wilson
Hart Wagner, LLP
439 S.W. Umatilla Avenue
Redmond, Oregon 97756
Karen M. O'Kasey
Hart Wagner, LLP
1000 S.W. Broadway, 20th Floor
Portland, Oregon 97205
Attorneys for defendant Edward Palmer, M.D. and Central Oregon
Emergency Physicians, LLC
AIKEN, Chief Judge:
Defendants Edward Palmer, Central Oregon Emergency Physicians,
LLC

( "COEP") ,

("City"),

Bend

Police

Department, 1

Cascade Healthcare Community,

Medical Center
Violet,

the

("SCMC"),

Christine

Jonathan Beutler,

Inc.

Rebecca Timms,

Huffman,

Penni

the

d.b.a.

Nichole

Lancaster,

and Justin Nelson move

for

City
St.

of

Bend

Charles

Ryan,

Patricia

Randal

Mcbride,

summary judgment,

pursuant to Fed. R. Civ. R. 56, on all of plaintiff Minny Frank's

1

The Bend Police Department "is not a separate entity from
the city itself and thus not amendable to suit." Keller v. City
of Portland, 1998 WL 1060222, *3-4 (D.Or. Nov. 13, 1998). As
such, the Bend Police Department is dismissed as a defendant from
this action.
Due to plaintiff's prose status, however, the
Court will construe any allegation against the Bend Police
Department as though it was asserted against the City.
Page 2 - OPINION AND ORDER

claims. 2

Plaintiff also filed two motions

for partial summary

judgment against Palmer, Timms, COEP, and SCMC.

For the reasons

set forth below, defendants' motions are granted and plaintiff's
motions are denied.

As a result, the claims remaining are those

asserted against defendants Scott Namanny and Ian Macdonnell.
BACKGROUND

On January 13,

2010,

after mixing three to four alcoholic

beverages with at least a dozen prescription anti-anxiety pills,
plaintiff became extremely intoxicated and repeatedly threatened
her life in the presence of her husband.
mental

illness

and

has

previously

been

Plaintiff suffers from
hospitalized

for

her

psychological issues; knowing this and fearing for her well-being,
plaintiff's husband called 911.

Officers Namanny,

Macdonnell were dispatched to plaintiff's residence.

Paschke,

and

When they

arrived, plaintiff was being restrained by her husband in a room
with

two

guns,

one

of

which

was

loaded.

Plaintiff

was

uncooperative with the police and, as a result, they forcibly handcuffed and Mirandized her.
Thereafter, the police interviewed plaintiff, during which she
admitted that she had held a gun to her stomach intending to harm
herself; plaintiff later indicated that she was not sure why she

2

Defendants filed several separate motions for summary
judgment; because their arguments significantly overlap, except
where otherwise indicated, the Court will address defendants'
respective motions together.
Page 3 - OPINION AND ORDER

threatened self-harm.

Namanny explained to plaintiff that he felt

it would be in her best interest to speak with a mental health
specialist at SCMC.

Plaintiff expressed a willingness to go to the

hospital.

As such, Namanny and Macdonnell brought plaintiff to the

emergency

department

("ED")

of

SCMC,

a

private,

non-profit

hospital, pursuant to Or. Rev. Stat. § 426.228.
Upon admittance to the ED, and while waiting to be evaluated
in a private room, plaintiff remained calm and compliant; however,
when plaintiff was contacted by Timms, a licensed clinical social
worker,

she became combative and started yelling loudly,

using

vulgar profanity, because her handcuffs had not yet been removed.
Plaintiff's uncooperative and aggressive behavior continued despite
SCMC

employees'

calming

efforts.

Eventually,

plaintiff

was

subdued, after which her handcuffs were removed, and was examined
by Palmer and interviewed by Timms.

Palmer, an ED physician,

is

not an employee of SCMC; rather, he is a member of COEP, a private
company that contracts with SCMC to provide emergency services.
During her interview with Timms, plaintiff reported that she
held a loaded gun to her head earlier that evening and wanted to
kill herself.

Plaintiff also reported that she drank four glasses

of vodka and often harms herself via an overdose of prescription
medication.

Based on this information, and in conferral with Timms

and Dr. Lakovics, the admitting physician, Palmer determined that
plaintiff

was

a

potential

Page 4 - OPINION AND ORDER

harm

to

herself

and/or

others

and

initiated

an

emergency

emergency

services

psychiatric

("PES")

unit.

hold

in

SCMC' s

psychiatric

was

subsequently

Plaintiff

informed that she was going to be held overnight in the PES unit
and, as a result, needed to change into scrubs pursuant to hospital
policy.

Upon receiving this information,

plaintiff again began

yelling and became combative; she demanded to speak with the oncall ED doctor who evaluated her, refusing to change into scrubs or
voluntarily admit herself to the PES unit.

Palmer returned and

informed plaintiff that it was his and his staffs' opinion that she
needed further treatment.

Plaintiff then erupted at Palmer and

began personally threatening him, at which point Palmer ordered the
administration of medication to plaintiff in order to effectuate
her transition into the PES unit.
Plaintiff continued to refuse to change into hospital scrubs,
even after being informed of SCMC's policy.

As such, plaintiff was

warned that she would be forcibly held down and changed into scrubs
if she failed to comply; plaintiff still did not cooperate and,
while screaming, demanded to see a patient advocate and a written
copy of the hospital's policies.

Plaintiff was then physically

restrained by Namanny, Macdonnell, and SCMC staff while a female
nursing assistant performed a skin-check and replaced plaintiff's
existing clothes with hospital scrubs.
plaintiff

remained

volatile,

threatening those around her.

Page 5 - OPINION AND ORDER

yelling

Throughout this process,
loudly

and

personally

After plaintiff was changed into scrubs, she was transported
to the PES unit.

During her admission to that unit, and pursuant

to Palmer's earlier order, two male SCMC nurses injected plaintiff
with a

combination of Ativan,

Haldol,

and Benadryl,

which were

employed for their anti-anxiety and sedative properties.

Plaintiff

was then medically monitored via video for the next several hours
while she slept.

Plaintiff remained in the PES unit until the

following morning, January 14, 2010, when she was discharged into
her husband's care after a psychiatric evaluation revealed that she
was no longer a threat to herself or others.
On December
Court.

9,

Since the

2011,

plaintiff filed

commencement of this

a

complaint

lawsuit,

in this

plaintiff has

engaged in a campaign of harassment against defendants and their
counsel, including but not limited to personal threats via email
and online videos that accuse defendants of racism and bigotry.

On

April 16, 2012, plaintiff moved to file an amended complaint; on
May 16, 2012, plaintiff moved to file a second amended complaint.
On

June

26,

2012,

Accordingly,
complaint.
Court,

Court
2012,

granted

plaintiff's

motions.

plaintiff filed a second amended

On September 21, 2012, after receiving leave from the

(1)

intentional
"RIED,"

on July 12,

plaintiff

alleging:

this

and

filed

several

third

negligence

infliction
"liED,"

her

of

and

emotional

respectively)

Page 6 - OPINION AND ORDER

amended

complaint

negligent,
distress

under

reckless,

claims

Oregon

("TAC"),

law;

and

("NIED,"
and

(2)

deprivations

of

her

Fourth

violation of 42 U.S.C.

§

and

Fourteenth Amendment

rights

in

1983.
STANDARD

Summary judgment is appropriate if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show "that there is no genuine dispute as
to any material fact and the [moving party] is entitled to judgment
as a matter of law."

Fed. R. Civ. P. 56(a).

Substantive law on an

issue determines the materiality of a fact.

T.W.

Elec.

Servs.,

Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.
1987).

Whether the evidence is such that a reasonable jury could

return

a

verdict

for

the

authenticity of a dispute.

u.s.

242, 248

nonmoving

party

determines

Anderson v. Liberty Lobby,

Inc.,

the
477

(1986).

The moving party has the burden of establishing the absence of
a genuine issue of material fact.
U.S. 317, 323 (1986).

Celotex Corp. v. Catrett,

477

If the moving party shows the absence of a

genuine issue of material fact, the nonmoving party must go beyond
the pleadings and identify facts which show a genuine issue for
trial.

Id. at 324.

Special rules of construction apply when evaluating a summary
judgment motion:

(1) all reasonable doubts as to the existence of

genuine issues of material fact
moving

party;

and

(2)

all

Page 7 - OPINION AND ORDER

should be resolved against the

inferences

to

be

drawn

from

the

underlying facts must be viewed in the light most favorable to the
nonmoving party.

T.W. Elec., 809 F.2d at 630.
DISCUSSION

This dispute centers on whether defendants' physical restraint
and administration

of

certain medications

was

negligent

or

in

violation of plaintiff's constitutional rights.
I.

SCMC's Policy Terms
Central to plaintiff's state and federal claims are several of

SCMC~s

policies and procedures.

The first SCMC policy at issue,

entitled "Mental Health-Protocol for Involuntary Admission of a
Mentally Ill Patient," mandates that the "[p]atient will always be
escorted to the Mental Health area by two staff members or a staff
member and Police Officer."
Mot. Partial Summ. J.

Supplemental Ex.

F to Pl.'s Second

("Disrobing Policy") at 2.

Further, " [a] ll

personal belongings are to be removed in [the ED and the patient
must be

checked]

for medications

and sharp objects."

patient is also "to be placed in hospital clothes in
Id.

Id.

The

[the ED]."

If a patient is determined to be out of control or a threat to

herself or others, the Disrobing Policy requires the "nurse .
to take immediate protective action [including asking] the Police
Officer to assist as long as necessary
medication,
W10027."

or

restraints,

as

per

[and using]

'Restraint

locked door,

and

Seclusion'

Id.

The "Restraint and Seclusion" policy, in turn, authorizes the

Page 8 - OPINION AND ORDER

"direct application of physical force to an individual, without the
individual's permission, to restrict his or her freedom of movement
and

to

protect

Supplemental

Ex.

him

or

N

to

her

from

Pl.'s

("Restraint Policy") at 3.

injuring

Second

Mot.

self

or

Partial

others."
Summ.

J.

As an initial matter, the "the use of

handcuffs or other restrictive devices applied by law enforcement
officials who are not employed by or contracted by the hospital"
are not governed by this policy.

Id. at 1.

Rather, the purpose of

the Restraint Policy is to "protect the patient's health and safety
and preserve

his

or her dignity,

rights,

and well-being,"

and

"utilize the least-restrictive means of containing patients who
pose

an

immediate

Accordingly,

the

danger

patient's

to

themselves

or

past medical history,

others."

Id.

including any

history of sexual or physical abuse that would place the patient at
greater

psychological

risk

during

restraint

or

seclusion,

are

considered when determining whether restraint is appropriate.

Id.

at 4.
The use of force is nonetheless warranted under the Restraint
Policy where an "emergency" exists
practitioner

[or]

and a

"licensed independent

qualified registered nurse" initiates it after

making an initial assessment.

Id. at 5.

For the purposes of this

policy, "emergency" is defined as "an instance in which there is an
imminent
others,

risk

of

an

individual

including staff .

Page 9 - OPINION AND ORDER

harming

himself

or

herself

or

. when nonphysical interventions are

unrealistic
response."

and

safety

issues

require

an

immediate

physical

Id. at 4 (ellipses in original).

A separate policy,

entitled "Psychiatric Emergency Services

Search Protocols," specifies that
all patients, without exception, will have a person
search and belongings search upon admission to the
Facility [and] [a] 11 patients will be searched at the
time of admission to any PES bed, regardless of inpatient
or outpatient status. For patients brought in by ED staff
and/or police, the ED staff and/or police will be
expected to remain until the search is complete.
Supplemental Ex. H to Pl. ' s Second Mot. Partial Summ. J.
Policy")

at 1.

("Search

The primary purpose of this policy is to "ensure

the safety of patients, physicians,

facility staff, and visitors

from dangerous articles, unauthorized medications, and other items
which

could

prescribes a

cause

The

harm."

Search

Policy

expressly

course of conduct where the patient refuses to be

searched: "staff will explain the need for safety again and extra
staff will be contacted if necessary" in order to effectuate the
search.

Id.

"Patients will be searched in a room which provides

adequate

privacy

and

personal

space

patient."

Id.

at

2.

During

two

( 2)

the

search,

the

patient

required to disrobe and then is dressed in hospital scrubs.
~'

id.

staff

. will be the same sex as

members," which "[w]henever possible,
the

by

is

See,

(describing the disrobing procedures).

Finally, SCMC has a procedure, entitled "Behavioral Control,
Dr. Strong Code," which exists to "ensure the safety of patients,

Page 10 - OPINION AND ORDER

visitors, and staff, and to obtain immediate assistance within the
hospital in a behavioral emergency."
Second Mot. Partial Summ. J.

Supplemental Ex. L to Pl.'s

("Hold Procedure") at 1.

Pursuant to

this procedure, SCMC staff are to receive "four hours of seclusion
and restraint training annually"; to maintain these skills,

SCMC

employees are also required to "participate in an actual seclusion
or restraint event which is debriefed,
quarterly."

A hold

is

or an unannounced drill

authorized

"[w] hen

a

patient

is

imminently dangerous to self or others and less restrictive, nonphysical

interventions

have

not

been

effective

or

are

highly

unlikely to be effective given the nature of the crisis."

Id.

Factors

the

that

are

considered

when

patient's "level of agitation,

placing

a

mental status,

hold

include

direct or implied

verbal threats toward self or others, other interventions tried or
not tried, paranoia, intoxication level, etc."

Id. at 2.

The Hold

Procedure authorizes the use of restraint when medically necessary.
Further,

where restraint is medically necessary,

specifies
required";

that

"at

however,

least
"[i]f

five,

able-bodied,

there

are

not

this procedure

trained
five,

staff

are

able-bodied,

appropriately trained staff available, physical intervention is not
recommended. Police assistance should be considered."
After

the

Hold

Procedure

is

commenced,

"[a]ll

Id. at 2-4.

dangerous

or

potentially dangerous items are to be removed from the patient."

Page 11 - OPINION AND ORDER

II.

State Law Claims
Plaintiff's state law claims are premised on Or. Rev. Stat.

426.005 through 426.390 and Oregon Administrative Rules

§§

("OAR")

309-033-0200 through 309-033-0800, as well as SCMC's policies and
procedures.
A.

Negligence Claim Against Palmer and Timms

Plaintiff asserts
forcibly

that

malpractice

by

medicating

her,

especially

previously

been

a

Palmer and Timms

changing

victim

her

because
of

sexual

committed medical

into

hospital

they

knew

and

scrubs

that

physical

she

and
had

assaults.

Specifically, plaintiff argues that "Palmer owed her a statutory
duty to personally oversee her care and treatment [and his] failure
to obtain Plaintiff's informed consent" constituted negligence and
negligence per se. 4

Pl.'s Opp'n to Palmer's Mot. Summ. J. 3-4; see

3

SCMC also has a policy, entitled "Patients in Custody,"
that provides guidance to corrections officers.
See Supplemental
Ex. to Pl.'s Resp. in Opp'n to City's Mot. Summ. J.
The Court
finds it unnecessary to outline the specific terms of this policy
because it is largely duplicative and relates primarily to
Namanny's and Macdonnell's conduct, which is not at issue in
regard to the present motions.
4

It is unclear whether plaintiff actually intends to assert
a negligence per se or statutory tort claim based on defendants'
alleged failure to follow the statutes, rules, and policies at
issue; however, because "[t]he elements required to state a claim
for both are the same," the Court will address them together.
McAlpine v. Multnomah Cnty., 131 Or.App. 136, 144, 883 P.2d 869
(1994), rev. denied, 320 Or. 507, 888 P.2d 568 (1995); see also
Cain v. Bovis Lend Lease, Inc., 817 F.Supp.2d 1251, 1255-56
(D.Or. 2011) (discussing the difference between negligence per se
Page 12 - OPINION AND ORDER

also Pl.'s Mem. in Supp. of Second Mot. Partial Summ. J. 17; TAC
45-57.

~~

In addition, plaintiff contends that Palmer was negligent

because he failed to comply with the terms of COEP's contract with
SCMC,

which requires

ED physicians to "[p] rovide

the necessary

Services in a manner so that the medical needs of each patient are
met

consistent

with

Hospital

regulations and policies."

and medical

staff

bylaws,

rules,

Pl.'s Reply to First Mot. Partial Summ.

J. Ex. D.
i.
To

Common Law Negligence Claim5

prevail

on
a

a

medical

duty

that

negligence

claim,

runs

the

establish

"(1)

plaintiff;

(2) a breach of that duty;

from
(3)

plaintiff must

defendant

to

the

a resulting harm to the

plaintiff measurable in damages; and (4) causation, i.e., a causal
link between the breach of duty and the harm."
Cnty., 2009 WL 5149265, *5 (D.Or. Dec. 22, 2009)

Swanson v.

Coos

(citing Stevens v.

and statutory tort claims).
5

"[A] state common-law claim of negligence may be
maintained separately from a § 1983 claim only when [it] is based
on facts that are different from the facts on which the § 1983
claims are based." Barringer v. Clackamas Cnty., 2010 WL
5349206, *9 (D.Or. Nov. 22), adopted by 2010 WL 5342965 (D.Or.
Dec. 21, 2010) (citations and internal quotations omitted).
Here, a review of plaintiff's complaint and briefs reveals that
her negligence claims against Palmer, Timms, and SCMC are
premised on the same facts as her claims pursuant to 42 U.S.C. §
1983.
For this reason, plaintiff's negligence claims fail.
See,
~' id.
Nevertheless, in light of plaintiff's prose status,
and in order to provide the most complete disposition of her
claims, the Court will address the substantive merits of her
common-law negligence claims.
Page 13 - OPINION AND ORDER

Bispham, 316 Or. 221, 227 851 P.2d 556

(1993)).

"[A]s a general

rule, a plaintiff in a medical malpractice case must offer expert
testimony that,

to a reasonable medical probability, the alleged

breach of the standard of care caused the plaintiff's injuries."
Chouinard v.

Health Ventures,

179 Or.App.

(2002); see also Gulley v. Cook,
29, 1999)

507,

512,

39 P.3d 951

1999 WL 805147, *4

(D.Or. Sept.

(citing Getchell v. Mansfield, 260 Or. 174, 179, 489 P.2d

953 (1971)).

Nonetheless, such testimony is not required where the

jury is capable of deciding what constitutes reasonable conduct or
what caused the injury without the opinion of an expert.

See

Getchell, 260 Or. at 179-81; Chouinard, 179 Or.App. at 512-13.
Because this

case involves a

unique set of circumstances,

including but not limited to complicated medical issues surrounding
the treatment of an intoxicated,

suicidal, and volatile mentally

ill person with a history of abuse, expert testimony is necessary.
In such instances, "a defendant doctor may offer his own medical
expert opinion in an affidavit as evidence to support a summary
judgment motion on the issue of the applicable standard of care."
Swanson, 2009 WL 5149265 at *5 (citing O'Gara v. Ptacek, 96 Or.App.
39,

43,

771 P.2d 642

(1989);

and Tiedemann v.

Radiation Therapy

Consultants, 299 Or. 238, 701 P.2d 440 (1985)).
Here,

defendants provided a plethora of opinion evidence

6

6

It is undisputed that those authoring defendants' opinion
evidence are all experts within the meaning of Fed. R. Evid. 702.
Plaintiff does, however, challenge the admissibility of this
evidence on a number of other grounds.
See, e.g., Pl.'s Opp'n to
Page 14 - OPINION AND ORDER

regarding the relevant standard of care and the reasonableness of
Timms'

conduct,

Palmer's conduct,

and SCMC's policies.

Notably,

Palmer provided an affidavit regarding plaintiff's treatment while
in the ED.

Palmer reported that he "personally examined" plaintiff

and provided treatment in consultation with Timms, who provided a
more

thorough

evaluation.

Palmer Aff.

<][

He

4.

stated that,

"[d]uring the time period that Ms. Frank was in the ED, she became
agitated,

combative,

out

of

control,

uncooperative

and

threatening"; as a result, Palmer found it medically necessary to
"order . . . the administration of medications (Haldol, Ativan, and
Benadryl) to Ms. Frank to prevent harm to herself and the hospital
staff."

Id. at<][ 5.

Palmer opined that his choice and methods for

administering the medications at issue,

as well as his

initial

decision to place plaintiff on an emergency psychiatric hold, were
reasonable under the circumstances and within the standard of care.
Id. at <][<][ 4-7.

Further, Palmer clarified that he

did not enter an order for Ms. Frank to be changed out of
her street clothes and into hospital scrubs. Rather, the
hospital has its own policies regarding clothing for
patients who are being admitted to the [PES] Unit, which
required patients to be changed into hospital scrubs for
safety reasons.
Id.

at

<][

7.

Palmer

concluded

that

the

care

he

provided

to

plaintiff "met or exceeded" the standard of care in the relevant
community for an emergency room physician acting under the same or

SCMC's Mot. Summ. J. 5-6.
Regardless, the Court finds that these
affidavits and declarations fall within the purview of Fed. R.
Civ. P. 56(c) (4) and are therefore admissible.
Page 15 - OPINION AND ORDER

similar circumstances and that "there was no negligent conduct on
[his]

part which caused or produced any harm or damage to Ms.

Frank."

Id. at <J[<J[ 6-8.

Timms provided testimony regarding SCMC's policies for PES
unit admittees:
[SCMC] has a policy that patients who will be admitted to
the [PES] Unit change into hospital scrubs and I am
familiar with that policy. While the patient is changing
into scrubs, or being changed, healthcare providers look
for weapons and perform a skin check.
The policy is in
place for several reasons: first, it ensures patients do
not have weapons that could be used to harm themselves or
others; second, it ensures that patients do not have a
clothing item that can be used to harm themselves or
others; and third, at allows the providers to check the
patients skin to look for any signs of injury.
Timms Decl.

<_![<_![

7-8; see also Beutler Decl. <J[<J! 4-5; Powers Decl. <J[<J!

3-4.
In addition, Timms discussed her interactions with plaintiff
on the night in question.
was

in the

[ED]

Timms reported that, "[w]hile Ms. Frank

she was agitated,

combative,

uncooperative and

threatening to hospital staff . . . and was generally incapable of
controlling her actions."
that,

Timms Decl.

pursuant to Palmer's request,

<J!

4.

Timms also stated

she performed a psychosocial

assessment of plaintiff, during which "Ms. Frank informed me that
she had a loaded gun pointed at her head that night wanting to kill
herself [and] that she will often harm herself via an overdose, and
that she had drank four glasses of vodka."

Id. at <J!<J[ 3,

6.

She

also spoke with the police officers who brought plaintiff to the
ED,

who "advised

[Timms]

that Ms.

Page 16 - OPINION AND ORDER

Frank had taken a handful of

clonazepam,
throat."

held a gun to her stomach,

Id. at en 6.

degree

standard of care."

knife to her

Timms concluded that all of the services she

provided to plaintiff,
reasonable

and held a

of

as well as SCMC' s
certainty,

policies,

consistent

with

were,

the

"to a

community

Id. at enen 9-11; see also Powers Decl. enen 6-8;

Ryan Decl. enen 9-10.
Ryan, who was working as the "Change Nurse" in the ED on the
night in question, provided further testimony regarding the events
surrounding plaintiff's forced change into hospital scrubs.
Decl.

en

3.

Ryan reiterated Timms'

Ryan

statement that plaintiff was

agitated, combative, uncooperative, threatening to hospital staff,
and

generally

out

of

control

while

in

the

ED.

Id.

at

en

4.

Moreover, Ryan stated that plaintiff repeatedly refused to change
into hospital scrubs, even after being informed of SCMC's policy;
accordingly, plaintiff "was advised that she would be assisted in
changing into the scrubs if she would not agree to do so herself."
Id. at enen 6-7.

Ryan testified that plaintiff "continued to refuse

to change" and "threw the scrubs at staff."

Id.

As a result, and

[i]n order to protect Ms. Frank from harming herself or
others, several people, including myself, one male [SCMC]
nurse employee, and two Bend Police Department officers
held Ms. Frank's head and limbs to prevent her from
assaulting anyone, and a female nursing assistant used
blankets or towels to keep Ms. Frank as covered as
possible while she removed Ms. Frank's street clothing
and replaced them with hospital scrubs. The males in the
room made every effort to avert their eyes from Ms.
Frank.
They did not physically remove her clothing or
redress her.
I was at the head of the bed, holding Ms.
Frank's head, so I was able to see what was taking place
throughout the change.
Page 17 - OPINION AND ORDER

Id.

at en 8.

Like Timms and Palmer,

Ryan concluded that,

"to a

reasonable degree of medical certainty, all of the care provided to
Ms.

Frank while

she

was

in

the

[ED]

was

consistent

with

the

hospital policy requiring patients to change into scrubs, and was
consistent with the standard of care."

Id. at en 10.

Beutler, the night nurse who assumed plaintiff's care upon her
admittance to the PES unit, opined that, "to a reasonable degree of
medical certainty, all of the care provided to Ms. Frank while she
was in the

[PES]

unit on January 13 and 14,

with the community standard of care."

2010 was consistent

Beutler Decl.

Powers, who is the manager of the PES unit,

enen 3,

6-8.

testified that "the

care and services provided to" plaintiff, "the training provided to
hospital employees regarding dealing with mental health patients,"
and "the hospital policy requiring patients to change into scrubs
before going to PES" were all "to a reasonable degree of medical
certainty,

. consistent with the community standard of care."

Powers Decl. enen 5-8.
This evidence establishes that:

( 1)

the care and treatment

provided to plaintiff by defendants while she was in the ED and PES
unit was appropriate and within the applicable standard of care;
(2)

SCMC's policies requiring plaintiff to change into hospital

scrubs, with the use of restraint if necessary, upon her admittance
to the PES unit was appropriate and within the applicable standard
of care;

and

(3)

the training provided by SCMC to its employees

regarding managing mentally ill patients was appropriate and within
Page 18 - OPINION AND ORDER

the applicable standard of care.
Palmer

was

not

responsible

This evidence also reveals that

for,

nor

did

he

participate

in,

plaintiff's forcible change into hospital scrubs.
Plaintiff

neglected

to

provide

any

response to defendants' expert opinions.

relevant

evidence

in

In fact, the only opinion

evidence that plaintiff provided was her own declaration, as well
as the declaration of Andrew Renouf, Ph.D.

It is undisputed that

plaintiff is not a medical expert; as a result, she cannot create
a question of fact by submitting her own testimony.
v.

United

States,

addition,

much

declaration

is

of

838

F.2d

the

390,

392-93

information

immaterial.

See,

(9th

Cir.

contained

e.g.,

See Hutchinson

Frank

in

1988).

In

plaintiff's

Decl.

~~

1-11

(discussing her prior mental health hospitalizations in different
states).
keys

Further, plaintiff's declaration does not discuss several

facts,

actions.

including the events
See

generally

id.

that precipitated defendants'

For

these

reasons,

plaintiff's

testimony is not sufficient to create a genuine issue of fact.
Dr. Renouf's declaration also fails to raise a genuine issue
of material fact.
See Renouf Decl.

Dr. Renouf is a psychologist from California.
~~

2-4 & Ex. 1.

Accordingly, he is not qualified

to testify about whether an ED physician's actions conformed with
the

relevant

standard

of

care

in

Bend,

Oregon;

seeming

to

acknowledge this, Dr. Renouf does not address the standard of care.
Rather, he states only that plaintiff suffered emotional distress
as a result of the events that took place on January 13, 2010.
Page 19 - OPINION AND ORDER

Id.

at

6.

<JI

Even assuming that he is qualified to render an expert

opinion regarding causation, there is no indication that Dr. Renouf
reviewed

any

of

the

Supplemental Ex.

C to

evidence
Pl.'s

pertinent

Second Mot.

to

this

case.

Partial Summ.

J.

See
at· 1

(stipulating that the only evidence Dr. Renouf reviewed in making
his

assessment,

outside of his

examination of plaintiff,

was

a

psychiatric evaluation performed in 2005 and plaintiff's subjective
reporting of events).

As such,

Dr.

See,

Renouf's opinion.

the Court questions the basis of

e.g.,

Clark v. Am.

2006 WL 696256, *3 (D.Or. Mar. 16, 2006)

Nat'l Red Cross,

(rejecting medical expert

opinion evidence based solely on plaintiff's statements, which were
unsupported

by

the

record) .

inadequate to create a

In

any

event,

this

testimony

is

genuine issue of material fact regarding

whether Palmer's or Timms' care fell below the applicable standard
of care and whether any alleged breach of that standard resulted in
harm to plaintiff.

7

Finally, the Court finds that COEP's contract with SCMC does
not alter the common law standard of care.

Even assuming that

plaintiff could impose tort liability on Palmer based on a contract

7

Plaintiff asserts for the first time in her response to
SCMC's and Timms' joint motion for summary judgement that Dr.
Renouf is "expected" to "testify that the employees and agents
should have been aware that performing a forced opposite gender
strip search on an individual with Plaintiff's history of sexual
abuse would place her at a great risk for psychological harm."
Pl.'s Opp'n to SCMC's & Timms' Mot. Summ. J. 13.
This assertion
is insufficient to create a genuine issue of material fact for
the reasons discussed above.
Page 20 - OPINION AND ORDER

to which she is not a party,

the provision on which she relies

expressly incorporates the common law standard of care.
Reply to

First Mot.

Partial

Summ.

Ex.

J.

See Pl.'s

D (physicians

"shall

[r]ender Services which are consistent with ususal and customary
medical community standards"); see also Buoy v. Soo Hee Kim,
Or.App. 189, 204, 221 P.3d 771 (2009)
not establish liability in tort")

232

("a breach of contract does

(citation omitted).

As discussed

above, defendants provided evidence that their care and policies
met this standard,

which plaintiff failed to refute.

Further,

while Palmer concedes that he was unaware of their terms, there is
no evidence in the record that he violated SCMC's polices.
In sum, where, as here, a plaintiff fails to present opposing
expert

opinion evidence

negligent,

"[i]t

indicating that medical providers were

must

be

taken

as

undisputed

that

the

treatment was consistent with the requisite standard of care."
Tiedemann, 299 Or. at 245.

In other words, plaintiff's failure to

provide medical opinion evidence regarding the standard of care and
causation is determinative at this stage in the proceedings.

See,

~'

Swanson, 2009 WL 5149265 at *5 (citing Celotex, 477 U.S. at

324).

Therefore, Palmer's and Timms' motions for summary judgment

are granted, and plaintiff's motions are denied, as to this claim.
ii.

Negligence Per Se

To establish a negligence per se claim, plaintiff must prove
that:

(1) "defendants violated a statute or rule";

was injured as a result of that violation";
Page 21 - OPINION AND ORDER

(2) "plaintiff

( 3) "plaintiff was a

member of the class of persons meant to be protected by the statute
or rule"; and (4) "the injury plaintiff suffered is of a type that
the statute or rule was enacted to prevent."
204 (citing McAlpine, 131 Or.App. at 144).

Buoy, 232 Or.App. at

"Strictly speaking, the

doctrine of 'negligence per se' does not create a cause of action
it refers to a standard of care that a law imposes within a
cause of action for negligence."
n.3, 757 P.2d 402

Gattman v. Favro, 306 Or. 11, 15

(1988).

Additional limitations apply, however, when the application of
negligence per se is based on a violation of an administrative
regulation, rather than a statute.
at *11.

See Barringer, 2010 WL 5349206

First, "the regulation must,

in fact,

support a private

right of action under the four-part test prescribed in McAlpine."
Id.

(citation omitted).

Second, "even if the regulation meets the

factors set forth in McAlpine, its terms permitting the imposition
of private liability must

not be ultra vires."

Id.

( citation

omitted).
Here, plaintiff's negligence per se claim is based on a number
of

sources:

Or.

Rev.

Stat.

§§

426.005

through

426.390;

Oregon

Administrative Rules ("OAR") 309-033-0200 through 309-033-0800; the
Joint Commission on Accreditation of Health Care Organizations'
(" JCAHO") guidelines; 8 and SCMC' s policies.
8

See Pl.'s Second Mot.

JCAHO is a private corporation that creates guidelines for
the quality of services in hospitals. Membership is voluntary;
although SCMC is JCAHO accredited, many hospitals are not.
See
SCMC's Resp. to Pl.'s Second Mot. Summ. J. 8.
Page 22 - OPINION AND ORDER

Partial Summ. J. 12-17; Pl.'s Mem. in Supp. of First Mot. Partial
Summ. J. 9-20; Pl.'s Reply to First Mot. Partial Summ. J. 17.
Negligence

a.

Per

Based

Se

Policies,

on

Procedures, or Guidelines
SCMC's policies and JCAHO's guidelines are insufficient to fix
the legal standard of conduct and create a civil cause of action
under Oregon law; in fact, the parties have not cited to, and the
Court

is

not

aware

of,

any

precedent

that

has

permitted

a

negligence per se claim to proceed based on anything other than a
statute or regulation.
(negligence per
policies);
Assocs.,

see

se

9

See Barringer,

2010 WL 5349206 at *11

claim cannot be based on county's

also

Kadlec

2006 WL 1328872,

*2

Med.

Cnty.

(E.D.La.

v.

Lakeview

May 9,

2006)

internal

Anesthesia

(as amended)

("JCAHO guidelines do not provide a negligence cause of action").
Moreover,

even

if

these

negligence per se claim,

sources

were

a

proper

basis

for

a

based on the record before the Court,

plaintiff does not raise a genuine issue of material fact as to
defendants'

reasonable

adherence

to

the

SCMC

policies

and

procedures outlined in section I.
b.

Negligence Per Se Based on Statute

Chapter 426 of the Oregon Revised Statutes includes a number
9

Plaintiff's briefs invoke numerous documents, promulgated
by a variety of sources; it is difficult to decipher whether her
negligence per se claim was intended to encompass these other
sources as well.
Nonetheless, for the reasons stated above,
plaintiff's negligence per se claim fails to the extent it is
based on any source beyond a statute or OAR.
Page 23 - OPINION AND ORDER

of laws concerning the commitment and treatment of persons with
mental illness.
Stat.

Nonetheless, the Court finds that only Or. Rev.

426.072, 426.231, and 426.232 are potentially applicable

§§

to this claim.

Of these statutes, however, only Or. Rev. Stat.

§

426.072 relates to the standard of care:
All methods of treatment, including the prescription and
administration of drugs, shall be the sole responsibility
of the treating physician. However, the person shall not
be subject to electroshock therapy or unduly hazardous
treatment and shall receive usual and customary treatment
in accordance with medical standards in the community.
Or. Rev. Stat.

§

Plaintiff

426.072 (c) (2).
argues

"administration"

in

the

that

the

statute

inclusion

requires

provide medication to every patient.

of

Palmer

the

to

word

personally

Plaintiff also asserts that

the medications prescribed to her by Palmer constitute "unduly
hazardous

treatment"

within

the

meaning

of

the

statute.

In

addition, plaintiff contends that the "use of the word 'and' in ORS
426.072 (c)

is

a

clear

indicator

that

the

usual

and

customary

treatment of patients in accordance with medical standards in the
community is in 'addition to' the mandates and duties outlined in
the statute and rules."

Pl.'s Reply to First Mot. Partial Summ. J.

12.
As

an

initial

matter,

plaintiff

failed

to

provide

any

authority for her assertion that the medications prescribed to her
qualify

as

"unduly

hazardous

treatment";

in

medications cannot be characterized as such.
Page 24 - OPINION AND ORDER

any

event,

these

See Nash v.

Lewis

("Nash I"), 2007 WL 2027283, *2

(D.Or. July 6, 2007).

While the

phrase "hazardous treatment" is not defined by statute or OAR, it
is referenced only in the context of electroshock therapy.
Or. Rev. Stat.

~,

is undisputed,

Court

notes

426.072 (c) (2); OAR 309-033-0625 (4) (b).

§

however,

analogous treatment,
that

See,

that electroshock therapy,

did not occur in this case.

plaintiff complains

It

or any other
Further,

in other portions

the

of her

pleadings that defendants never "offered a tablet form of any anti
anxiety medication," suggesting that the particular medications
prescribed were
Decl.

<]I

Summ.

20;

J.

not,

in-and-of-themselves,

see also Pl.'s Mem.

4-5

(conceding

that

in Supp.
the

"hazardous."
of First Mot.

medical

necessity

Frank
Partial
of

the

prescribed medications); Pl.'s Reply to First Mot. Partial Summ. J.
2-3 ("Plaintiff does not dispute that Palmer order medications of
appropriate

dosage

and

timing

for

someone

requiring

immediate

chemical restraint") .
Moreover, aside from precluding "unduly hazardous treatments,"
the statute expressly incorporates the common law standard of care.
See Tiedemann, 299 Or. at 248.

A statute establishes the standard

of care if it "so fixes the legal standard of conduct that there is
no

question

Shahtout v.
(1985).

of due

care

left

Emco Garbage,

Co.,

for

a

fact finder

298 Or.

598,

601,

to

determine."
695 P.2d 897

Beyond stating that the treating physician shall be solely

responsible for all methods of treatment in accordance with the
usual and customary medical standards in the community, the statute
Page 25 - OPINION AND ORDER

does not explicitly outline any other duties.
§

426.072.

See Or. Rev. Stat.

This language, however, leaves the question of due care

to the factfinder.

Further, as discussed above, Timms and Palmer

provided uncontroverted evidence that they complied with the common
law standard of care.

Accordingly, on the record before the Court,

plaintiff cannot sustain a negligence per se claim based upon Or.
Rev. Stat.

§

426.072 (c) (2).

Finally, even construing the first sentence of this provision
as imposing a separate and definable standard of care, plaintiff's
claim still fails.

While "administration" is not defined within

Chapter 42 6 of the Oregon Revised Statutes or the
rules, 10

administrative

it

plainly

means

"the

implementing

management

of

affairs." Webster's II New Riverside University Dictionary 79 (2d
ed. 1988); see also Webster's Third New International Dictionary 28
(1st

ed.

1971)

administering . .

(defining

"administration"

as

"the

act

of

performance or execution of duties: MANAGEMENT,

DIRECTION, SUPERINTENDENCE"); The Oxford English Dictionary, Vol .

.I 163

( 2d ed.

2 0 01)

(defining "administration" as

10

"the act of

Plaintiff's reliance on the Oregon Uniform Controlled
Substances Act's definition of "administration" and "administer"
is unpersuasive.
This statute is inapplicable to the present
dispute, as it governs an entirely different area of law.
For
instance, under this statute "administration" is defined as "the
Drug Enforcement Administration of the United States Department
of Justice, or its successor agency." Or. Rev. Stat. §
475.005(3).
To the extent that this statute is arguably germane,
it supports the above construction.
See Or. Rev. Stat. §
42 6. 005 ( 2) ("Administer means the direct application of a
controlled substance .
. to the body of a patient or research
subject by [a] practitioner or an authorized agent thereof").
Page 26 - OPINION AND ORDER

administering

management") .

The

Court

also

finds

the

definition of "administer" and "administering" to be instructive in
this instance, which are defined respectively as "to have charge
of: MANAGE .

.to manage as an administrator" and "managing."

Webster's II New Riverside University Dictionary 79 (2d ed. 1988);
see also Webster's Third New International Dictionary 27-28

(1st

ed. 1971); The Oxford English Dictionary, Vol. I 163 (2d ed. 2001).
The

context

of

interpretation.

the

statutory

scheme

at

issue

supports

this

See generally OAR 309-033-0200 et seq.; Or. Rev.

Stat. Chapter 426.
Thus, this statute must be conspicuously read as imposing a
duty on

Palmer to oversee plaintiff's

conduct

every modality of treatment. 11

care,

not

to personally

In other words,

Palmer

neither violated the statute nor was otherwise negligent simply by
delegating

certain

facets

of

plaintiff's

treatment

to

other

qualified hospital staff.
c.

Negligence Per Se Based on Administrative Rule

OAR 309-033-0200 through 309-033-0800 are the implementing
regulations

for Chapter 426 of the Oregon Revised Statutes and

specifically govern involuntary commitment proceedings.
11

See OAR

0rdinarily, examination of the legislative history would
supplement this Court's interpretation of Or. Rev. Stat. §
426.072.
See State v. Gaines, 346 Or. 160, 171-72, 206 P.3d 1042
(2009) (describing the legal framework for statutory
interpretation). Here, however, the parties did not brief this
issue and, accordingly, did not provide any information or make
any arguments regarding the legislative history.
Regardless, the
Court finds the dictionary definition to be sufficient.
Page 27 - OPINION AND ORDER

309-033-0200 (1).

While plaintiff argues broadly that defendants

violated all of these regulations,

her briefs only refer to OAR

309-033-0625, which regulates the treatment of committed persons
without

informed

consent.

As

such,

these

regulations

are

inapplicable here because it is undisputed that plaintiff "was not
a person 'committed' as opposed to a person in custody pursuant to
an ORS 426.232 hospital hold."
(citations omitted);
Partial

Summ.

see also Pl.'s Mem.

17

J.

Nash I ,

(acknowledging

legally committed person") .

2 0 0 7 WL 2 0 2 7 2 8 3 at
in Supp.

that

*1

of First Mot.

"Plaintiff was

For this reason alone,

not

a

plaintiff's

claim fails.
Even assuming, however, that OAR 309-033-0625 does apply in
this case, plaintiff failed to brief, let alone establish, that all
the

elements

further,
liability

of

a

negligence

per

se

that

its

terms

permitting

are

not

ultra

vires.

claim are
the

For

fulfilled

imposition

and,

private

additional

this

of

reason,

plaintiff's claim fails.
Finally, contrary to plaintiff's assertions, the inclusion of
the word "administer"

in this OAR does

not obligate

personally inject plaintiff with medication.
0625 (1)'

( 4) (a)

(the

treating

physician

Palmer to

See OAR 309-033-

"shall

[a]dminister

medication and treatment in accordance with medical standards in
the

community") . 12

As

discussed

12

above,

this

language

This subsection imposes a number of additional
requirements on the treating physician when administering
Page 28 - OPINION AND ORDER

merely

requires the treating physician to manage a patient's medication
and treatment in accordance with the common law standard of care,
which undisputedly occurred in this case.
Aff.

See generally Palmer

Moreover, this statute clearly authorizes the administration

of significant procedures, including medication, without informed
consent where an emergency exists.

See OAR 309-033-0625(3); see

also OAR 3 0 9- 0 3 3- 0 6 2 5 ( 4 ) ( f) .
Here, defendants submitted uncontradicted evidence that such
an emergency existed and that the use of the prescribed medications
was medically necessary in order to prevent plaintiff from harming
herself or others.
also

OAR

assuming

See generally Palmer Aff.; Timms Decl.;
(defining

309-033-0625(3)
that

sufficiently

OAR 309-033-0625
specific

is

standard

of

"emergency").
applicable
care,

and sets

plaintiff

demonstrate that defendants violated this rule.

Thus,

see
even

forth

failed

a
to

Therefore, to the

extent that plaintiff asserts a negligence per se or statutory
negligence claim,

Timms'

and Palmer's motions are granted,

and

plaintiff's motion is denied.
B.

IIED, NIED, and RIED Claims Against SCMC, Palmer, Timms,
Namanny,

Macdonnell,

Ryan,

Violet,

Huffman,

Lancaster,

Mcbride, Beutler, and Nelson
Plaintiff's NIED, RIED, and IIED claims are based on the same
significant procedures without informed consent to involuntarily
committed persons.
See OAR 309-033-0625 ( 4) (b)- (g).
Plaintiff,
however, has not set forth facts, let alone any evidence,
indicating that these provisions were implicated or violated.
Page 29 - OPINION AND ORDER

facts and arguments as her negligence claim.
such,

plaintiff

accommodations

contends
to

their

that

See TAC

defendants'

disrobing

policy

failure
based

58-64.

~~

to

on

As

provide

plaintiff's

history of abuse constituted socially intolerable behavior.
A preliminary matter must be addressed before reaching the
merits of plaintiff's emotional distress claims.
2 012,

pursuant

to

the

conferral

process,

dismiss her claims for RIED and IIED.
of Palmer's Supplemental Mot. Summ. J.
plaintiff
claims.

filed

her

TAC,

On October 26,

which

plaintiff

conferral

failure
process,

to

agreed

to

See O'Kasey Decl. in Supp.
~

2.

On September 21, 2012,

includes

REID,

IIED,

and

NIED

2012, plaintiff informed defendants that

she was withdrawing her earlier dismissals.
Plaintiff's

On August 27,

abide by her

especially

in

own
the

Id. at

statements
light

of

4 & Ex.

~

during

1.
the

defendants'

significant expenditure of time and resources litigating this case
due in part to plaintiff's conduct, is reason alone to dismiss her
IIED and RIED claims.
se,

the

Court

will

Nevertheless, because she is proceeding pro
briefly

address

plaintiff's

IIED

and

REID

claims.
i.

IIED Claim

To prevail on an IIED claim, a plaintiff must show that:

(1)

defendants "intended to cause plaintiff severe emotional distress
or knew with substantial certainty that their conduct would cause
such

distress";

i.e.,

conduct

( 2)

defendants

extraordinarily

Page 30 - OPINION AND ORDER

"engaged in outrageous

conduct,

beyond

socially

the

bounds

of

tolerable behavior"; and (3) such "conduct in fact caused plaintiff
severe emotional distress."
58,

179 P.3d 730,

House v. Hicks, 218 Or.App. 348, 357-

rev. denied,

(citation omitted).

345 Or.

381,

195 P.3d 911

(2008)

In regard to the second element, the conduct

must be "so outrageous in character, and so extreme in degree, as
to go beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community."

Id.

at

The

358

(citation

determination

of

and

internal

whether

conduct

quotations
rises

to

omitted).
this

level

"is

a

fact-specific inquiry, to be considered on a case-by-case basis,
While "the

based on the totality of the circumstances."

inquiry is fact-specific, the question of whether the defendant's
conduct

exceeded

the

farthest

reaches

of

socially

tolerable

behavior is, initially, a question of law" for the court.

Gordon

v. Kleinfelder W., Inc., 2012 WL 844200, *14 (D.Or. Mar. 12, 2012)
(citation and internal quotations omitted).
As
whether

such,

to

judgment,

a

conduct
an

state

is

court

claim.

liED

must

sufficiently

as

bounds

atrocious,
of

utterly

decency.

As

assess

"extreme

and

defendants'

simply cannot be

intolerable,
discussed

first

Here,

while clearly upsetting to plaintiff,

categorized
possible

summary

defendants'

outrageous"
conduct,

on

or

above,

beyond

all

defendants

provided ample, uncontradicted evidence that their intent in using
restraint to effectuate SCMC's polies was to ensure plaintiff's
safety and well-being,

as well as the safety and well-being of

Page 31 - OPINION AND ORDER

hospital
Decl.;

staff.

See generally Palmer Aff.;

Powers Decl. ;

defendants
hospital
policy.

Beutler Decl.

Timms

of her

own

Ryan

It is also undisputed that

gave plaintiff several opportunities

scrubs

Decl.;

accord and

to change

informed her

of

into

SCMC' s

Only after plaintiff became combative and threw the scrubs
See Ryan Decl.

at hospital staff was restraint employed.
Further,

defendants

plaintiff's
notably,

the

privacy
men

in

used
was

reasonable

intruded

the

upon

room averted

participate in the actual disrobing,

means
as

to

ensure

little

their

as

eyes

skin check,

91 6.
that

possible;

and

did

not

or redressing.

Id. at 91 8; see also Pl.'s Mem. in Supp. of Opp'n to Palmer's Mot.
Summ. J. Ex. 4, at 3-4 (Macdonnell and Namanny "assisted SCMC staff
with this process [of changing plaintiff into hospital scrubs], and
all of the men present made every effort to look away while Frank
was in a

state of undress").

In addition,

defendants provided

evidence that medications of the type and quantity administered
were

reasonably

necessary

under

plaintiff's health and safety.

the

circumstances

to

protect

See generally Timms Decl.; Palmer

Aff.
In sum, the record before the Court reveals that defendants'
actions were aimed at helping,

rather than harming,

plaintiff.

That such assistance may have been rendered clumsily, of which the
Court

offers

no

opinion,

plaintiff's IIED claim.

is

inadequate

for

the

purposes

of

Accordingly, the Court finds that, as a

matter of law, defendants' conduct cannot reasonably be regarded as
Page 32 - OPINION AND ORDER

so

extreme

and

outrageous

as

to

permit

Therefore,

recovery.

defendants' motions are granted as to plaintiff's IIED claim.
ii.

NIED Claim

Under Oregon law, emotional distress damages generally are not
recoverable under a negligence theory;

however,

a plaintiff can

recover "'for emotional distress caused by ordinary negligence, but
only if the distress is accompanied by physical impact.'"
Dauven v. George Fox Univ., 2011 WL 901026, *2-3
2011)
551,

(quoting Lowe v.
142

P.3d

1079

Philip Morris USA,

(2006),

aff'd,

344

(D.Or. Mar. 15,

Inc., 207 Or.App.
Or.

See

403,

183

532,

P.3d

181

In other words, in order to prevail on a NIED claim, a

(2008)) .

plaintiff must prove that she suffered a physical injury, which in
turn

caused

negligence.

emotional

distress,

as

a

result

See Chouinard, 179 Or.App. at 512.

of

defendants'

In certain limited

circumstances, however, a plaintiff may recover for NIED, even in
the absence of a physical injury,
breached

a

particular

"specific
adverse

medical procedures."

duty

to

be

psychological

where the defendant's actions
aware

of

reactions

and
or

guard

against

consequences

to

Curtis v. MRI Imaging Servs., 327 Or. 9, 14-

15, 956 P.2d 960 (1988).
As discussed in section I (A) (I) , defendants provided unrefuted
evidence that their care, as well as SCMC's policies and training,
met the common law standard of care.

Because defendants' evidence

demonstrates that they were not negligent, plaintiff's NIED claim,
which is contingent upon a finding of negligence, fails as a matter
Page 33 - OPINION AND ORDER

of law.

See, e.g., Chouinard, 179 Or.App. at 511-15

(NIED claim

only viable where it was undisputed that the defendants'

conduct

fell below the applicable standard of care) .
Moreover,

plaintiff did

not

establish

the

existence

physical injury, which is a threshold requirement.

of

a

While neither

the Oregon Supreme Court nor the Oregon Court of Appeals "have
sought to define the minimum amount of bodily harm necessary to
constitute a physical impact" in the context of a NIED claim, it is
well-settled that

"some form of physical injury" or "offensive

sexual touching" is a prerequisite to recovery.

Id.

at 514-15

(citations omitted).

Accordingly, "[a]t a minimum, the physical

impact

an

rule

requires

act

or

omission

perceptible physical effect on a plaintiff."

that

results

in

some

Id. at 515 (citations

omitted).
Here, plaintiff alleges that she was "molested"; in addition,
she asserts that she suffered jaw pain for a few weeks following
the events at issue.

See TAC

CJ!CJ!

2,

64.

Beyond so concluding,

plaintiff has put forth no facts or evidence indicating that the
physical restraint employed to effectuate her change into hospital
scrubs was sexual in nature.

To the contrary, the evidence in the

record indicates that defendants used reasonable means to ensure
that plaintiff's bodily integrity and privacy remained intact.
Ryan Decl.

CJ[

8; see also Pl.'s Mem. in Supp. of Opp'n to Palmer's

Mot. Summ. J. Ex. 4, at 3-4.
defendants'

See

Thus, while plaintiff may have found

use of restraint and disrobing to be offensive,

Page 34 - OPINION AND ORDER

any

contact with plaintiff's breasts, buttocks, or genitals was neither
intentional
Hudson

nor

Corp.,

See

sexually motivated.
1999

WL

446884,

Panasewich v.

(D.Or.

*10

Apr.

Dayton

28,

1999)

("substantial nonconsensual sexual touching," involving an element
of intent, is required to sustain a NIED claim, citing Shoemaker v.
Mqmt. Recruiters Internat'l, 125 Or.App. 568, 573-74, 865 P.2d 1331
(1993);
1379,

and Wilson v.

rev.

denied,

Tobiassen,

308 Or.

500,

97 Or.App.
784 P.2d 441

527,

532,

(1989)).

777

P.2d

Further,

while not dispositive, the Court notes that the entire situation
could have been avoided had plaintiff merely complied with SCMC's
policies of her own volition.
In addition, plaintiff did not proffer any evidence that she
suffered a jaw injury or any damages as a result of that injury.
Critically, she also does not argue that this jaw pain caused the
emotional

distress

she

allegedly

negligent

endured

Summ.

J.

Summ.

19-20.

the

See

treatment.

Palmer's Supplemental Mot.
SCMC's Mot.

as

J.

Pl.'s

10;

As such,

result

of

Resp.

Pl.'s Resp.

defendants'
in

Opp'n

in Opp'n to

without now defining the

scope of the physical impact rule,

the Court finds that,

facts

these

and

evidence

of

this

case,

to

instances

of

on the

physical

contact or pain are not sufficient to sustain a NIED claim.
Lastly,

a physician does not have a general duty to guard

against emotional harm, even in the context of a patient-physician
relationship.
prevail on a

See Curtis,

327 Or.

at 15-16.

Thus,

in order to

claim for emotional distress damages in a medical

Page 35 - OPINION AND ORDER

malpractice case that does not involve a physical injury, plaintiff
must prove that there was a standard of care that included a duty
to protect against psychiatric harm.

See Navarette v. Nike, Inc.,

2007 WL 221865, *4 (D.Or. Jan. 26, 2007), aff'd, 332 Fed.Appx. 405
(9th Cir.

June 10,

Ratherberger v.

2009)

(citing Curtis,

James Hemengway,

Inc.,

327 Or.

at 14-16;

176 Or.App.

135,

145,

P.3d 1200 (2001), aff'd, 335 Or. 404, 414, 69 P.3d 710 (2003))

and
30
As

discussed above, plaintiff failed to identify a standard of care
that contains a duty to protect against emotional distress;

in

fact, plaintiff's entire argument in favor of a heightened duty is
based on the existence of a patient-physician relationship and her
assertion that Timms and Palmer had knowledge of her past abuse.
This is insufficient, especially in light of defendants' unrefuted
expert opinion evidence.
SCMC's policies,

Simply put, plaintiff's unhappiness with

and defendants'

cannot sustain a NIED claim.

enforcement of those policies,

Accordingly, defendants' motions for

summary judgment are granted on this claim and plaintiff's motion
is denied.
iii. RIED Claim
RIED

claims

are

appropriate

in

three

narrowly-drawn

circumstances: ( 1) "when accompanied by physical injury"; ( 2) "when
a defendant's conduct infringes on a legally protected interest";
and

(3)

harm."
2009),

"where there is a duty to protect against psychological
Dawson v.
rev'd

on

Entek Int'l,
other

grounds,

Page 36 - OPINION AND ORDER

662
630

F.Supp.2d 1277,
F. 3d

928

(9th

1292

(D.Or.

Cir.

2011)

(citations omitted).

Plaintiff makes no argument and provides no

evidence to show that the second circumstance applies in this case.
Further, the Court finds that the first and third circumstances are
not implicated here; as discussed in section II(B) (ii), plaintiff
did

not

establish

heightened

duty

of

the

existence

care.

of

Therefore,

a

physical

injury

defendants'

or

a

motions

are

Plaintiff contends that SCMC was negligent by failing to:

(1)

granted as to plaintiff's RIED claim.
C.

Negligence Claim Against SCMC

"maintain the organization and operation of the
[JCAHO] guidelines";
and

procedures

[ED]

within the

(2) "develop clear and well-defined policies

relating

to

[ED

personnel

and

services]

as

it

relates to allegedly mentally ill persons brought [in] pursuant to
ORS 426.228"; and (3) "eradicate the unwritten practice and custom
of performing opposite gender strip searches of allegedly mentally
ill

patients."

Pl.'s

Second Mot.

Partial

Summ.

J.

4-5.

In

addition, plaintiff asserts that SCMC is vicariously liable for the
negligence of its agents.
Plaintiff's claim against SCMC is dismissed.

First, plaintiff

concedes that SCMC "has implemented its work instruction policies
to mirror the conditions of participation as outlined by [JCAHO] ."
Id. at 8.

As discussed above, however, while SCMC's policies and

JCAHO's guidelines may be relevant to establishing a common law
negligence claim, they are insufficient to fix the legal standard
of conduct and create a civil cause of action for a negligence per
Page 37 - OPINION AND ORDER

se or statutory tort claim.
Further,

it

is

undisputed

that

SCMC

had

policies

and

procedures in place that expressly authorized the use of restraint
to change a PES Unit admittee out of their street clothes and into
hospital scrubs.
Search Policy,

See generally Disrobing Policy, Restraint Policy,
and Hold Procedure.

Defendants provided expert

testimony that the training provided to hospital employees dealing
with mental health patients is appropriate and within the standard
of care.

~

See Powers Decl.

8.

In addition, defendants set forth

evidence establishing that their use of force in this case was not
excessive or abusive.

See Abel Decl. Ex. 2, at 2-6.

Plaintiff did

not provide any relevant evidence in support of her assertions to
the contrary.

Without more, plaintiff cannot demonstrate that SCMC

was negligent for failing to have such a policy or for failing to
adequately

train

its

employees

pursuant

to

that

policy.

See

Swanson, 2009 WL 5149265 at *5; Tiedemann, 299 Or. at. 243-49.
Moreover,

plaintiff's

assertion

that

SCMC' s

policies

were

deficient because they did not provide reasonable accommodations or
alternatives to physical restraint for patients "who are reluctant
to remove their clothing" is misguided.
Summ. J. 12; TAC
evidence

regarding

accommodations
policy;

~~

37-38.
the

are not

defendants

As discussed above, defendants provided
need

allowed,

also

Pl.'s Second Mot. Partial

for

the

and the

provided

Disrobing

Policy,

reasonableness

evidence

that

why

of this

plaintiff

was

presented with numerous opportunities to voluntarily change into
Page 38 - OPINION AND ORDER

hospital scrubs, even after being informed of SCMC's polices, and
refused to do so.
failed

to

rebut

See generally Ryan Decl.
this

evidence.

As

a

Plaintiff once again

result,

SCMC

adequately

established that having hospital policies in place that require all
patients

to

change

into

scrubs,

with

the

use

of

restraint

if

necessary, prior to being admitted to the PES unit is within the
standard of care and is therefore not negligent.
Finally, where, as here, the agent is not negligent, there is
no basis for a vicarious liability claim against the principal.
See Allen v. Kaiser Found. Hosp., Inc., 76 Or.App. 5, 8, 707 P.2d
1289 (1985); Checkley v. Boyd, 198 Or.App. 116, 134 n.14, 107 P.3d
651,

rev.

denied,

338

Or.

583,

114

P.3d 505

(2005).

Because

plaintiff failed to provide a medical expert or other relevant
evidence regarding the standard of care and causation, defendants'
evidence as to these issues is dispositive.

See Swanson, 2009 WL

5149265 at *5; Tiedemann, 299 Or. at. 243-29.

Defendants' evidence

demonstrates that neither SCMC nor any of its employees or agents
were negligent in enforcing the policies at issue or in providing
medical care to plaintiff.

Accordingly, there is no basis for SCMC

to be vicariously liable.

Therefore, SCMC's motion is granted and

plaintiff's motion is denied.
D.

Negligence Claim Against COEP

Plaintiff also

argues

that

COEP

is

liable

"for the

torts

committed by its individual Physicians, including but not limited
to Edward Palmer, MD for its negligence in failing to eradicate the
Page 39 - OPINION AND ORDER

unwritten unconstitutional

opposite

gender

strip

which ultimately led to Plaintiff's injuries."
COEP's Mot.

Summ.

J.

3;

see also TAC

search policy
Pl.'s Resp.

88-91.

<J[<J[

to

Specifically,

plaintiff contends that, pursuant to sections 1.5 and 1.7 of the
contract between SCMC and COEP, COEP was responsible for educating
Palmer and ensuring the quality of SCMC policies; COEP's alleged
failure to do so violated the standard of care.
Plaintiff's claim fails for two reasons.

Id.

First, as discussed

above, plaintiff failed to provide evidence that Palmer's treatment
was not in accordance with the relevant community standards;

in

addition, there is nothing in SCMC's policies that was negligent.
For this reason, COEP cannot be vicariously liable for Palmer's
SCMC' s

actions.

See Allen,

76

Or.App.

at

8-9;

Checkley,

or
198

Or.App. at 134 n.14.
Second,

contrary to plaintiff's assertion,

the contract at

issue does not grant COEP or any of its member physicians control
over SCMC's policies.

The provisions of that agreement cited by

plaintiff are inapplicable: section 1.5 governs quality assurance
and peer review policies,

and section 1. 7 governs

physicians' teaching requirements.
COEP's Mot.

Summ.

J.

Ex.

1,

at

the

covered

See O'Kasey Decl. in Supp. of
3-4.

In

addition,

the

plain

language of the contract specifies that neither COEP nor Palmer
have control of SCMC's policies.

Id. at 5 (COEP physicians are "at

all times acting as independent contractors and
partners,

joint-venturers

Page 40 - OPINION AND ORDER

or

employees

[and]

will

are not
not

for

any

purpose be deemed to be agents, ostensible or apparent agents, or
servant of [SCMC]").
While plaintiff is correct that "[t]he parties' description of
their legal relationship does not control the legal implications of
their

relationship,"

evidence beyond the

she

neglects

contract

that

to

introduce

COEP

or

any

relevant

Palmer exercise

any

control over the manner, means, or result of SCMC' s policy-making. 13
Pl.'s Resp. to COEP's Mot. Summ. J. 4 (citing Peeples v. Kawasake
Heavy Indus., Ltd.,

288 Or.

143,

150,

603 P.2d 765

(1979));

see

also Soderback v. Townsend, 57 Or.App. 366, 369, 644 P.2d 640, rev.
denied, 293 Or. 394, 650 P.2d 927 (1982)
between

independent

contractors

and

(discussing the difference

employees) .

additional evidence that plaintiff relies

on -

In
SCMC' s

fact,

the

"Bylaws,

Rules and Regulations" and "Plan for the Provision of Patient Care"
-

supports COEP' s

arguments in favor of summary judgment.

See

Pl.'s Opp'n to COEP's Mot. Summ. J. Exs. A-C.
In sum, SCMC enacted policies and procedures over which COEP
or Palmer had no control.

Accordingly, COEP's motion is granted

and plaintiff's motion is denied as to this claim.
III. Federal Claims
Plaintiff's federal claims are asserted pursuant to 42 U.S.C.

13

This is not to say that a hospital cannot be vicariously
liable for the medical malpractice committed by a physician who
is an independent contractor.
See, e.o,. Themins v. Emanuel
Lutheran Charity Bd., 54 Or. App. 901, 907-09, 637 P.3d 155, rev.
denied, 292 Or. 568, 644 P.2d 1129 (1982).
Page 41 - OPINION AND ORDER

§

1983.

To prevail on a claim under this statute, a plaintiff must

demonstrate that: 1) the conduct complained of deprived him or her
of an existing federal constitutional or statutory right; and 2)
the conduct was committed by a state actor or a person acting under
color of state law.
L.W. v. Grubbs,
508

u.s.

951

See West v. Atkins,

974 F.2d 119, 120

(1993).

§

42,

48

(1988);

(9th Cir. 1992), cert. denied,

In addition,

impose liability under 42 U.S.C.

487 U.S.

where a plaintiff seeks to

1983 against a municipality, he

or she must also establish that a policy or custom existed that was
the moving force behind the violation at issue.

See Mabe v. San

Bernardino Cnty., Dep't of Pub. Soc. Servs., 237 F.3d 1101, 1110-11
(9th Cir. 2001)
A.

(citation omitted).

Fourteenth Amendment Claim Against the City, Namanny, and
Macdonnell

Plaintiff contends that the individually named defendants and
the City violated her Fourteenth Amendment rights because their
conduct,

which

entailed

"restraining

plaintiff

and

forcibly

stripping [her] out of her clothing" pursuant to SCMC's policies,
was "unreasonable and/ or arbitrary, deliberately indifferent and/ or
shocking to the conscience."

TAC ' ' 66-70.

It is undisputed that there is a federally recognized liberty
interest in the right to bodily integrity under the

Fourteenth

Amendment. 14

272

See Albright v.

14

Oliver,

510

U.S.

266,

Plaintiff also asserts that defendants violated the
Fourteenth Amendment's Equal Protection clause; however,
Page 42 - OPINION AND ORDER

(1994)

(citation

omitted) .

Further,

it

is

undisputed

that

Namanny,

Macdonnell, and the City qualify as state actors for the purposes
of 42 U.S.C.

§

1983.

Nevertheless, liability under this statute

cannot be premised on a respondeat superior theory; accordingly, a
municipality may only be held liable if the entity itself acted
illegally through a policy or custom.

See Monell v. Dep't of Soc.

Servs. of N.Y., 436 U.S. 658, 691 (1978); see also Mabe, 237 F.3d
at 1110-11.

A policy is "a deliberate choice to follow a course of

action .

made from among various alternatives by the official

or officials responsible for establishing final policy with respect
to the subject matter in question."

Fairley v.

Luman,

913, 918 (9th Cir.), cert. denied, 537 U.S. 1044 (2002)
and

internal

quotations

omitted) .

A custom

is

a

281 F.3d
(citations

"widespread

practice that, although not authorized by written law or express
municipal policy, is .

. permanent and well-settled."

City of

St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988).
A policy or custom can be one of action or inaction.
of Canton v. Harris, 489 U.S. 378, 388 (1989).

See City

To impose liability

against a municipality for its inaction, "a plaintiff must show:
( 1)

that

a

[municipal]

constitutional rights;

employee

violated

the

plaintiff's

(2) that the county has customs or policies

that amount to deliberate indifference; and (3) that these customs

plaintiff failed to allege any facts, set forth any evidence, or
make any arguments in regard to this claim. As such, the Court
declines to address it.
Page 43 - OPINION AND ORDER

or policies were the moving force behind the employee's violation
of constitutional rights."
118 6 (9th Cir. 200 6)

Long v. Cnty. of L.A., 442 F.3d 1178,

( citation omitted) .

"Deliberate indifference

in this context requires proof that city policymakers disregarded
the

known or obvious consequence that a particular omission in

their

training

program

would

cause

city

employees

to

violate

citizens' constitutional rights."

Connick v. Thompson, 131 S.Ct.

1350,

internal

1354

Further,

a

untrained

(2011)

(citation

"pattern
employees

and

of

similar

is

ordinarily

deliberate indifference."

Id.

quotations

constitutional
necessary

omitted).

violations
to

by

demonstrate

(citation omitted).

Plaintiff has not identified any facts indicating that the
City or the Bend Police Department acted in an unlawful matter in
this case.

See generally TAC; Pl.'s Opp'n to City's Mot. Summ. J.;

Pl.'s Mem. in Supp. of Opp'n to City's Mot. Summ. J.

Moreover, it

is undisputed that plaintiff did not allege the existence of a City
policy

or

custom

that

was

the

constitutional violations at issue.

moving

force

behind

See generally TAC;

the

see also

Pl.'s Resp. to City's Mot. Summ. J. 3 (conceding that she "did not
allege

any

specific

Policy

of

the

City,

which

led

to

the

deprivation of her Constitutional rights in her complaint").
In order to cure these deficiencies,

plaintiff attempts to

establish the existence of such a policy or custom in her response
brief, asserting that defendants "were deliberately indifferent to
Plaintiff's Constitutional rights and that she suffered an injury
Page 44 - OPINION AND ORDER

because of

a

policy,

custom,

or practice

officers and the hospital employees."
Summ. J.
Summ.

J.

involving the police

Pl.'s Opp'n to City's Mot.

4; see also Pl.'s Mem. in Supp. of Opp'n to City's Mot.
8-10.

deprived of her

Specifically,

plaintiff asserts

Constitutional

rights

when

that

she was

she

"was

taken

into

custody due to a municipal policy of treating mentally ill persons
like prisoners."
J.

6.

Plaintiff

Pl.'s Mem. in Supp. of Opp'n to City's Mot. Summ.
also

contends

that

a

Bend

Police

Department

policy, "Dealing with the Mentally Ill III," is "unconstitutional
and discriminatory on its face" because "it portrays all mentally
ill persons as violent or having a propensity for violence."
Opp'n to City's Mot. Summ. J.

Pl.'s

4-5.

Aside from the fact that her TAC does not actually contain any
such allegations,

the City provided rebuttal testimony from the

Bend Chief of Police:
When taking a person into custody on a police officer
mental hold, it was always the policy, practice, and
custom of the City of Bend Police Department to have its
police officers follow the state law provisions in
relation to police officer mental holds, and to follow
any requirements of the Fourth and Fourteenth Amendments
. . . There has never been a policy, practice, or custom
of the City of Bend Police Department to promote or
encourage its police officers acting in a hospital
setting to violate the civil rights of a person that has
been taken into custody on a police officer mental hold.
Baxter Decl.

1-2.

The Court finds

this evidence sufficient to

establish that the City did not have a policy or custom, of action
or inaction, that was the moving force behind the alleged violation
of plaintiff's constitutional rights.
Page 45 - OPINION AND ORDER

Plaintiff failed to provide

any evidence in response and, accordingly, the City is entitled to
summary judgment.

See Nissan Fire & Marine Ins. Co. v. Fritz Cos.,

210 F.3d 1099, 1107 (9th Cir. 2000)
its

initial

burden

(once the moving party carries

of production,

"the

nonmoving

obligated to produce evidence in response") .

parties

were

Due to her pro se

status, however, the Court will discuss briefly additional reasons
why plaintiff's arguments fail.
Notably,
Mentally

Ill

plaintiff does
III"

was

a

not

explain how "Dealing with the

moving

force

behind

the

alleged

constitutional violations at issue; she only concludes that it "led
to

Plaintiff's mistreatment" because

mentally ill.

it

negatively depicts

Pl.'s Opp'n to City's Mot. Summ. J. 6.

the

Critically,

she does not address how this policy caused the restraint of her
liberty.

Further,

provides

information

the

plain

language

concerning

how

to

of

this

identify

policy
a

merely

potentially

mentally ill individual and counsels officers to exercise caution.
See Pl.'s Opp'n to City's Mot. Summ. J. Attach. 1.

The fact that

it could have been better worded is insufficient to raise a claim
under 42 U.S.C. § 1983.
Plaintiff's

arguments

regarding

indifference" are similarly unavailing.
plaintiff's rights were violated,
City disregarded a

defendants'

"deliberate

Here, even assuming that

there is no evidence that the

known or obvious consequence in training its

employees concerning the mentally ill, or exhibited a pattern of
similar constitutional violations.
Page 46 - OPINION AND ORDER

In fact,

plaintiff has

not

identified any facts or set forth any evidence regarding the Bend
Police Department's training program, which,

in this context, is

critical to a deliberate indifference claim.

See City of Canton,

4 8 9 U.S.

at 3 90-91

training

("the focus must be on the adequacy of the

program

that

a

particular

officer

may

be

unsatisfactorily trained" or that an injury could have been avoided
with "better or more training" will "not alone suffice to fasten
liability on the city").

In addition, Oregon law expressly allows

a police officer to "take into custody a person who the officer has
probable cause to believe is dangerous to self or to any other
person and is in need of immediate care

. for mental illness

[and] remove [him or her] to the nearest hospital."
§

426.228.

Or. Rev. Stat.

Thus, contrary to plaintiff's assertion,

she was not

taken into custody pursuant to a City policy or custom;
plaintiff

was

taken

into

custody

under

Oregon

law

rather,

and

it

is

undisputed that defendants had probable cause for their actions.
Further,

plaintiff has not set forth any facts or evidence

indicating that defendants knew or should have known that their
attendance
element.
2012).
scene

would

cause

plaintiff

See Henry A. v. Willden,

harm,

which

is

678 F.3d 991,

a

requisite

1001

(9th Cir.

The record demonstrates that, when Namanny arrived on the
of

plaintiff's

suicide

attempt,

he

interviewed

her,

identified her need for mental health treatment, and took her to
SCMC.

After observing her belligerent and threatening behavior on

numerous occasions on the evening in question,
Page 47 - OPINION AND ORDER

Namanny assisted

SCMC staff and Macdonnell in restraining plaintiff,
would

not

hospital

harm herself
scrubs

or

pursuant

others,
to

while

hospital

she

was

policy.

so that she
changed
There

into

is

no

allegation or evidence that defendants were subjectively aware of
plaintiff's past sexual abuse or that they exerted excessive force
in restraining her.

Accordingly,

to the extent that plaintiff

suffered psychological distress as the result of being forcibly
undressed in the presence of male police officers, such an injury
was not reasonably foreseeable by Namanny, Macdonnell, or the City.
Moreover,

the

Court

rejects

plaintiff's

assertion

that,

because "the government's interest ends at transporting the patient
to the

hospital," the City should be

liable

for

neglecting to

develop policies that require the police to abandon a mentally ill
person instantly upon his or her admittance to SCMC.
Supp.

of Opp'n to City's Mot.

Summ.

J.

9.

Pl.'s Mem. in

Plaintiff's claimed

right - to be free from the presence of officers upon walking into
the hospital,

after making repeated suicidal gestures and while

severely intoxicated - is markedly different from those previously
recognized under the Fourteenth Amendment.

See Albright, 510 U.S.

at 272 (noting that the protections of substantive due process have
been limited to "matters relating to marriage, family, procreation,
and the right to bodily integrity").
and this Court is not aware of,

Plaintiff has not cited to,

any authority that holds,

either

directly or by analogy, that the Due Process Clause protects such
an

interest.

Therefore,

Page 48 - OPINION AND ORDER

this

Court

declines

to

recognize

a

substantive due process
police

officers

interest

in the

right

to be

being

taken

to

immediately after

pursuant to Or. Rev. Stat.

§

free

the

from

hospital

426.228.

Lastly, to the extent that plaintiff asserts that the City can
be liable based on SCMC's Disrobing Policy, Restraint Policy, and
Hold Procedure, which "promote if not encourage police action in
the hospital setting for patients seeking mental health care," her
claim

also

fails.

Pl.'s

Plaintiff has not cited to,
precedent

that

municipality

authorizes

based

on

corporation's policies.
here.

the

Opp'n

J.

3.

and the Court is not aware of,

any

the

to

City's

imposition

existence

of

Mot.

of
a

Summ.

liability

separate,

on

a

private

In any event, the Court declines to do so

Thus, the City's motion is granted as to this claim.
B.

Fourteenth Amendment Claim Against SCMC, Palmer, Timms,
Ryan,

Violet,

Huffman,

Lancaster,

Mcbride,

Beutler,

Nelson, Namanny, and Macdonnell
Next,

plaintiff

contends

that

defendants

violated

her

Fourteenth Amendment rights by "repeated physical restraint and the
administering

of

involuntary medications."

TAC

~~

80-82.

discussed above,

there

interest

right to bodily integrity under the

in the

Amendment;

further,

there is a

As

federally recognized liberty
Fourteenth

neither Namanny and Macdonnell nor plaintiff

moved for summary judgment on these claims and it is undisputed
that the remaining defendants are not state actors.
this

claim turns on whether SCMC,

Page 49 - OPINION AND ORDER

Palmer,

Timms,

Accordingly,
Ryan,

Violet,

Huffman, Lancaster, Mcbride, Beutler, and Nelson were acting under
color of state law.
Generally, only a state actor, and not a private individual or
entity, may be liable under 42 U.S.C.

1983 because it "excludes

§

from its reach merely private conduct, no matter how discriminatory
or wrong."
(1999)

Am. Mfrs. Mut.

(citation

and

Ins. Co. v. Sullivan, 526 U.S.

internal

quotations

omitted);

40, 50

Sutton

v.

Providence St. Joseph Med. Ctr., 192 F.3d 826, 835 (9th Cir. 1999).
In other words, there is no right to be free from the infliction of
constitutional deprivations by private parties.
§

Nevertheless, "a

1983 action can lie against a private party when he is a willful

participant in joint action with the State or its agents."
v.

Rainey,

326

F.3d

1088,

1092

internal quotations omitted).
a party is

subject to

(9th

Cir.

2003)

Kirtley

(citation

and

The ultimate issue in determining if

suit under this

statute is whether "the

alleged infringement of federal rights [is] fairly attributable to
the

government."

fairly

attributable

judgment,"
state

Id.

courts

action:

(1)

as

(citations
state

omitted).

action

is

employ "four different
public

function;

governmental compulsion or coercion; and
Id.

a

While
matter

criteria"

( 2)

(4)

joint

"[w] hat
of
to

is

normative
identify

action;

( 3)

governmental nexus.

(citations and internal quotations omitted).

Satisfaction of

any one test is generally sufficient to establish state action.

As an initial matter,
Page 50 - OPINION AND ORDER

there are no specific assertions

in

plaintiff's complaint or briefs regarding which of these defendants
participated in changing her into scrubs or medicating her.
with

the

exception

involvement,

it

of

is

Ryan,

unclear

who
what

provided
role,

if

testimony
any,

the

Thus,

about

his

remaining

individually named defendants played in the challenged conduct.
Regardless, defendants argue that none of these tests are fulfilled
here because SCMC is a private hospital and its employees, as well
as Palmer, are private citizens; accordingly, any actions taken by
SCMC,

its

staff,

or

Palmer

were

not

done

on behalf

of

or

in

conjunction with the state.
Plaintiff does not address any of these specific tests in her
motions or briefs.

While difficult to decipher, the crux of her

argument is that defendants were engaged in state action because
"there is an apparent custom or practice between SCMC

[ED]

staff

. which was a somewhat controlling factor in the

and the City

incident that of which Plaintiff complains."
of Second Mot. Partial Summ. J. 13.

Pl.'s Mem. in Supp.

In addition, plaintiff argues

that, because SCMC is an "approved healthcare facility" under Or.
Rev.

Stat.

§

426.005 (d)

and defendants were acting pursuant to

state law in placing a mental health hold, they were acting under
color of state law.
not

provide

any

See TAC

evidence

~~

in

81-83.

Plaintiff, however,

does

support

of

that

her

assertion

defendants were acting under color of state law for the purposes of
a 42 U.S.C.

§

1983 claim.

Page 51 - OPINION AND ORDER

i.

Public Function Test

"Under the public function test, when private individuals or
groups

are

endowed

by

the

State

with

powers

or

functions

governmental in nature, they become agencies or instrumentalities
of

the

State

Kirtley,
only

and

subject

to

326 F. 3d at 1093

upon

a

showing

its

constitutional

(citation omitted).

that

the

function

hospital and its employees,

This test is met

at

traditionally and exclusively governmental."

limitations."

issue

Id.

is

"both

Here, a private

as well as a physician who provides

services to that hospital on a contract basis, function to provide
medical assistance to the adjoining community.
not cited to,
holds

The parties have

and the Court is not aware of, any authority that

that

this

function

is

traditionally

or

exclusively

governmental; SCMC's designation as a "facility" within the meaning
of Or.

Rev.

Stat.

42 6. 005 (d) ,

§

and plaintiff's placement on a

mental health hold pursuant to Oregon law, does not alter the fact
that providing medical treatment is not solely the responsibility
of the government.

See Chasse v. Humphreys, 2009 WL 3334912, *5-6

(D.Or. Oct. 13, 2009)

(provision of emergency medical services by

a private company and its medical staff pursuant to Oregon law was
neither a traditionally nor exclusively governmental function); see
also Schneck v. Yamamoto,
2011),

aff'd,

475

2011 WL 4595013,

Fed.Appx.

256

(9th

*2

Cir.

(E.D.Cal.
2012)

Feb. 24,

(non-profit

hospital that provided public services was performing a government
function)

( citations omitted) .

Page 52 - OPINION AND ORDER

Accordingly, the public function

test has no application in this case.
ii.

Joint Action Test

Under the joint action test, the court examines whether "the
state

has

so

far

insinuated

itself

into

a

position

of

interdependence with the private entity that it must be recognized
as a joint participant in the challenged activity."
F.3d at 1093 (citation omitted).
state

the

knowingly

accepts

unconstitutional behavior."
Although

defendants

Id.
are

Kirtley, 326

As such, this test is met "when
benefits

the

derived

from

( citation omitted) .
subject

to

qualification

and

regulation by the state, "the mere fact that a business is subject
to state regulation does not by itself convert its action into that
of the State for purposes of the Fourteenth Amendment."
v.

Yaretsky,

457 U.S.

991,

1004

See Blum

That police can bring

(1982).

those in need of immediate treatment to SCMC pursuant to Or. Rev.
Stat.

§

426.228 also does not by itself convert defendants' action

into that of the state.
2966913, *3-4

See Nash v. Lewis

(D.Or. Dec. 21, 2004).

("Nash II") ,

2 00 4 WL

Here, the intended benefits

of a private hospital flow directly to those in need of medical
treatment, in whose interests doctors and medical staff must act;
in other words, because the state does not intrude upon defendants'
professional decision-making, there can be no state action.
~'

See,

Chasse, 2009 WL 3334912 at *6-12 (no state action under the

joint action or nexus test where emergency medical services were
rendered by

a

private

company and

Page 53 - OPINION AND ORDER

its

staff,

even where

that

company was heavily regulated by Oregon law, distinguishing Jensen
v. Lane Cnty., 222 F.3d 570 (9th Cir. 2000); Polk Cnty. v. Dodson,
454 U.S. 312 (1981); and Blum, 457 U.S. 991); see also Parks Sch.
of Bus., Inc. v. Symington, 51 F.3d 1480, 1486 (9th Cir. 1995)

(no

joint action exists where "benefits of [state-law designated loan
guarantor]
even

flow directly to students,

while

Therefore,

"in

a

broad

sense"

not to the state itself,"

conferring

public

benefits).

defendants were not acting under color of state law

pursuant to this test.
iii. Compulsion Test
The compulsion test examines whether "the coercive influence
or significant encouragement of the state effectively converts a
private action into a government action."

Kirtley,

1094 (citation and internal quotations omitted).
hospitals,

and

medical

exercising obligations
medical care.

staff
that

act

are,

Doctors, private

independently
by

law,

to

326 F.3d at

of

those

the
in

state,
need of

Thus, it does not follow that defendants here are

under such government compulsion solely by virtue of the state's
qualification and regulation requirements to conclude that they
were acting on behalf of the state.
iv.

Nexus Test

"Arguably the most vague of the four approaches,

the nexus

test asks whether there is a such a close nexus between the State
and the challenged action that the seemingly private behavior may
be fairly treated as that of the State itself."
Page 54 - OPINION AND ORDER

Id.

at 1094-95

(citation and internal quotations omitted).

As discussed above,

there are significant links between defendants' positions and the
government.
part,

As plaintiff points out, defendants are regulated, in

by the government and are qualified to receive and treat

mentally ill patients pursuant to Oregon law.

In addition, Oregon

law

state

authorizes

police

officers,

who

are

actors,

to

participate in the identification and transportation of those in
need of mental health services.
Nonetheless,

the

individually

named

defendants

are

not

appointed or paid by the state, and SCMC is neither created nor
compensated by the state.

More importantly,

the state does not

direct a specific outcome in regard to the medical care defendants
provide;

rather,

discretion.

those

lie

within

defendants'

sole

While they are required to report to the state under

certain circumstances,
Further,

decisions

defendants do so as independent parties.

the police neither participated in plaintiff's medical

care nor in the development or implementation of SCMC's polices.
As such, there is no evidence that the state has so far insinuated
itself into a position of interdependence with defendants that it
could be considered a joint participant in the challenged conduct.
Thus, while the provision of medical services to the mentally
ill can satisfy the above-listed tests, on the record before the
Court,

the actions of defendants in this case cannot be fairly

attributed to the state.

See Nash II, 2004 WL 2966913 at *2-4 (ED

doctor who worked at private hospital and who initiated involuntary
Page 55 - OPINION AND ORDER

civil commitment proceedings, without first examining plaintiff or
consulting a second physician, as required by Oregon law, and based
on false statements from the police officers who placed plaintiff
in custody, was not acting under color of state law, distinguishing
Jensen, 222 F.3d 570); see also Chasse, 2009 WL 3334912 at *6-12;
Dark v. MacDonald, 2005 WL 906487, *3 (D.Or. Apr. 15, 2005); Sturm
v. El Camino Hosp., 2010 WL 725563, *2-5 (N.D.Cal. Feb. 26, 2010);
Pino v. Higgs, 75 F.3d 1461, 1465-67 (lOth Cir. 1996).
Therefore,

SCMC,

Palmer,

Timms,

Ryan,

Violet,

Huffman,

Lancaster, McBride, Beutler, and Nelson were not acting under color
of state law.
C.

Accordingly, defendants' motions are granted.

Fourth Amendment Claim Against the City,

Namanny,

and

Macdonnell
Plaintiff
Officers

asserts

violated

unlawful

and

that

Plaintiff's

unreasonable

the

"individual

Fourth
search

Defendant

Amendment
and

rights

seizures

participated in physically restraining" her.

TAC

<JI

Police
against

when
74.

they
It is

undisputed that there is a federally recognized liberty interest to
be free from unreasonable searches and seizures under the Fourth
Amendment.
2007),

See Crater v. Galaza,

cert. denied,

nature of this right)

554 U.S.

922

508 F.3d 1261,
(2008)

1269

(9th Cir.

(noting the fundamental

Nevertheless, for the reasons discussed in

section III(A), plaintiff's Fourth Amendment claim against the City
fails.

Accordingly, the City's motion is granted in this regard

and plaintiff's motion is denied.
Page 56 - OPINION AND ORDER

CONCLUSION

Palmer's motions for
GRANTED.

In addition,

125)

is GRANTED.

128)

is

summary

also

(docs.

7 5,

132)

are

COEP' s motion for summary judgment

(doc.

The City's motion for summary judgement

(doc.

GRANTED.

judgment

summary judgment

(doc.

Further,

SCMC's

135)

GRANTED.

is

and Timms'
Ryan's,

motion

for

Violet's,

Huffman's, Lancaster's, Mcbride's, Beutler's, and Nelson's motion
for summary judgment (doc. 168) is GRANTED as well.
plaintiff's partial motions for summary judgment

Conversely,

(docs. 58, 120)

are DENIED.

The parties' requests for oral argument are DENIED as

unnecessary.

Accordingly, plaintiff's claims against COEP, Palmer,

SCMC, Timms, Ryan, Violet, Huffman, Lancaster, Mcbride, Beutler,
Nelson,

the Bend Police Department,

and the City are DISMISSED.

The only remaining claims are those asserted against Namanny and
Macdonnell.
IT IS SO
Dated

ORDE~~

this~&k)-of

March 2013.

Ann Aiken
United States District Judge

Page 57 - OPINION AND ORDER