Cooper v. City of Cottage Grove et al

Filing 45

ORDER: Denying Motion for Summary Judgment 17 . Signed on 8/21/2014 by Magistrate Judge Thomas M. Coffin. (plb)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION
WENDY COOPER, PERSONAL
REPRESENTATIVE OF THE ESTATE OF
NATHAN S. COOPER, DECEASED
Plaintiff,

6: 13-CV-0551-TC

ORDER

v.
THE CITY OF COTTAGE GROVE, et. a!,
Defendants.
COFFIN, Magistrate Judge:
Introduction
This is an action brought by the Estate of Nathan S. Cooper and his mother, Wendy Cooper,
pursuant to 42 U.S. C. §1983 for the death ofNathan Scott Cooper while he was in the custody of
the Cottage Grove Municipal Jail on May 5, 2012. Named as defendants are the City of Cottage
Grove and eight officers of the Cottage Grove Police Department (Chief Michael Grover,
Commander Scott Shepherd, Officer Carlos Jones, Corporal John Woodke, Commander Dean
Finnert)i, Commander Comad Gagner, Officer Tami Howell, and Officer Janod Butler). Presently
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before the court is a motion for summary judgment brought on behalf of all the defendants.

Legal Standard
Federal Rule of Civil Procedure 56 allows the granting of summaty judgment:
if the pleadings, the discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and that the movant is
entitled to judgment as a matter oflaw.
Fed. R. Civ. P. 56(c). There must be no genuine issue of material fact. Anderson v. Libertv Lobby,
Inc., 477 U.S. 242, 247-48 (1986).
The movant has the initial burden of establishing that no genuine issue of material fact exists
or that a material fact essential to the nonmovant's claim is missing. Celotex Com. v. Catrett, 477
U.S. 317, 322-24 (I 986). Once the movant has met its burden, the burden shifts to the nonmovant
to produce specific evidence to establish a genuine issue of material fact or to establish the existence
of all facts material to the claim. hl,; see also, Bhan v. NME Hosp., Inc., 929 F.2d 1404, 1409 (9th
Cir. 1991); Nissan Fire & Marine Ins. Co., Ltd., v. Fritz Cos., Inc., 210 F.3d 1099, 1105 (9th Cir.
2000). In order to meet this burden, the nomnovant "may not rely merely on allegations or denials
in its own pleading," but must instead "set out specific facts showing a genuine issue of fact for
trial." Fed. R. Civ. P. 56(e).
Material facts which preclude entry of summary judgment are those which, under applicable
substantive law, may affect the outcome of the case. Anderson, 477 U.S. at 248. Factual disputes
are genuine if they "properly can be resolved only by a finder of fact because they may reasonably
be resolved in favor of either party." Id. On the other hand, it: after the comi has drawn all
reasonable inferences in favor of the nonmovant, "the evidence is merely

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col~rable,

or is not

significantly probative," summmy judgment may be granted. Id.
As noted, the court must draw all reasonable inferences in favor of the nonmovant (i.e., plaintiff)
in determining whether summmy judgment is appropriate under the circumstances or whether a jury
trial is necessary to resolve material issues of fact.

Statement of Facts
1. Cottage Grove Jail Background
The Cottage Grove municipal jail is located in the basement of the building which houses the
Cottage Grove Police Department and the City's municipal courtroom. Chief Grover is responsible
for the jail budget, approving policies and procedures, and is ultimately responsible for the inmates
lodged therein and their care. Commander Shepherd is responsible for the operation of the jail. The
jail does not have dedicated staffwhose responsibilities lie completely within the jail. Instead, patrol
officers and investigators are responsible for the jail's daily operation, with officers conducting jail
checks approximately once per hour during their shifts. The jail has eight cells, which can hold up
to 16 inmates, and is separated from the Police Depmtment and Dispatch Center by a flight of stairs
and a locking door. In addition to the hourly checks by officers on the inmates, the cells are
monitored by cameras and microphones which allow the on-duty dispatcher to see, hear, and speak
with inmates. The Dispatch Center and Police Department are staffed around the clock.
Because of its small size, the jail does not have medical personnel on staff and does not directly
provide medical services to inmates.

During the booking process officers perf01m a visual

inspection of each inmate for signs of obvious sickness or injmy and ask a series of health questions.
If an inmate appears in need of medical attention, policy calls for the police to choose one of three

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options : 1) call fire department paramedics (EMTs) to the jail to assess the inmate; 2) take the
inmate to the local hospital emergency room; or 3) grant the inmate a medical furlough (release from
custody) to allow the inmate an oppmiunity to seek medical care on his/her own.

2.

Events Surrounding the Death of Nathan Cooper
On April26, 2012, Nathan Cooper was sentenced to serve a sentence often days in the Cottage

Grove Municipal Jail for a drug-related crime.
On the evening of April 27, 2012, Cooper was vomiting uncontrollably and exhibited a
diminished level of consciousness. Officer Howell summoned South Lane County Fire and Rescue
EMTs to the jail to evaluate Cooper. A paramedic concluded that he was suffering withdrawals from
methadone addiction, and offered to transport him to the local hospital for further evaluation, but
Cooper declined. The paramedic estimated Cooper's weight at the time to be 80 kilograms, or 176
pounds. (This is significant, because at the time of Cooper's death early in the moming of May 5,
2012, his weight was 120 pounds.) After the EMTs left the jail, Howell informed Commander
Shepherd of the situation and he authorized her to release Cooper on a medical furlough to give him
an opportunity to seek medical care. Upon his release, he was told to return to the jail on the
morning of April29, 2012 to resume serving his sentence.
Cooper failed to seek medical care on furlough, nor did he voluntarily retum to jail. After police
obtained a warrant and located Cooper on April30, they discovered him with another addict and in
possession ofheroin, syringes, and drug paraphernalia. In shoti, he used the furlough to inject drugs,
not see a doctor.
On May 1, after being reincarcerated at the jail, Cooper again began vomiting and exhibiting
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withdrawal symptoms. At approximately 10 A.M., EMTs were again summoned to the jail, and
determined that Cooper was withdrawing from heroin and meth. According to defendants, Cooper
declined an offer by EMTs to transport him to the hospital for fmiher evaluation. 1 A paramedic
recommended that officers ensure that Cooper stay well hydrated while going through withdrawals.
The officers thereafter provided Cooper with bottles of Gatorade, but the evidence does not reveal
that any of the officers monitored or verified his actual fluid intake. The paramedic instructed
officers to monitor Cooper and transport him to the hospital for evaluation ifhis symptoms persisted.
Some 10 hours later, (7:47P.M.), Cooper complained of stomach pains to Officer Woodke and
expressly requested medical attention. Woodke summoned EMTs, but the call was canceled before
they anived because Woodke was told by Of1icer Skaggs that EMTs had evaluated Cooper earlier
that day and left instmctions to simply give him Gatorade.
The next moming (May 2nd) at approximately 5:30 A.M., Officer Gagner and Jones conducted a
jail check. At that time, Cooper asked Gagner what it meant when "you puke up blood." Gagner
understood from the question that Cooper had in fact puked up blood, and responded that it usually
meant that the throat was initated from coughing or vomiting. Gagner never made a note of this
conversation nor did he relate this conversation to anyone until after Cooper's death.
At approximately 8:45 A.M. that moming, commander Shepherd called Cottage Grove
Community Hospital and spoke with an Emergency Depmiment nurse about Cooper, asking her
"how long the severe DT (delirium tremors) are gonna go on " and at one point telling her that he
"just (didn't) want him to die on me." The nurse commented that "people don't generally die from

1

This is disputed, however, as there is no documentation supporting the refusal (e. g., a
completed Refusal ofTransp01i f01m).
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[heroin withdrawals] but they do feel pretty bad," and recommended that Shepherd continue to
provide Gatorade for hydration.
The next morning, May 3'd, Cooper was due in court for a hearing regarding his failure to return
tl·om furlough. Because Cooper was too sick to ascend the stairs and attend the hearing in the
courtroom, the judge, city attorney, and court clerk went down to his cell for the proceedings. 2
Notwithstanding the paramedic's instructions two days earlier that Cooper should be taken to the
hospital for evaluation if his symptoms persisted, his condition had worsened but no medical
evaluation was provided.
At 4:16A.M. on Saturday, May5'\ Officer Jarrod Butler found Cooper dead in his cell. Oregon
State Medical Examiner Dr. Daniel Davis conducted an autopsy on May 7, 2012 and concluded that
Cooper died from aspiration pneumonia, which is a serious and documented complication of opiate
withdrawal that is readily treatable with timely medical intervention. 3 He noted in his report that
"both lungs demonstrate an advanced bacterial process productive of thick, yellow pus." Dr. Davis'
report also describes the cell in which Cooper's body was found as containing "two pmiially
consumed bottles of Gatorade" and a plastic tray of uneaten breakfast food" and that "the toilet
contained dark, rusty colored urine." Dr. Michael Miller, plaintiffs medical expert, states that such
urine is consistent with significant dehydration, and also opines that protracted vomiting, diarrhea,

'It does not appear that Cooper was represented by counsel at the hearing, at which he
was sentenced to an additional four days in jail for his failure to voluntarily return after his
release on medical furlough. It should be noted that his couti appearance record reflects his
height at 6 foot 1 inch and his weight at 180 pounds.
3

The Mayo Clinic website informs that aspiration pneumonia occurs when you inhale
food, drink, vomit , or saliva into your lungs. It fmiher lists antibiotics as a treatment option for
bacterial pneumonia.
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and dehydration were contributing factors to his death. It was noted in the autopsy report that
Cooper weighed "an estimated 120 pounds."
Legal Analysis

The contours of the constitutional right at issue in this case are well -defined and clear.
Prison officials violate the Eighth Amendment if they are "deliberate[ly] indifferen[t] to [a]
prisoner's' serious medical needs." Esteller v: Gamble, 429 U.S. 97, 104 (1976). A medical need
is serious if failure to treat it will result in "significant injury or the unnecessary and wanton
infliction of pain." Jett v. Penner, 439 F. 3d 1091, 1096 (9'h Cir. 2006) (quoting McGuckin v. Smith,
974 F.2d 1050,1059 (9'h Cir. 1997) ovenuled on other grounds by W1Y1X Techs, Inc. V. Miller, (en
bane)). A prison official is deliberately indifferent to that need if he "knows of and disregards an
excessive risk to inmate health." Farmer v. Brennan, 511 U.S. 825, 837 (1994). To be liable, "the
official must both be aware of facts from which the inference could be drawn that a substantial risk
of serious harm exists, and he must also draw that inference." Fatmer, 511 U.S. at 837. Even if a
prison official should have been aware of the risk, if he "was not, then [he] has not violated the
Eighth Amendment, no matter how severe the risk. Gibson v. County ofWashoe,290 F.3d 1175,
1188 (9'h Cir. 2002). "Mere negligence in diagnosing or treating a medical condition, without more,
does not violate a prisoner's Eighth Amendment rights." Toguchi v. Chung, 391 f.3d 1051, 1057
(9'h Cir. 2004).
In essence, the individual defendants seek summary judgment on the basis that "[n]o defendant

had any knowledge of plaintiffs serious medical need." Rather, "(t]hey all believed that Mr. Cooper
was suffering from narcotic withdrawals which, while uncomfortable, are not fatal." Defendant City
seeks summmy judgment on the basis that "absent a constitutional violation by a municipal

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employee, there can be no municipal liability under§ 1983. "It thus argues that since no individual
detendant was deliberately indifferent to any serious medical need of the decedent, the City cannot
be constitutionally liable as a matter oflaw.
Notwithstanding the individual defendants' asse1iions that they were unaware that Cooper had
a serious medical need and thus were not deliberately indifferent in failing to seek appropriate
medical care for him, there is sufficient evidence in the record from which a jury could reject their
accounts and draw a contrary inference as to each of them.
Before elaborating on each defendant's conduct in the case, it is helpful to set forth a succinct
overview of the evidence (in the light most favorable to the plaintiff, as required by the standards for
summmy judgment as applied to this case).
Shortly after being incarcerated at the Cottage Grove jail, Nathan Cooper began vomiting
frequently and uncontrollably. He weighed approximately 176- 180 pounds on April 27, 2012
when EMTs first were called to evaluate him. Because ofhis condition, he was released on medical
furlough to obtain medical treatment on his own. Instead, he used the opportunity to inject drugs.
He was re-anested and returned to jail. His vomiting continued unabated. Medics were again
summoned, and evaluated Cooper as suffering from withdrawal and recommended that officers
ensure he stayed well hydrated, and that he be taken to the hospital if his symptoms persisted.
Cooper was thereafter provided with Gatorade, but his intake was never monitored. Ten hours after
the second EMT response, Cooper complained of stomach pains and expressly requested medical
attention. Paramedics were summoned but called off en route because such would have been the
second visit that day. His request for medical attention was ignored. The next moming, Cooper
informed an officer that he had been vomiting blood. The officer did not report this infonnation to
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anyone. There is evidence that , had EMTs been infmmed of this development, they would have
transported him to the hospital for evaluation. On May 5, 2012, Cooper died, having never been
seen or evaluated by a medical professional. He weighed 120 pounds at death, a loss of almost 60
pounds in 9 days (April27-May5). He died of aspiration pneumonia, an easily treatable condition
if diagnosed. Other factors that contributed to Cooper's death included protracted vomiting,
diarr-hea, and dehydration.
I will now summarize the evidence pertaining to the individual defendants as well as the City and
its policies and customs.
Officer Gagner
Gagner perfmmed at least ten jail checks on May 1, 2012 and May 2, 2012 while Cooper was
in custody. Gagner knew that Cooper was vomiting up blood but did nothing in response , and did
not alert anyone to these symptoms until after Cooper died. While Gagner testified that he was not
alarmed by this, a jury could infer that vomiting blood demonstrates an obvious serious medical
need. Gagner also knew that Cooper was vomiting a lot and that he had been previously fi.!rloughed
for medical reasons.
Officer Finnerty
Finnerty performed at least twenty-four jail checks on Cooper between April26, 2012 and the
aftemoon of May 4, 2012. He was aware that Cooper was "always really sick," and didn't want to
eat anything," but concluded that Cooper was a "heroin addict who was sick" and that withdrawals
did not merit medical attention. When Finnerty conducted his last jail check on Cooper, he would
have weighed approximately 120 pounds, a weight loss of almost 60 pounds since he was booked
into jail. Nonetheless, Finnerty never sought a medical evaluation for Cooper.

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Officer Jones
Jones performed at least fifteen jail checks on Cooper between April 30, 2012 and his death on
May 5, 2012. Jones knew Cooper had been evaluated by EMTs and that dehydration was a concern
for Cooper. Jones was present with Officer Gagner when Cooper complained of"puking blood."
and a jury could infer that he overheard the conversation.

Jones acknowledged that in one jail

check he performed included in video footage, he spent only one second in front of Cooper's cell,
despite the dark nighttime conditions of the cell and despite the fact that he knew Cooper was
exhibiting symptoms of withdrawals, and ill enough to require a special diet and medical attention
earlier in the week. The jury may infer that other jail checks by Jones were similarly brief.
Officer Howell
Howell performed at least twelve jail checks between April26, 2012 and the evening of May 4,
2012 while Cooper was in custody. Howell knew Cooper was suffering from heroin withdrawals
and facilitated his medical furlough on April 27, 2012. At the time, she relayed to dispatch that he
was vomiting uncontrollably and had a diminished level of consciousness, yet her jail shift log ently
indicates that she considered everything to be okay "C4."4 Despite Cooper's significant weight loss
in an eight day period, Howell noted "C4" on no less than twelve jail shift log entries, the last of
which was the night before Cooper's death.
Officer Butler
Butler perfmmed at least thi!ieen jail checks between April26, 2012 and Cooper's death on May
5, 2012. Butler was aware Cooper was going through withdrawals, was seen by EMTs and required

4

"C4" or "Code 4" was shorthand for "all inmates are okay. Not in any duress. No need
for any fu1iher attention."
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additional hydration. Butler similarly noted "C4" throughout all his jail checks on Cooper, despite
his deteriorating condition.
Officer Woodke
Woodke performed at least ten jail checks while Cooper was in custody between April 30, 2012
and May 4, 2012, noting nothing out of the ordinaty in his jail shift log entries. During one of these
checks, Cooper requested medical care, however Woodke ultimately denied his request. Woodke
knew Cooper had been furloughed, was in pain, was suffering fi·om withdrawal symptoms including
dehydration and vomiting, was thin and unkempt, and needed to remain hydrated. Yet Woodke
denied Cooper's express request for medical care.
Commander Shepherd
Shepherd knew Cooper was ill throughout his time in custody. Concerned about Cooper's
health, he spoke over the phone with a nurse at the hospital. He summarized his level of concern
in his telephone call as "I just don't want him to die on me." Instead oftranspmiing Cooper to the
hospital, he had Cooper evaluated by EMTs and authorized his release on medical furlough. When
Cooper failed to seek medical care while on furlough and instead injected drugs during his release,
Shepherd still failed to obtain medical care on his behalf.

Shepherd is in charge of the day to day

operations of the jail. He did not provide additional monitoring for Cooper, and ultimately
implemented and enforced the depatiment wide practices that a jmy could find led to Cooper's
death.
Chief Grover
"A supervisor may be liable for an Eighth Amendment violation if he or she was made aware of
the problem and failed to act or he or she promulgated or enforced a policy under which the

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unconstitutional practices occmTed." Valley v. Director of Prisons, 2008 WL 436954 at p. 5 (E.D.
Cal2008); Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996).
As Chief, Grover is responsible for the jail budget and approves policies and procedures. The
budget for the entire operation ofthe jail was $25,7 50 per year at the time of Cooper's incarceration.
As a matter of policy or practice, officers had three options for ill inmates -take them to the hospital,
call paramedics for evaluation, or release them on medical furlough. A jury could rationally infer
that budget concerns were a priority and that cost savings were a critical factor in the decisions not
to seek medical intervention for Cooper. The essential function of EMTs is to stabilize an ill or
injured person for transport to the emergency room, not to provide medical diagnosis or treatment.
They are not the equivalent of a physician or other medical professional. A medical fi.Jrlough does
no good if the inmate does not seek medical treatment while on release. In this case, there does not
appear to have been any follow -up, or any policy in place requiring follow-up, by the officers to
detetmine whether Cooper in fact sought medical care while on furlough. A jury could infer that a
medical furlough was simply (and wrongly) viewed as a substitute for the City's responsibility to
provide, at its expense, medical care to an inmate with serious medical needs.

The City of Cottage Grove
As set forth above, there is enough evidence in the record from which a jury could conclude that
one or more of the individual officers of CGPD are individually liable for the violation of Cooper's
Constitutional right to adequate medical care for a serious medical need while he was incarcerated
at the Municipal Jail. However, even were a jmy to find otherwise and return a verdict in favor of
all the individual defendants, the comt disagrees with the City's argument that it could not be held

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liable under § 1983 under those circumstances. It has been held that "situations may arise where the
combined actions of multiple ot1icials or employees may give rise to a constitutional violation
suppmting municipal liability, but where no one individual's actions are sufficient to establish
personal liability for the violation." Speer v. Glover, 276 F.3d 980, 986 (8'h Cir. 2002) (emphasis
supplied).
The Ninth Circuit CoUli of Appeals has stated:
a plaintiff can demonstrate that a municipality is responsible for a
constitutional tort committed by its employee, even though it did not
direct the employee to commit the tort.
A plaintiff need not allege that the municipality itself violated its
constitutional rights or directed its employees to do so. Instead, a
plaintiff can allege that through its omissions the municipality is
responsible for a constitutional violation committed by one of its
employees, even though the municipality's policies were facially
constitutional, the municipality did not direct the employee to take the
unconstitutional action, and the municipality did not have the state of
mind required to prove the underlying violation ... However, because
Monell held that a municipality may not be held liable under a theory
of respondeat superior, a plaintiff must show that the municipality's
deliberate indifference led to its omission and that the omission
caused the employee to commit the constitutional violation.... To
prove deliberate indifference, the plaintiff must show that the
municipality was on actual or constructive notice that its omission
would likely result in a constitutional violation ...
To impose liability under Canton[489 U.S. 378 (1989)], a plaintiff
must show 1) that a County employee violated [plaintiti' s] rights; 2)
that the County has customs or policies that amount to deliberate
indifference ... ; and 3) that these policies were the moving force
behind the employee's violation of[plaintiffs] constitutional rights,
in the sense that the County could have prevented the violation with
an appropriate policy.

A local govemment body may be liable if it has a policy of inaction
and such inaction amounts to a failure to protect constitutional rights.

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A jury may infer that a municipality made such a deliberate choice
when a municipal actor disregarded a known or obvious consequence
of his action. Whether a local govemment has displayed a policy of
deliberate indifference to the constitutional rights of its citizens is
generally a jury question.

Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1186-1195 (9'h Cir. 2002)(some citations and
quotations omitted).
The events that unfolded in this case, coupled with the backdrop of the City's policies, practices,
and procedures , could support a finding of liability against the City even if the jury concludes that
no individual officer was "deliberately indifferent" to a serious medical need of Cooper.
In that regard, the declaration of James Sida, plaintiffs expert related to correction practices,
cites some of the evidence on which a jury could base a finding of liability against the City,
including:
The annual operation budget for the jail ($25,750) which covers everything associated with its
operation, including medical expenses for inmates, which he describes as inadequate even for a small
facility.
The absence of an officer at all times at the jail when inmates are housed therein who is trained
in accordance with Depatiment ofPublic Safety Standards and Training- Basic Conections Officer
Training.
The lack of a systemic method of logging vital information about health of inmates.
The lack of continuity of flow of inf01mation between officers tasked with the day to day
operations of the jail, pmiicularly those related to medical problems.
The absence of a full-time person working within the jail to monitor the jail's functions and

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supervise the care of inmates.
A jury could find that some of these asserted deficiencies dovetailed with the failures that
contributed to Cooper's death. For example, although EMTs instmcted officers to ensure Cooper
was hydrated, no one logged his fluid intake and no one was tasked with reviewing such logs to
ensure adequate hydration. Another example is Gagner's failure to log or communicate to other
officers performing jail functions information about Cooper vomiting blood. There is no evidence
in the record that anyone logged or communicated any information regarding Cooper's dramatic
weight loss over just nine days at the jail. In addition, a jmy could find that the lack of a full time
employee at the jail to supervise and monitor inmates contributed to Cooper's death as he steadily
deteriorated while incarcerated without any one individual monitoring, taking responsibility for, or
otherwise taking ownership for his care and medical needs. A jmy could also find that the City
prioritized costs concerns to a degree that its officers were collectively indifierent to Cooper's
deteriorating medical condition and serious needs.

Conclusion

As discussed above, there are material factual issues present that must be resolved by a jmy and
which preclude summary judgment for defendants. The plaintiff is not bound by the asse1iions of
the defendants that in their view the decedent was not suffering from a serious medical need that
mandated professional medical evaluation and treatment under the standards applicable pursuant to
the Eighth Amendment of the Constitution, and is entitled to probe those asse1iions before a jury
under the facts and circumstances of this case. There are times when it is preferable to proceed to
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a full trial on the claims because such will develop a more complete record which will provide a
more substantial basis for decision. 5 See Anderson v. Liberty Lobby, Inc,, 477 U.S. 242, 25~
(1986); Anderson v. Hodel, 899 F.2d 766,770-771 (9'h Cir. 1990).
Defendants' motion (#17) for summmy judgment is denied.

DATED this

5

l.{

day of August, 2014 .

For example, there is nothing in the record before the court that addresses the symptoms
that would have likely been exhibited by Cooper before his death given the advanced bacterial
pleuritic process in his lungs noted by Dr. Davis in his autopsy repoti. A trial will provide an
opp01iunity to fully explore this and other pertinent issues. In examining the record before me, I
note that the jail log for the evening and moming hours immediately preceding his death
consistently reflect "C4" entries by the officers in connection with their inmate checks.
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