Green v. Corizon Health, Inc. et al

Filing 109

ORDER: Granting in Part Denying in Part Motion for Summary Judgment 69 . Signed on 4/6/2015 by Magistrate Judge Thomas M. Coffin. (plb)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DEREK JOHNSON, personal representative of
KELLY CONRAD GREEN II, deceased;
KELJ_,Y CONRAD GREEN and SANDY
PULVER,

6: 13-cv-1855-TC

ORDER

Plaintiffs,

v.
CORIZON HEALTH, INC., a Tennessee
Corporation; LANE COUNTY, an Oregon
county; DR. CARL KELDIE, an individual;
DR. JUSTIN MONTOYA, an individual;
VICKI THOMAS, an individual; KIRSTIN
WHITE, an individual;; SHARON
EPPERSON (nee FAGAN), an individual, and
JACOB PLEICH, an individual,
Defendants.
COFFIN, Magistrate Judge:
Lane County deputies booked Kelly Green into custody on February 11, 2013, when he
allegedly exhibited symptoms of sever mental illness. Plaintiffs allege he was not examined or
medically screened. On February 12, during a court appearance at about 10:42 a.m., Green ran
headfirst into a concrete wall fracturing his neck. Green asserted he could not move. Defendant

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Lane County and its contracted medical services provider, defendant Corizon Health, Inc. allegedly
failed to perform a reasonably necessary medical examination or transport Green to a hospital.
Defendants allegedly transported Green back to his cell, without taking measures to stabilize his
neck or spine. Defendants left Green incontinent and unmoving in his cell until about 4:30p.m.,
when he was finally transported to a hospital. Green's injuries left him a quadriplegic.
Green brought this action through a guardian ad litem alleging violation of his civil rights.
After filing this action, Green passed away due to complications from his injuries and the case is now
maintained by his personal representative.
Defendants Corizon, Dr. Carl Keldie, Dr. Justin Montoya, Vicki Thomas, Kirstin White,
Sharon Epperson, and Jacob Pleich (the Corizon defendants) move for partial summary judgment.

BACKGROUND
The parties version of events substantially differ, but viewing the facts in a light most
favorable to plaintiffs, the court, for the most part, declines to grant summary judgment.
Kelly Green suffered from paranoid schizophrenia long before his arrest. Several months
prior to the arrest, Green was admitted to a mental health facility where he expressed plans to kill
himselfby breaking his neck. In addition, about two months prior to the arrest at issue, on December
19,2012, Eugene police arrested Green and lodged him at Lane County Jail. Corizon conducted an
"Intake Receiving and Screening" the following morning noting history of mental illness with
schizophrenia, but that intake was "not complete due to [his] mental condition." Several days later,
Green's grandmother called the jail and informed reception that Green is schizophrenic. During the
next several days, Green was disruptive, violent, conversing out loud with himself, and engaged in

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tirades. Lane County released Green on January 10, 2013.
On February 11, 2013, after receiving calls of Green acting strangely and talking about
suicide, Eugene police again arrested Green on a warrant related to the December arrest. The
arresting officer noted that Green talked about killing himself, but said he was too important to
actually do it. The officer brought Green to Lane County Jail. The booking form indicates that
Green may be suicidal and was paranoid schizophrenic. The initial assessment form relates that
Green may be bipolar/schizophrenic, that he was not making sense, was very agitated, and talks to
himself. The assessment, completed on a computer, indicates that medical was contacted.
The booking officer, Keri Nelson, noted that Green was barely able to make it through the
booking process. In addition, Nelson states that the above assessment form went immediately to
medical staff (Corizon) for review. According toN elson, the Corizon staffed medical office is about
30 feet down the hall from booking. According to Corizon, its policy is to have medical personnel
available 24 hours a day to provide health screening including mental health screening.
Although there is deposition evidence from the Corizon defendants and County defendants
that it was anticipated that County deputies would perform an initial assessment of an arrestee's
physical and mental health at booking and that Corizon would screen inmates prior to "housing," the
contract between Lane County and Corizon states that
Contractor's licensed registered nurse or other appropriate personnel must perform
a medical intake screening on incoming Inmates upon admission to the Jail In
accordance with the established rejection criteria mutually approved by the
Contractor and the County. Individuals brought into the Jail to be placed in custody
who have a questionable or unstable medical condition must be medically cleared by
Contractor's registered nurse, licensed mid-level professional or physician prior to
booking. If the County rejects taking the individual into custody at the Jail based on
Contractor's intake screening, the arresting agency will be responsible for
transportation and medical clearance prior to being accepted. The Contractor will not
be responsible for medical care or treatment of an incoming inmate after the County

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has rejected taking the individual into custody at the Jail. The Contractor is
responsible for medical care or treatment upon completion of the booking process
and physical commitment of the inmate into custody of the Jail. Contractor's
screening must identify those individuals with medical conditions, mental disorders,
inmates in need of segregation or close supervision, and those with suicidal
tendencies. Contractor is responsible for screening incoming inmates into the Jail and
for medical care and treatment once the inmate is booked into the facility.
Personal Services Contract (attached as Exhibit 48 to the Declaration of John T. Devlin (#91-48))
at p. 2 (emphasis added). Moreover, as noted above, Nelson states that Corizon was notified that
a bipolar/schizophrenic who was not making sense, was very agitated, and talking to himself was
in intake. 1
The court arraigned Green the following morning, February 13, 2013, at about 10:43 a.m.
and informed Green that he would be held for a couple days. Green then ran about eight to 15 feet,
lowered his head and rammed a cinder block wall. Corizon medical staff, including physician's
assistant defendant Kirstin White, registered nurse defendant Sharon Epperson, and licensed
practical nurse Jona Bougard, responded.
The Corizon responders were told that Green ran into the wall and cut his head. The
laceration to his head was substantial and he was bleeding profusely. White asserts that she
conducted a comprehensive neurological exam:

Q..... But is the first thing that you did physically the cervical check?
A. Yes.

Q. After you completed the cervical check, what was the next thing that you did?
A. Started a neuro - neuro exam. I had someone put pressure on the lacerations, did
a scalp check making sure I didn't feel any major, you know, skull fractures. Checked

1

Corizon denies notice, but that does not negate an issue of fact as to notice.

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his face. Did a neuro exam.

Q. You've got to go real slow. How did you check his face?
A. Pushed around all the bony -- you know, make sure he didn't have any injuries.
There was blood everywhere, and I just needed to make sure that it was coming from
here. Looked in his ears to make sure there was no blood coming from his ears.
Q. How did you look into his ears?
A. With an otoscope.

Q. Did you turn his head or did you get on either side?
A. I got on either side of him.

Q. And you said a neuro exam. Explain that to me, please.
A. I went down from head to toe. You know, "Kelly, can you squeeze--" you know,
I gave him two of my fingers "-- can you squeeze my fingers?" He could do it.
"Kelly, can you feel this," as I'm kind of-- not pinching but-- you know, "Does this
feel the same as this? Can you feel this? Kelly, can you put your hand? Pretend like
you are going to give me five. Can you push against me?" He could follow all the
directions. He had full strength pushing, pulling. There were no obvious-- there was
no obvious trauma to any ofhis limbs.
I went down -- down his legs. He could push against resistance with his feet.
He could pull his toes towards his nose. Ikind of tickled the back ofhis legs and his
ankles. He could feel that. At one point I had to ask him to hold still. He wanted to
put his leg up and cross it. And I said, "Mr. Green, I need you to -- you know, I need
you to follow directions. I need you to put your feet down so I can examine you." He
was able to move all his toes.

Q. Did you do any reflex tests?
A. Yes.

Q. Tell me what reflex tests you did.
A. I just did the deep tendon reflex on the patellar.

Q. How did you do that?
A. With my stethoscope.

Q. Explain to me exactly what you did, please.
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A. Usually you have someone sitting up and having their legs dangle, but you can't
always get them in that position. So I was able to lift his leg up enough, and he
actually followed the direction and relaxed and I was able to get a reflex by using the
bell of my stethoscope.

Q. Did you do a Babinski?
A. Yes.

Q. When you say in this note a few lines down, "C spine held supported during exam.
Cleared by myself," what does that mean?
A. When you clear C spine, it's I've done the exam and I was pretty sure that there
was no -- I was -- there was no -- he exhibited no symptoms at that time of a C spine
InJUry.
Q. What does "pupils slightly reactive to light" mean?
A. When you shine a light in somebody's eyes, they open or close depending on
whether the light is on or off them. His were a little bit slower than usual.
Q. Did you measure the opening ofhis pupil?
A. Did I measure it? No.

Q. In millimeters?
A. No, I did not.

Q. Did you estimate it?
A. No.

Q. What does it mean, if anything, to you that his pupils were slightly reactive to
light?
A. They were just sluggish, just slower. Some people have that.

Q. So when someone's pupils are slightly reactive to light, is that an abnormal
finding?

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A. Yes.

Q. What is it potentially indicative of?
A. A head injury. Or some people that's just their norm. And also the light in the
courtroom wasn't fantastic. It's fairly dark. He was on the ground. And it's very hard
to get a perfect eye exam unless you are sitting in, you know, an office like this, tum
off the light, and use your specific light.

Q. Did you have a flashlight with you?
A. I had a penlight, yes.
Q. Did you use that -A. Yes.
Q. --to check his pupils?
A. I did.

Q. Did any other Corizon employee participate with you in the examination while
Mr. Green was on the floor?
A. I had a nurse holding pressure on the scalp wounds.

Q. Who was that?
A. I couldn't tell you.
Q. Was it Ms. [Epperson]?
A. It may have been. I don't recall.
Deposition ofKirstin White (attached as Exhibit 39 to the Declaration of John T. Devlin (#91-39))
at pp. 79-85.
According to White, the exam took about 15-20 minutes and at the conclusion White did not
ask for a cervical collar and did not ask for a backboard. White did not call for an EMT because
despite the purported Corizon motto of "when in doubt, send them out," her clinical suspicion that

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Green had a serious head injury was very low. She did, however, believe that the head injury could
be a subdural hematoma or intercranial bleed that is potentially fatal where time is of the essence in
terms of treatment.
In contrast to White's deposition testimony, her chart note did not note a neurological exam
and did not include the level of detail noted above from her deposition. Epperson did not recall
White performing a neurological exam, but does remember her checking his neck. Bougard recalls
White assessing Green's head, she does not remember White examining Green's legs or feet. The
judicial assistant in the courtroom, Tracy Tomseth, states that no one immobilized Green's neck and
that no one performed a neurological exam. Tomseth did not see anyone do anything with Green's
legs, put hands to his feet, or grab his hand to squeeze.
Three Lane County deputies present, Darryl Davis, Kelly Rahm, and Angela Dodds recall
that White was asked if Green should be transported to the hospital and White responded that he
could be treated at the jail. Deputy Angela Dodds stated that White specifically answered no, that
Green would be treated at the jail and that it was ultimately White's decision. Deputy Kelly Rahm
stated that medical did their assessment and determined that Green did not need to go out in an
ambulance and White stated she could stitch or staple the wound on his head and that it was okay
for the deputies to move Green because "He's fine, he's fine."
Although White did not call for an ambulance, based on her very low suspicion of a serious
head injury, she claims that in response to the deputies questions about going to the hospital, she
stated that she wanted Green to go to the hospital because she was concerned about his head injury.
White says she stated this to defendant Vicki Thomas, Corizon's on-site ranking administrator, who

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was with Deputy Balcom. 2 Deposition ofKirstin White (attached as Exhibit 39 to the Declaration
of John T. Devlin (#91-39)) at p. 91. She recalls Balcom and Thomas saying Green was going to be
released and she stated he needs to go within the hour after they do the release paperwork. Id. at 9193~

White's chart note indicates Green was to be released and that she "will recommend courtesy

drop@ ERfor further/cont. eval." Ex. 52 to the Declaration of John T. Devlin (#91-52). 3 The note
also says, however, that neuro checks need to be done every one to two hours. 4 White acknowledges
that Green was to go to the hospital after the County released Green from custody. Deposition of
Kirstin White (attached as Exhibit 39 to the Declaration of John T. Devlin (#91-39)) at pp. 96.
During oral argument on the instant motion, counsel for the Corizon defendants stated "we
had an untrained lay person who had actually received training on responding to neck injuries, Ms.
T omseth, who was the courtroom deputy during that arraignment, and saw what was happening and
did nothing. Had a phone next to her and could call 9-1-1 and didn't call." Defendants suggested
that Tomseth's reaction supports White's decision to wait for release to send Green to the hospital.
However, Tomseth's testimony suggests the exact opposite:

Q.... Do you have any experience from other aspects oflife about how you deal with
someone that has a -A. Yes.

2

It appears that Thomas fist saw Green in the medical clinic and spoke with Balcom there.

3

Deputy Balcom describes a courtesy drop as simply taking people who can't make it to
the hospital on their own and walking them into the ER where officers leave them and walk
away. Deposition of Guy Balcom (attached as Exhibit 1 to the Declaration of John T. Devlin
(#91-1)) at p. 52.
4

The checks were never done and White asserts that it was inconsistent to put that in the
note, but that it is standard procedure to do the neuro checks. Deposition of Kirstin White
(attached as Exhibit 39 to the Declaration of John T. Devlin (#91-39)) at pp. 95-96.
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Q. -- spinal cord injury?
A. Yes.
Q. Tell me about that.

A. Well, I worked in the medical field for 26 years before I came to the City of
Eugene and have taken lots of CPR/first aid classes so -Q. What did you do in the medical field?

A. Mostly billing sort of stuff, but we all had to take the classes and -- you know,
worked at McKenzie-Willamette for a little bit so we saw lots of trauma videos and
different things and --

Q. And so from your perspective, do you know what it means to immobilize
somebody's neck?

A. Yes.

Q. Do you know what a neurological exam is?
A. Yes.

Q. Did you think they should have been doing [aspects of a neurological exam]?

A. Yes. I have an opinion.
Q. What's your opinion?

A. I think that they probably should have just called 9-1-1 and have him dealt with
that way. They were mostly focusing on his bleeding head so --

Q. Do you recall anybody talking in the courtroom about the possibility that Mr.
Green had suffered a spinal cord injury?

A. No.

Q. Do you recall in the courtroom anybody talking about the fact at that Mr. Green
needed to be sent to the hospital?
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A. No.

Q. Or that EMTs should be called right away?
A. I had a conversation with a deputy around that, but not anybody working on him
or any of that.

Q. Tell me what you remember about that. Who did you talk to?
A. Rob White is a deputy, and he was there that day. I actually know him personally.
And so he was in the courtroom. He was a sergeant at that time. And he came in, and
I just asked him, you know, "Why" -- "Why are they doing this? Why are they not
just calling 9-1-1 ?" And he said that, "It's out of the County's hands," that that's
Corizon's position to take care of people when they're injured or if they need medical
attention.

Q. And then when you-- he was taken out of the courtroom in a wheelchair?
A. Correct.

Q. Could you describe the process as you remember of getting him off the ground
into the wheelchair?
A. I believe two of them lifted him up, you know, like maybe under his arm, set him
in the wheelchair, and they just-- I can't remember if it had footrests on it because
his feet were out straight dragging behind.

Q. It didn't?
A. It must not have, so -- but that's my memory of him being wheeled out, was
backwards.

Q. And was he slumped over in the chair?
A. Yes. Yes.

Q. And did it seem to you to be an appropriate way to be transporting him out of the
courtroom?
A. No.
Deposition ofTracy Tomseth (attached as Exhibit 37 to the Declaration ofJohn T. Devlin (#91-37))

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at pp. 27-32.
As noted by T omseth, deputies removed Green from the courtroom by lifting him into a
wheelchair without taking any precautions regarding his neck. Indeed, there was no C-collar or
backboard available at the clinic. Green initially slid out of the wheelchair and was just limp.
Deputies used Green's sweatshirt to hold him in the chair. The deputies transported Green to the jail
clinic at about 10:5 5 a.m.
White sutured Green's wound and Epperson held up his head during the process. During the
procedure, Green lost control ofhis bowels (which is symptomatic of a spinal injury). The chart note
does not indicate the loss of control and no neurological check was done following this incident.
After seeing Green in the clinic, Thomas states she told deputy Darryl Davis that Green needed to
go to the hospital right away and that he told her Green would be released within the hour and then
they would get him to the hospital. Thomas claims she told him it needs to be by ambulance.
However, Deputy Balcom states that he asked Thomas about taking him to the hospital and that he
could get Green released if necessary, but she told him he did not need to go to the hospital.
Epperson testified that she did not think Green needed to go to the hospital because she
believed he was faldng being paralyzed and his head laceration had been fixed. Deposition of
Sharon Epperson (attached as Exhibit 12 to the Declaration of John T. Devlin (#91-12)) at p. 110.
The Corizon mental health specialist, defendant Jacob Pleich stated he was called to the
clinic, but he did not get to see Green at the time he was having the sutures done.
At 11 :29 a.m. Green was wheeled from the medical clinic to a segregation cell about 20 to
30 feet away. 5 Green was limp with his feet dragging and the deputies very roughly removed his

5

The Corizon medical staff claim they were not aware he went to segregation, but the
video from outside the cell shows that at some point during the first five minutes or so that Green
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shirt, removed him from the wheel chair, dropped him on the floor, roughly placed him on the bed
and removed the rest ofhis clothes. No attempt was made to clean Green despite his loss of bowel
control. The Deputies left Green at 11 :34 am and he remained motionless.
Deputy Donald Burnette was assigned to watch Green. At 12:17 p.m., because Green was
motionless, Burnette states he called the medical office and spoke to a female to report the lack of
any movement and received the response that as long as Green was breathing, he was okay. Burnette
repeated this action again at 1:35 p.m. because there still had been no movement from Green and
received the same response from the medical office. Corizon asserts that no one called their office,
but Burnette's testimony and contemporaneous memorandum creates an issue offact. 6
At 2:28 p.m. Jacob Pleich interviewed Green and responded to him as if he was faking
paralysis and initially refused to place a blanket on the still naked Green. Pleich completed a form
indicating Green was motionless and should receive a psychiatric referral.
At 3:30p.m. Deputy Carrel relieved Burnette and Burnette stopped by the Corizon medical
office to speak with a nurse to inform her of Green's motionless condition. Burnette states that he
was told they were trying to get around to Green. Carrell then went to the medical office and

is in the cell, Jacob Pleich and another woman in plain clothes drop by and appear to laugh about
Green's predicament along with the deputies.
6

The only female nurse working at the jail at that time was Epperson. At oral argument
counsel for Corizon notes that there were other non-medical female Corizon employees working
at the time. Burnette's February 13, 2103 memorandum notes that he initially "called medical ...
and asked how long I should allow him to remain unmoving in this position until I again notified
them. They asked If he was breathing. I informed them he was breathing and had spoken to me,
Medical stated they would be back to evaluate him later in the day, but as long as he was
breathing there was no immediate concern..... At 1345 hours. I again called medical .... Medical
again asked if he was breathing." Memorandum dated 02/13/2013 (attached as Exhibit 45 to the
Declaration of John T. Devlin (#91-45)). A trier of fact could conclude that the conversation
involved a medical professional and, therefore, could conclude that Epperson took the call.
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summoned two Corizon nurses and at 3:3 5 p.m., Epperson and Leah Smith (who had just started her
shift) examined Green. Smith then summoned P A White.
White arrived at 3:41 p.m., examined Green and stated he needs to go to the hospital and also
stated that she had been under the impression he was going to be released within an hour or two
(after his injury) and be "dropped" at the hospital. White was now worried about a spinal injury, but
provided no instruction on immobilizing Green's head.
Smith returned to the cell and noted Green's vital signs which were indicative of shock.
Smith reported the vitals to White at 3:53p.m. and White believed Green was in neurogenic shock
(a potentially fatal condition). However, White then apparently clocked out of work at 3:57p.m
notwithstanding that she was the most highly trained medical professional on the premises at the
time.
Thomas and Epperson were in Green's cell at 4:15p.m. to 4:30p.m. to clean Green. Thomas
believed the situation was an emergency because there was too much time between the incident and
then. During the cleaning it is unclear if any neck precautions were taken, but at best, a soft collar
was placed on Green and removed to clean his backside.
At 4:33p.m. an ambulance was called, but the jail logbook indicates it was a code 1 (drive
normal) and the ambulance arrived at 4:49p.m. The EMTs immediately immobilized Green's neck.
Smith is the only Corizon employee to speak with the EMTs and she does not appear to provide
much information telling them the report is kind of poor.
Green left the Jail at 5:20p.m. via ambulance and arrived atRiverBendHospital at 5:31p.m.
He underwent spinal surgery at 7:46p.m. because he suffered a burst fracture of the C-4 vertebra that
compromised but did not sever his spinal cord. Plaintiffs' expert states that had Green been treated

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immediately, his outcome would have been significantly improved and he would not have been
rendered a ventilator dependent high quadriplegic and would not have died as a result of ventilator
dependence complications.
It should be noted that there is evidence in the case from which a jury could conclude that

medical records were removed and added after the fact by one or more of the defendants. The
Corizon medical chart does not contain a copy of the emergency room referral (with minimal
information) filled out by Smith before Green's transportation. The RiverBend chart has a copy of
this referral, however, but the Corizon chart has a much more detailed one (containing inaccuracies
that could be viewed as supporting White's actions) prepared by White that she claims she prepared
before the EMT's arrived. A note prepared by Epperson also has disappeared from Corizon's chart.
In addition, an untimed progress note authored by White purportedly on February 12,2013, appears

in the chart, but it appears in the entry after Smith's 5:30 entry. Smith states that White was not at
the jail at that time and indeed time records indicate she left at 3:5 7 p.m. 7
Corizon's policy require a review process in situations like this, but it did not initiate the
process (sentinel review) until after plaintiffs gave it notice of the lawsuit. The review did not
include interviews with any Lane County staff and only included an interview of White. No effort
appears to have been made to determine who Burnette called. Although, the review did find White
to be "reckless," a Corizon official rescinded that assessment in depositions. 8 It appears that Corizon

7

White testified she usually leaves at 5:30 or 6:00, but she has a very "fluid schedule."
She is not sure if she was already out of the jail when the ambulance arrived.
8

Tonya Mooningham, a RN working as a clinical risk ·management analyst at Corizon
corporate in Tennessee, completed the assessment. She felt that Green should have been sent to
the ER immediately and that the facility should have had a C Collar, but testified that she made a
mistake checking the behavior as "reckless" and now believes that it was simply a mistake. She
does not even now consider White's conduct to be negligent. Deposition ofTonya Mooningham
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officials found the standard of care mostly adequate. Although Corizon claims it took corrective
action via "counseling" for White and now has a backboard and C collar on site, there is no
documentary evidence to support the counseling. 9 Indeed, White received an excellent performance
review in the Fall of 2013. She is still the primary care giver at the Lane County Jail. She feels that
everything done with respect to Green was within Corizon policies and procedures.
The second amended complaint alleges the following claims:
(1) Wrongful death under the FourteenthAmendmentpursuantto 42 U.S.C. § 1983 against
defendants Thomas, White, Epperson, Pleich and Corizon based on deliberate indifference to Green's
serious medical needs with respect to post-injury treatment.
(2) Monell claims against Corizon and Lane County under section 1983 with respect to
polices of not providing mental health screening and lack of proper on-site medical professionals in
addition to a policy of delaying care in an anticipation of release.
(3) Supervisor liability pursuant to section 1983 against Defendants Carl Keldie, Justin
Montoya, Vicki Thomas, and Corizon based on allowing, approving, and ratifying alleged harm

(attached as Exhibit 24 to the Declaration of John T. Devlin (#91-24)) at pp. 38-39, 47.
9

Corizon asks the court to strike all mention of the sentinel event report or its internal
process of implementing the report. Corizon asserts the report is a remedial measure
inadmissable under Fed. R. Ev. 407. There is no peer review privilege under federal law.
Measures taken that would have made an earlier injury less likely to occur are not admissible to
prove negligence, but they may come in for impeachment or other purposes. Here, the evidence
appears to be offered to show that Corizon itself had a policy that led to the extent of harm
suffered by Green through ratification of the actions of the on-site employees. Indeed, plaintiffs
assert that there were no remedial measures taken, and thus the motion to strike the sentinel
report and the process through which it was implemented is denied. Of course the issue can be
revisited prior to trial through an appropriate motion in limine if necessary, but for now it does
demonstrate an issue of fact as to whether Corizon itselfhad a policy of delaying outside hospital
treatment as much as possible. In addition, the report shows that, at least at some point, even
Corizon viewed White's actions as reckless which demonstrates an issue of fact as to deliberate
indifference which appears to have been condoned by Corizon.
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causing policies and in failing to adequately train employees and Lane County deputies.
(4)

Wrongful death based on negligence against Corizon and Lane County for failure to

conduct an adequate intake screening prior to injury and adequate medical care after injury and for
inadequate training.
(5) Wrongful death based on gross negligence for failing to conduct an adequate screening
prior to injury and for failing to provide adequate care after the injury, in addition to inadequate
training, against Corizon acting through its employees.
Plaintiffs also allege the same claims as survival claims alternative to the first five claims.

DISCUSSION
The Corizon defendants seek judgment with respect to all claims (state and federal) regarding
injuries resulting from the failure to screen Kelly Green during intake after his arrest. The Corizon
defendants also seek summary judgment as to the section 1983 claims regarding post-injury actions,
but do not otherwise seek summary judgment as to the state law claims for negligence or gross
negligence with respect to the alleged injuries resulting from the care of Green after running into the
wall. Accordingly, the parties divide their arguments into pre-injury and post-injury claims. ·

A.

Pre-Injury
As a pre-trial detainee, Green's rights while in custody of the County derived from the Due

Process clause rather than the Eighth Amendment's protection against cruel and unusual punishment.
Gibson v. Cnty. ofWashoe, 290 F.3d 1175, 1187 (9th Cir. 2002). "[T]he due process clause imposes,
at a minimum, the same duty the Eighth Amendment imposes: 'persons in custody ha[ ve] the

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established right to not have officials remain deliberately indifferent to their serious medical needs."'
Id. (quoting Carnell v. Grimm, 74 F.3d 977,979 (9th Cir. 1996)). This duty to provide medical care
encompasses detainees' psychiatric needs. Cabrales v. County of Los Angeles, 864 F.2d 1454, 1461
(9th Cir. 1988), vac'd, 490 U.S. 1087, 109 S.Ct. 2425, 104 L.Ed.2d 982 (1989), opinion reinstated, 886
F.2d 235 (9th Cir.1989) .

.L

Monell Claims Under Section 1983

Corizon, as an entity contracted to provide medical services to Lane County inmates may be
liable under section 1983 when undertaking duties to treat inmates. See West v. Atkins, 487 U.S. 42,
54 (1988) ("Respondent, as a physician employed by North Carolina to provide medical services to
state prison inmates, acted under color of state law for purposes of section 1983 when undertaking his
duties in treating petitioner's injury. Such conduct is fairly attributable to the State.").
In order to comply with the duty not to engage in acts evidencing deliberate indifference to
inmates' medical and psychiatric needs, jails must provide medical staff who are "competent to deal
with prisoners' problems." Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982). Failure to screen
for those problems may violate an inmate's rights. In order to know of the risk of violation, it is not
enough that the person merely "be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, ... he must also draw that inference." Id. If a person should have
been aware of the risk, but was not, then the person has not violated the Eighth Amendment, no matter
how severe the risk. Jeffers v. Gomez, 267 F.3d 895,914 (9th Cir. 2001). But if a person is aware of
a substantial risk of serious harm, a person may be liable for neglecting a prisoner's serious medical
needs on the basis of either his action or his inaction. Farmer v. Brennan, 511 U.S. 825, 842.

Page 18 - ORDER

An entity such as Lane County or Corizon cannot be held liable under a theory of respondeat

superior. City of Canton v. Harris, 489 U.S. 378, 387 (1989). However, Corizon can be liable under
Monell v. Dept. of Soc. Serv. of City ofNew York, 436 U.S. 658 (1978). Under Monell, a local
government body can be held liable under section 1983 for policies of inaction as well as policies of
action. See Gibson, 290 F .3d at 1185-86. A policy of action is one in which the governmental body
itselfviolates someone's constitutional rights, or instructs its employees to do so; a policy of inaction
is based on a governmental body's "failure to implement procedural safeguards to prevent
constitutional violations." Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1143 (9th Cir. 2012).
In inaction cases, the plaintiff must show, first, "that [the] policy amounts to deliberate
indifference to the plaintiffs constitutional right." Id. (citations omitted) (internal quotation marks
omitted). This requires showing that the defendant "was on actual or constructive notice that its
omission would likely result in a constitutional violation." Id. at 1145 (citations omitted). Second, the
plaintiff must show "that the policy caused the violation in the sense that the municipality could have
prevented the violation with an appropriate policy." Id. at 1143 (citations omitted) (internal quotation
marks omitted).
Corizon asserts that Lane County had a policy of not contacting Corizon for inmate screening
upon intake. However, as noted above, the contract with the County put that responsibility on Corizon
and there is evidence to suggest Corizon was contacted about Green's serious medical condition of
schizophrenia. Moreover, As set forth above, suicidal ideation had been implicated even before Green
arrived at the jail. Thus, the evidence lends itself to an inference that Corizon, perhaps in conjunction
with Lane County, implemented a policy of not screening inmates upon intake. 10

10

The record supports a finding that Deputy Nelson was not adequately trained to screen
for mental health issues. Corizon argues that it was told by Lane County that the County would
Page 19- ORDER

Plaintiffs expert, Dr. Amanda Ruiz, notes that national standards require arrestees receive
intake medical and mental health screening at the time they are taken to the jail and booked. She
asserts that both Lane County and Corizon did not provide an adequate medical/mental health
screening and that if Green had received appropriate intake screening when brought in, the risk that
he would injure himself would have been substantially reduced. Indeed, Dr. Ruiz opines that in her
professional opinion, had Green been appropriately screened at intake and had been appropriately
diagnosed and treated after intake, he would not have attempted to injure himself during the court
proceedings on February 12, 2013.
Corizon argues Dr. Ruiz's conclusion is "completely meaningless." However, this is the type
of opinion experts may provide and a trier of fact determines what weight to give the opinion.
Accordingly, a trier of fact could conclude that Corizon had a policy of not providing medical/mental
health screening contrary to its own contractual obligations and that policy was a moving force behind
Green's injury. In other words, Corizon's policy arguably resulted in a deliberate indifference to
Green's serious psychiatric needs and Corizon, per the contract, was aware that failure to provide
adequate intake screening would likely result in a constitutional violation. 11 As Dr. Ruiz opines,
Corizon could have prevented the violation with an appropriate policy. Accordingly, the motion for

handle such training for its deputies. But, as noted, the contract put the screening responsibility
on Corizon and it does not show that it provided training to Lane County deputies in this regard.
11

The contract specifically notes that Coizon's "initial health assessment is an important
inquiry ... designed to ensure a newly arrived inmate ... is admitted ... only after an appropriate
level of medical intervention. The Corizon intake screening for Lane County will identify
inmates with suicidal tendencies.... Intake medical screening will be conducted on all new
inmates ... in accordance with current applicable ACA and NCCHC standards .... Corizon intake
medical screening at the jail will be conducted ... 24 hours a day ... as part of the bookkeeping
process. Corizon feels that the intake screening process is fundamentally one of the most
important functions that the medical services team will provide." Personal Services Contract
(attached as Exhibit 48 to the Declaration of John T. Devlin (#91-48)) at p. 4.
Page 20 - ORDER

summary judgment as to the Monell claim is denied. See Gibson, 290 F.3d at 1191 (Summary
judgment is inappropriate as long as a jury can infer that the policymakers knew that their policy of
not screening certain incoming detainees would pose a risk to someone in plaintiffs situation).

2.

Supervisor Liability

Corizon first argues that because the County never requested the screening, there can be no
supervisor liability. However, as noted above, there is an issue of fact as to whether Corizon was
notified and its contract required intake screening.
Plaintiffs assert Dr. Keldie, the national medical director at Corizon, Dr. Montoya, Corizon's
Lane County site medical director, and Thomas are responsible for the pre-injury claims because they
were responsible for the lack of intake screening policy.
"A showing that a supervisor acted, or failed to act, in a manner that was deliberately
indifferent to an inmate's Eighth Amendment rights is sufficient to demonstrate the involvement-and
the liability-of that supervisor." Starr v. Baca, 652 F.3d 1202, 1206-07 (9th Cir. 2011). The
supervisor need not be personally involved in the same way as are the individual medical providers
on the scene inflicting constitutional injury. Id. at 1205. The supervisor's participation could include
his own action or inaction in the training, supervision, or control of his subordinates, his acquiescence
in the constitutional deprivations or conduct that showed a reckless or callous indifference to serious
medical needs. See, id., at 1205-06.
Despite Corizon's protestations of the adequate training it provides to its employees, it is
undisputed that it indeed had a policy, while perhaps in conjunction with Lane County, to generally
not conduct intake screening. And as noted above, there is evidence to suggest that the Lane County

Page 21- ORDER

deputy on duty that night was not adequately trained by either Lane County or Corizon to handle
mental health screening. Thomas stated that she follows the County's orders regarding intake
screening, specifically stating we don't make the rules," but that at the same time, she was unaware of
both the contract terms regarding Corizon's responsibilities for intake screening and the training
deputies received. Deposition ofVicki Thomas (attached as Exhibit 36 to the Declaration of John T.
:Devlin (#91-36)) at p. 97-100. This is sufficient to demonstrate her acquiescence in a constitutional
deprivation.
Dr. Montoya was responsible for ensuring that the jail complied with national standards
regarding screening and he knew Corizon staff did not generally conduct intake screening, but that
inmates were evaluated only when they were being housed. This is sufficient for a trier of fact to
conclude acquiescence in the alleged constitutional deprivation.
Plaintiff concedes Dr. Keldie is not liable as a supervisor and summary judgment is granted
as to Dr. Keldie for pre-injury supervisor liability.

~

State Law Claims

Plaintiffs bring negligence and gross negligence claims against Corizon based on vicarious
liability for the pre-injury claims. The elements of a claim for medical malpractice are: (1) a duty that
runs from the defendant to the plaintiff; (2) a breach of that duty; (3) harm that is measurable in
damages; and (4) a causal link between the breach and the harm. Zehr v. Haugen, 318 Or. 647, 653-54
(1994). Corizon argues that it could have no duty to a detainee it does not know exists. However, as
noted above, there is an issue of fact as to whether Corizon was notified by Nelson. In addition, it
assumed the duty to conduct intake screening via the contract with Lane County. Accordingly, the

Page 22 - ORDER

motion for summary judgment as to the state law pre-injury claims is denied.

B.

Post-Injury

.L

Monell Claims under Section 1983

Plaintiffs allege that Corizon and Lane County had a policy, custom or practice of not
providing for trained physicians to examine seriously injured Lane County inmates and that they had
a policy, custom or practice of denying Lane County inmates necessary medical care if said inmates
are thought to be soon released from the jail. Plaintiffs also allege a policy, custom or practice of
delaying transferring Lane County inmates to hospitals for necessary emergency medical care in order
to first prepare paperwork to effectuate a jail discharge. Finally, plaintiffs allege a policy, custom or
practice of failing to meet widely accepted community standards of care with regard to medical
services for injured inmates of the Lane County jail.
As noted above, Monell liability can be asserted against the entity employing the people who
allegedly engaged in the acts that deprived Green of his constitutional right to not have officials be
deliberately indifferent to his serious medical needs if that deprivation resulted from a custom or policy
of the employing entity. See Monell436 U.S. at 694 (municipality liable under section 1983 when
execution of a its policy inflicts the injury). To establish municipal liability under section 1983,
plaintiffs need to show that ( 1) Green was deprived of his right to avoid deliberate indifference to his
serious medical needs; (2) Corizon had a policy that amounted to a deliberate indifference to Green's
serious medical needs; and (3) the policy was the moving force behind the constitutional violation.
See Burke v. County of Alameda, 586 F.3d 725, 734 (9th Cir. 2009). As noted previously, plaintiffs
must show that Corizon was aware of the risk of its policy to cause constitutional harm . .E..,.&, Farmer,

Page 23 - ORDER

511 U.S. at 837.
With respect to lack of proper on-site trained professionals, Corizon asserts its policy was to
have the ranking on-site medical officer (White) either arrange for transport to a hospital or summon
Dr. Montoya. Moreover, it asserts the presence of a physician's assistant was appropriate by itselfto
provide care in the situation. Plaintiffs present evidence that even some Corizon officials felt that
White did not see the full picture given her level of training, but that Montoya did not think she needed
to call him.
Post-event evidence may be used to prove the existence of Corizon's policy. See Henry v.
County of Shasta, 132 F.3d 512, 518 (9th Cir. 1997) .. A policy or custom may be inferred if, after
Green's allegedly unconstitutional treatment, Corizon officials took no steps to reprimand or discharge
White or if it otherwise failed to admit White's conduct was in error. See McRorie v. Shimoda, 795
F.2d 780, 784 (9th Cir. 1986). Despite the policy to contact Montoya or send out for critical care,
White arguably did neithe~. While Corizon asserts she was capable ofhandling the situation, Corizon's
review, at least at one point, found her actions reckless. See Sentinel Event Review Form (attached
as Exhibit 65 to the Declaration of John T. Devlin (#91-65)) at p. 9; Deposition ofTonya Mooningham
(attached as Exhibit 24 to the Declaration of John T. Devlin (#91-24)) at p. 39 (found reckless behavior
at the time because Green should have been sent to the ER immediately and the facility should have
had a C collar). Recklessness goes beyond mere negligence or gross negligence and amounts to the
deliberate indifference prohibited by the Eighth Amendment:
A deliberate indifference claim contains two requirements. The first requirement is
objective: "the alleged deprivation of adequate medical care must be 'sufficiently
serious."' Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir. 2006) (quoting Farmer v.
Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)). The second
requirement is subjective: the charged officials must be subjectively reckless in their
denial of medical care. Id. at 280. This means "that the charged official [must] act or

Page 24 - ORDER

fail to act while actually aware of a substantial risk that serious inmate harm will
result." Id. Officials need only be aware of the risk of harm, not intend harm. Id. And
awareness may be proven "from the very fact that the risk was obvious." Farmer, 511
U.S. at 842, 114 S.Ct. 1970.

Spavone v. New York State Dept. of Correctional Services, 719 F.3d 127, 138 (2d Cir. 2013).
While Corizon asserts some sort of training may have occurred post-incident, an inference can
be drawn that no action was taken against White by Corizon for failing to ensure adequately trained
medical providers were on-site or that Green could be transported to such a site. Indeed, Corizon
refuses to now admit that White's treatment was not in accordance with the proper standard of care and
White believes she complied with Corizon policies. Accordingly, a trier of fact could infer that
Corizon had a custom or policy of failing to provide adequately trained medical personnel at the jail.
The remaining Monell claims involve a policy to deny or delay care if an inmate is soon to be
released, and discourage transfer to a hospital. Even White testified that she felt that Green's transfer
to a hospital could wait an hour or so while Lane County prepared his release to then provide a
"courtesy drop," i.e., walk Green into the ER and leave him. As noted above, However, Mooningham,
during the sentinel review, felt it was reckless to not immediately send Green to the ER. There appears
to be no discipline for this behavior and thus an inference can be drawn that Corizon had a policy of
delaying treatment to await an inmate's release.
Moreover, there is some suggestion via Corizon's handling of other inmate cases nationwide
that efforts were made to avoid transfer to a hospital while an inmate was in the care of Corizon. See,
~Declaration

of Charles Pugh (#94), former Corizon site medical director in Georgia,

at~

2-4

(constant pressure from superiors in Corizon to minimize ER visits to save money and constant
monitoring of hospitalizations).

Page 25 - ORDER

White participated in weekly calls with Corizon corporate

headquarters in which the primary topic of discussion was the status of every Corizon hospitalized
patient.
Corizon asserts that even if such a policy existed, it could have no impact in this case since
technically Green was in the Custody of the Eugene police and thus the hospital bill would not be their
responsibility. However, at the time "Corizon said they would probably pay for the ER while pt was
in custody ... but it was found that 'pt arrived after release from custody."' Exhibit 59 to the declaration
of John T. Devlin (#91-59) at p. 1. In addition, White testified that she was aware that when a
custodial inmate is sent to the hospital, Corizon pays for anybody from Lane County jail regardless of
which agency had arrested the inmate. Deposition of Kirstin White (attached as Exhibit 39 to the
Declaration of John T. Devlin (#91-39)) at p. 64-65. 12 Thus, an inference can be drawn that Corizon
did have a policy of delaying treatment at the ER to avoid the cost of hospitalization and that policy
was a moving force behind the decision to not immediately send Green to the ER. This is especially
true given the apparent lack of reprimand given to White.
This failure and subsequent lack of remedial action also demonstrates a policy of failing to
conform to widely accepted standards of care for seriously injured inmates. Accordingly, the motion
for summary judgment as to post-injury Monell claims is denied.

2.

Deliberate Indifference

Plaintiffs assert direct claims against Corizon, Thomas, White, Epperson, and Pleich. Because

12

Defendants object to the admissibility of White's testimony regarding when Corizon
pays arguing it assumes incorrect facts. Corizon seeks to strike the statement. However, the
statement, correct or not, is evidence of White's adherence to Corizon policy that resulted in
injury to Green. Furthermore, such evidence is relevant to White's state of mind and rebuts any
argument by Corizon that White would have had no motive to delay Green's transport to the
hospital pursuant to Corizon policy.
Page 26 - ORDER

a private entity that acts under color of law enjoys the same protections against respondeat superior
liability under section 1983 as a public entity, Corizon cannot be liable for the actions of its employees
beyond Monell liability. Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138-39 (9th Cir. 2012).
Accordingly, the motion for summary judgment as to the post-injury claims in plaintiffs' first cause
of action against Corizon (respondeat superior liability) is granted. 13
Plaintiff alleges the deliberate indifference with respect to the individual defendants:
a. In failing to provide prompt medical attention to his serious medical needs;
b. In failing to provide any neck or spine precautions;
c. In failing to promptly transfer Mr. Green from the Lane County jail to a hospital for
diagnosis and treatment;
d. In seriously aggravating his medical condition by authorizing the moving, dragging
and careless manipulation of Mr. Green's body after he suffered a serious neck
fracture;
e. In seriously aggravating his medical condition by moving, dragging and carelessly
manipulating Mr. Green's body after he suffered a serious neck fracture;
f. In seriously aggravating his medical condition by ignoring his medical plight for
almost six hours; and
g. In allowing and causing him to lie naked, not moving and in his own feces on a jail
bed from approximately 11:30 a.m. until approximately 4:00p.m.
Second Amended Complaint (#66)

at~

33.

In addition, plaintiffs allege that defendant Pleich was deliberately indifferent in
a. In failing to promptly report defendant Pleich's interaction with and observations of
Casey Green to Corizon medical or nursing staff; and
b. In failing to make any effort to arrange for emergency medical care for Casey Green
after being told by Casey Green that he was paralyzed.

13

Plaintiffs' novel argument to the contrary, this court may not overrule the Ninth Circuit
and reach a different conclusion.
Page 27 - ORDER

Id. at ,-r 34.
Plaintiff also alleges further indifference on the part of White in that she:
a .... did not take the necessary steps to have Mr. Green immediately taken by
ambulance to a hospital after examining him at approximately 3:40p.m. on February
12, 2013; and
b. Defendant White abandoned Mr. Green at approximately 3:57p.m. when she left the
jail knowing that he had suffered a significant neurological injury, knowing that his
blood pressure and pulse were critically low, knowing that he was in neurogenic shock,
and knowing that no other physician's assistant or medical doctor was in the jail to
provide necessary emergency medical care.
Id. at 1 35.
As noted above, Green enjoys rights while in custody of the County derived from the Due
Process clause imposing, at a minimum, the Eighth Amendment's protection against cruel and unusual
punishment.
In order to establish a violation of that right, Plaintiffs must establish a "serious medical need"
such that "failure to treat a prisoner's condition could result in further significant injury or the
unnecessary and wanton infliction of pain." Jett v. Penner, 439 F.Jd 1091, 1096 (9th Cir. 2006). Next,
Plaintiffs must show that defendants' response to the serious medical need was deliberately indifferent.
Id. Deliberate indifference may be established by evidence of" (a) a purposeful act or failure to respond
to a prisoner's pain or possible medical need and (b) harm caused by the indifference." Id. Deliberate
indifference may be shown where prison officials or practitioners "deny, delay or intentionally interfere
with medical treatment." Hutchinson v. United States, 838 F.2d 390,394 (9th Cir. 1988). In contrast,
"mere negligence in diagnosing or treating a medical condition, without more, does not violate a
prisoner's Eighth Amendment rights." Id. See Hunt v. Dental Dept., 865 F .2d 198, 200 (9th Cir. 1989)
(prisoner's deliberate indifference allegations were sufficient where he alleged "prison officials were

Page 28 - ORDER

aware of his bleeding gums, breaking teeth, and his inability to eat properly, yet failed to take any
action to relieve his pain or to prescribe a soft food diet until new dentures could be fitted.").
"The state of mind for deliberate indifference is subjective recklessness." Snow v. McDaniel,
681 F.3d 978, 985-86 (9th Cir. 2012). However, the standard is "less stringent in cases involving a
prisoner's medical needs ... because 'the State's responsibility to provide inmates with medical care
ordinarily does not conflict with competing administrative concerns."' McGuckin v. Smith, 974 F.2d
1050, 1060 (9th Cir. 1992) (partially overruled on other grounds) (quoting Hudson v. McMillian, 503
U.S. 1, 6, 112 S.Ct. 995 (1992)) (alterations omitted). "Similarly, '[i]n deciding whether there has been
deliberate indifference to an inmate's serious medical needs, [courts] need not defer to the judgment
of prison doctors or administrators."' Snow, 681 F.3d at 985 (quoting Hunt v. Dental Dep't, 865 F.2d
198, 200 (9th Cir. 1989)). "Although the deliberate indifference doctrine contains a heightened
foreseeability requirement, this requirement differs from the traditional negligence foreseeability
requirement only insofar as deliberate indifference requires the defendant to be subjectively aware that
serious harm is likely to result from a failure to provide medical care." Gibson, 290 F.3d at 1193.
It is undisputed that Green suffered a serious medical need. The role of each defendant with

respect Green's treatment of that serious medical need is discussed below.

a.

Defendant White

As noted above, there is evidence from Corizon itself that P A White's failure to immediately
send Green to the ER was reckless. Accordingly, the motion for summary judgment is denied with
respect to all allegations regarding White's initial and recurring failure to send Green to the ER and
in abandoning Green prior to the arrival of the EMTs.

Page 29 - ORDER

In addition, a trier of fact could conclude the need for a neurological exam was obvious enough
to a qualified medical practitioner that the purported failure to conduct one is also deliberately
indifferent. 14 Moreover, a fact-finder could also conclude the alleged subsequent lack of precautions
regarding the neck and spine and the failure to prevent the rough handling of Green without those
precautions was deliberately indifferent. The motion for summary judgment as to the deliberate
indifference of White is denied.

b.

Defendant Epperson

As noted above, Epperson does not recall a neurological exam being done and a trier of fact
could conclude that the need for such was obvious to this medical professional. Epperson did not seek
to ensure an exam was done and nonetheless stood by while no precautions were taken regarding
Green's neck and spine. Simply relying on White as her superior does not relieve her of her own
deliberate indifference without some showing that the she attempted to engage in medically necessary
treatment and was prevented by White. In addition, there is evidence from which a trier of fact could
conclude that Epperson twice took calls from Deputy Burnette about Green's complete lack of
movement and simply replied that as long as Green is breathing, he is fine. A trier of fact could
conclude that such action constitutes deliberate indifference. In addition, a trier of fact could conclude
that Epperson's handling of Green's neck and spine during the process of cleaning, even assuming the
use of soft collar (removed to clean his backside), was also deliberately indifferent to the now even
more obvious spinal trauma. The motion for summary judgment as to the deliberate indifference of
Epperson is denied.

14

While White contends she did conduct a neurological exam immediately after Green's
injury, her testimony is contradicted by other evidence in the record.
Page 30 - ORDER

c.

Defendant Thomas

Thomas was also of the belief that Green needed to go to the hospital but, at a minimum,
agreed to await the supposed hour or so to get a discharge from custody. In addition, Thomas
participated in the cleaning of Green without adequate precautions for his neck and spine. The motion
for summary judgment as to the deliberate indifference of Thomas is denied.

d.

Defendant Pleich

Pleich is a mental health specialist with no medical training. Pleich was not present in the
courtroom or in the medical clinic during treatment of the head wound and loss of bowel control.
While there is evidence that Pleich ignored Green's paralysis in the cell during about a six minute
discussion with Green, there is no suggestion he was subjectively aware of the extent of the spinal
injury as he believed Green was faking. At best, Pleich's actions were negligent, but not deliberately
indifferent. The motion for summary judgment as to the section 1983 claim against Pleich is granted.

~

Supervismy Claims

Plaintiff concedes that defendants Thomas and Montoya are not liable under a theory of
supervisory liability for the post-injury claims and the motion for summary judgment as to these claims
is granted with respect to them.
Plaintiffs assert that Dr. Keldie, as the chief medical officer for Corizon from September of
2000 through the end of2010 and again from late 2011 until April1, 2013 was aware of the alleged
policy to delay hospitalization until an inmate was discharged. In addition, plaintiffs present evidence
that Dr. Keldie was aware of previous cases in which Corizon was found liable for such policy ..

Page 31 - ORDER

However, this is more appropriately framed as a Monell claim rather than one for supervisor liability
as there is insufficient evidence that Keldie supervised this particular treatment or was aware of it. His
implementation ofthe policy demonstrates he was a policy-maker for purposes ofMonellliability, but
does not sufficiently demonstrate personal supervisor liability. Although Keldie could be liable as a
supervisor if he had ratified White's conduct by failing to discipline or otherwise correct the alleged
reckless behavior, plaintiffs do not present evidence of his participation in the sentinel review and
subsequent acquiescence in her behavior. The motion for summary judgment with respect to Dr.
Keldie's liability for supervising the alleged post-injury deliberate indifference to Green is granted.

CONCLUSION
For the reasons stated above, the Corizon defendants motion for partial summary judgment
(#69) is granted in part and denied in part.
DATED this

0~ay of April2015.
United States

Page 32 - ORDER