Thomas et al v. Lincoln County, et al

Filing 57

OPINION AND ORDER: Granting 51 Motion to Dismiss for Failure to State a Claim. Plaintiff's first claim for relief is dismissed with respect to Central Coast and Samaritan. Plaintiffs request for oral argument is denied as unnecessary. Signed on 7/27/2017 by Judge Ann L. Aiken. (ck)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION

RONALD THOMAS, as personal
representative for the estate of BRADLEY
STEVEN THOMAS,

Case No. 6:16-cv-00562-AA
OPINION AND ORDER

Plaintiff,
vs.
LINCOLN COUNTY, et al.,
Defendants.

AIKEN, Judge:
Two defendants, Samaritan Pacific Health Services, Inc., ("Samaritan") and Central
Coast Internal Medicine, PC, ("Central Coast") move to dismiss a Fourteenth Amendment claim
brought against them by plaintiff Ronald Thomas, acting as personal representative for the estate
of decedent Bradley Steven Thomas. For the following reasons, defendants' Motion to Dismiss
is granted.

PAGE 1 - OPINION AND ORDER

BACKGROUND

This is a case about the death of a county inmate. Plaintiff alleges that in March 2015,
decedent was mTested in Lincoln County and booked into Lincoln County Jail ("the jail").
Second Am. Comp!.

("SAC")~~

17-18. Two weeks later, decedent died in miserable conditions,

suffering starvation and dehydration brought on by symptoms of his mental illness. Id

~~

51-52.

Plaintiff alleges Mr. Thomas received "widespread recognition" as an individual facing a serious
health condition, but did not receive medical or psychological services from either defendant
throughout his sixteen days of incarceration. Id

~

24.

Central Coast is an Oregon professional corporation and Samaritan is an Oregon nonprofit corporation. Id

~~

14-15. Dr. David Long, a shareholder in Central Coast and possibly

one in Samaritan, was under contract with Lincoln County to provide medical services at the jail.

Id

~

16. Plaintiff alleges that Dr. Long was at the jail on at least two occasions during the time

decedent was incarcerated there, yet provided no medical or psychological services to decedent.

Id at

ii

54.

Plaintiff claims this failure violated decedent's rights under the Fourteenth

Amendment, and seeks to hold Central Coast and Samaritan liable for these actions based on
their affiliation with Dr. Long. Id at 10. Central Coast and Samaritan argue that, under 42
U.S.C. § 1983, they are liable only for their own policies and practices and cannot be held
vicariously liable for Dr. Long's conduct. Defs.' Mot. Dismiss 2.
DISCUSSION

As plaintiff acknowledges, I am bound by Ninth Circuit precedent to dismiss any claim
under 42 U.S.C. § 1983 predicated on vicarious liability. Pl.'s Resp. Mot. Dismiss 5. Plaintiffs
claim is foreclosed by Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138-39 (9th Cir. 2012). In

Tsao, the comt held that immunity granted to municipalities from vicarious liability under §

PAGE 2- OPINION AND ORDER

1983 must also apply to private entities that act on behalf of municipalities. Id (citing Monell v.
Dept't of Soc. Servs., 436 U.S. 658, 691 (1978)). The Tsao comt, following the lead of several

other circuits, saw no basis in J'v!onell "for distinguishing the case of a private corporation" from
a municipality. Id (quoting Powell v. Shopco Laurel Co., 678 F.2d 504, 506 (4th Cir. 1982)).
Stare decisis prohibits any deviation from this holding in the present case.
Recognizing the effect of this precedent, plaintiff argues that Tsao should be revisited. I
agree.

Tsao applied the municipal exemption from J'v!onell to private corporations without

considering the significant differences between municipalities and these private actors. The Tsao
Comt based its decision on ambiguous statutory text and yet omitted any analysis of the
legislative history or public policy concerns that underlie this issue. These concerns ultimately
weigh in favor of respondeat superior liability for private entities, regardless of whether they are
state actors.
The J'v!onell Comt's holding rested on both textual analysis and legislative history. The
relevant § 1983 language is as follows:
[A]ny person who, under color of any law, statute, ordinance, regulation,
custom, or usage of any State, shall subject, or cause to be subjected, any person
... to the deprivation of any rights, privileges, or immunities secured by the
Constitution of the United States, shall, any such law, statute, ordinance,
regulation, custom, or usage of the State to the contrary notwithstanding, be liable
to the party injured ....
}1Jonell, 436 U.S. at 692-93 (emphasis in original). The Comt examined the use of the word

"cause" and concluded that its inclusion suggested that Congress intended to rule out vicarious
liability for municipalities.

Id. at 692.

But "[t]he requirement of causation ... does not

generally preclude respondeat superior liability for a given tott." See Shields v. Ill. Dep 't of
Corr., 746 F.3d 782, 793 (7th Cir. 2014) (parsing the meaning of lvlonell and questioning the

correctness of Tsao). Moreover, the discussion of legislative history strongly suggests that the

PAGE 3 - OPINION AND ORDER

i\1onell Court found the statutory text ambiguous. See BedRoc Ltd., LLC v. United States, 541

U.S. 176, 186 (2004) ("Because we have held that the text of the statutory reservation
[unambiguous], we have no occasion to resort to legislative history.").

This ambiguity is

important because the legislative history on which the Court relied addressed only
municipalities, not private entities contracting with municipalities. See lvfonell, 436 U.S. at 69293 & n.57. Indeed, neither Congress (in drafting § 1983) nor the Court (in deciding }Jonell)
discussed the liability of such private entities. See Tsao, 698 F.3d at 1138-39.
Like other circuits, the Tsao comt cited the textual analysis put forth in J\!Jonell for why
municipalities ought to remain free from vicarious liability. The court relied on this as suppmt
for its decision to extend the municipal exemption to private corporations. Id. The Tsao court
and others reasoned that because private entities are no more a "cause" of an injury inflicted by
its employee than a municipality would be regarding its employee, and because the Comt in
lvfonell exempted municipalities from respondeat superior liability, the same exemption ought to

extend to private entities. Tsao, F.3d at 1138.
This reasoning elides what should be a straightforward presumption about municipalities
and the private entities that work for them. They are different. And because the text of§ 1983 is
ambiguous and the legislative history inapplicable to private entities, there are additional
considerations that should be addressed before closing the door to respondeat superior liability
for those entities. First, respondeat superior liability serves to deter accidents by holding an
employer accountable for every action taken by its employees - not just those found in a written
policy. lvfonell, 436 U.S. at 693. In theory, greater accountability encourages better policies and
avoids accidents in the first place. Second, respondeat superior liability serves to diffuse the
cost of an accident from a single employee to the entity as a whole; this allows for greater

PAGE 4 - OPINION AND ORDER

recovery by the plaintiff and a less severe impact on a single defendant. Id. The }Jonell Court
acknowledged these considerations, but nevertheless held that respondeat superior liability shall
not apply against municipalities. Id.
When applied to private entities, the above considerations provide plaintiff with a
convincing argument. First, respondeat superior liability may deter more in the private context
than it would for a government body like the Lincoln County jail, which is ethically bound "to
serve its community by providing a safe, secure facility. " 1 Private contractors are driven by a
profit interest, and cutting the frequency or quality of service is a common way for companies to
achieve that interest. That the present case emerges in the jail context is of special significance;
a 2016 audit of private prisons by the Inspector General for the U.S. Depmiment of Justice
concluded that contract prisons "incurred more safety and security incidents per capita than
comparable [Bureau of Prisons] institutions" and more frequently used special (segregated)
housing units for improper purposes. 2 Second, respondeat superior liability is not paid for by
taxpayers in the private context, an impo1iant difference that would weigh in favor of an
exemption for municipalities. Whereas this liability creates a public concern when the cost
comes out of a public budget, this concern is lessened when the liability belongs to the
contractor. With a private actor, vicarious liability would appear to work as it should, ensuring
recovery for the plaintiff while dispersing the cost between a lone defendant and his or her
employer, for whom that cost represents a smaller fraction of resources.

LINCOLN COUNTY SHERIFF'S OFFICE, http://www.co.lincoln.or.us/sheriffi'page/jailinmate-info (last visited July 18, 2017).
I

2

See OFFICE OF THE INSPECTOR GENERAL, REVIEW OF THE FEDERAL BUREAU OF PRISONS'
MONITORING
OF
CONTRACT
PRISONS
11-111
(2016),
available
at
https://oig.justice.gov/repmis/2016/e 1606.pdf.

PAGE 5 - OPINION AND ORDER

Beyond these considerations are two observations about how § 1983 and vicarious
liability apply to private entities generally. First, for qualified immunity claims under § 1983,
the Supreme Court has distinguished between municipal employees and those who work for
private entities; there is no immunity for employees of private entities that happen to perform
state functions. See Richardson v. J\IcKnight, 521 U.S. 399, 412 (1997) (noting that qualified
immunity is not available to employees of private prisons). Second, respondeat superior is a
theory of liability that "has been well-settled in the law of agency for perhaps as long as 250
years." Kerl v. Dennis Rasmussen, Inc., 682 N.W.2d 328, 334 (Wis. 2004). It is liability "of
general applicability in to1i law." Barbara Kritchevsky, Civil Rights Liability ofPrivate Entities,
26 Cardozo L. Rev. 35, 61 (2004). That Central Coast and Samaritan suddenly escape liability
here, when their affiliations may well have warranted liability outside the lYJonell context,
presents an obvious question of fairness.
Looking beyond the ambiguous text and to the factors stated above, § 1983 should be
construed to permit respondeat superior claims against private entities that contract with
municipalities. However, I am bound to follow Tsao so long as it remains the law of this circuit.
I therefore must grant defendants' motion.
CONCLUSION

Defendants' motion to dismiss (doc. 51) is GRANTED. Plaintiffs first claim for relief is
dismissed with respect to Central Coast and Samaritan. Plaintiffs request for oral argument is
denied as unnecessary.
IT IS SO ORDERED.
Dated thisD<rJ'~>of July 2011.
Ann Aiken

United States District Judge
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