Nordenstrom v. Corizon Health, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

BRENDA KAY NORDENSTROM, No. 3:18-cv-01754-HZ

as personal representative for the Estate

of Bryan Perry, Deceased; and OPINION & ORDER

BRENDA KAY NORDENSTROM,

an individual,

Plaintiff,

v.

CORIZON HEALTH, INC., a

Tennessee Corporation;

CLACKAMAS COUNTY, an Oregon

County; and individuals JANA RACKLEY,

CAMILLE VALBERG,

NADIA PETROV,

ALEX SALAZAR, M.D.,

SHAWN SHULTZ, BENJAMIN

LEFEVER, MATT SAVAGE, RICKY PAURUS,

LACEY SANDQUIST,

RICHARD TAYLOR, NICK

JOHNSON, MATRONA

SHADRIN, and JOHN DOES

1-10, in their personal capacities.

Defendants.

William C. Stavley

434 NW 19th Avenue

Portland, OR 97209

John T. Devlin

Devlin Law, P.C.

1212 SE Spokane St.

Portland, OR 97202

Nadia H. Dahab

Sugerman Law Office

707 SW Washington Street, Ste. 600

Portland, OR 97205

John M. Coletti, III

Paulson Coletti

1022 NW Marshall Street, Unit 450

Portland, OR 97209

Attorneys for Plaintiff

Anne M. Talcott

Kathryn E. Kelly

Stephanie Corey Holmberg

Schwabe Williamson & Wyatt

1211 SW 5th Avenue, Suite 1900

Portland, OR 97258

Scott C. Ciecko

Clackamas County Counsel

Public Services Bldg

2051 Kaen Road

Oregon City, OR 97045

Vicki M. Smith

Bodyfelt Mount, LLP

319 SW Washington Street, Suite 1200

Portland, OR 97204

Attorneys for Defendant

HERNÁNDEZ, District Judge:

Bryan Perry died while in the custody of Clackamas County on November 3, 2016. His

mother, Plaintiff Brenda Nordenstrom, brings claims for inadequate medical care under 42

U.S.C. § 1983 against individual Clackamas County deputies and sergeants, and Corizon Health,

Inc. nurses on duty during the time Mr. Perry was in custody as well as their supervisors.

Plaintiff also brings Monell and negligence claims against Clackamas County (the County) and

Monell, negligence, and gross negligence claims against Corizon Health, Inc. (Corizon), a

private contractor responsible for the provision of medical services at Clackamas County Jail.

Defendant Clackamas County moves for summary judgment on all claims against it and the

individual Clackamas County Defendants. Defendant Corizon moves for summary judgment on

all claims against it and the individual Corizon defendants, except the negligence claim. For the

reasons that follow, the Court grants in part and denies in part the parties’ motions.

BACKGROUND

I. Mr. Perry’s Arrest and Death

On November 3, 2016, the Clackamas County Interagency Taskforce performed a

controlled drug buy at Eastport Plaza. Smith Decl. Ex. B 8:24-9:5, ECF 71-1. Mr. Perry and his

girlfriend, Ms. Mountsier, happened to be at Eastport Plaza during the buy. Id. at 9:13-18. Mr.

Perry’s parole officer, Officer Kays, was present at the buy and recognized Mr. Perry. Id.; Smith

Decl. Ex. C 9:15-10:4, ECF 71-2. Officer Kays knew Mr. Perry had an outstanding warrant for a

parole violation. Id. Mr. Perry was arrested on the outstanding warrant. First Talcott Decl. Ex. 3

at 1, ECF 15. Ms. Mountsier was also arrested on an outstanding warrant. Id.

Officer Fromme volunteered to transport Mr. Perry to the Clackamas County Jail. Smith

Decl. Ex. C 8:8-9. Before the ride, he did not notice that Mr. Perry was impaired or intoxicated.

Id. at 11:9-10, 12:3-5. Mr. Perry sat in the front seat next to Officer Fromme. Id. at 12:8-11. At

the beginning of the ride, Mr. Perry asked Officer Fromme to roll down the window because he

was hot and had post-traumatic stress disorder. Id. at 12:20-25. During the ride, Mr. Perry’s

demeanor changed. Id. at 13:19-21. He began to move around in his seat. Id. at 13:22-14:18.

When asked by Officer Fromme, Mr. Perry said he was moving around because he was coming

down off methamphetamine, was anxious, and did not like to be handcuffed. Id. He asked to see

a doctor when he arrived to get the medication he needed for his post-traumatic stress disorder.

Id. at 15:1-11. During the drive, another officer pulled up next to Officer Fromme’s vehicle and

noted Mr. Perry’s body movements and change in demeanor. Smith Decl. Ex. B 14:9-16.

Mr. Perry arrived at the Clackamas County Jail at 7:12 pm. First Talcott Decl. Ex. 3 at 2.

He managed to walk on his own from Officer Fromme’s patrol car into the jail’s intake area.

Dahab Decl. Video 1, 0:00-00:24, 01:01-01:07, ECF 94.1 At intake, his body continued to move

and jerk involuntarily requiring the intake officers to retrieve a chair for him to sit in while they

searched him. Id. at 03:33. During intake, one officer placed his hands on Mr. Perry’s shoulders

in an apparent effort to steady him, while the other officer continued the pat down. Id. at 03:50.

Throughout this time, Mr. Perry involuntarily kicked his legs, arched his back, and threw his

head back, among other movements. Id. at 03:33-05:25. One intake officer described his speech

as “barely coherent.” Stavley Decl. Ex. R at 10, ECF 95-17. Mr. Perry reported to the officers

that he had taken methamphetamines, bath salts, and heroin. Id.

Office Shultz conducted Mr. Perry’s classification and mental health screeners at intake.

First Smith Decl. Ex. F 43:7-18, ECG 71-5. The screeners have 86 questions related to health

1 From this point on, citations to “Video” refer to the videos referenced in the Dahab Declaration

available at ECF 94.

and mental health. First Stavley Decl. Ex. O at 13, ECF 95-14. Officer Shultz testified that on

busy shifts it is his practice to answer “no” to all the questions on the forms and then later change

them to “yes.” Id. at 46:1-6. On Mr. Perry’s form, Officer Shults wrote, “yes” to “Signs of being

under the influence of alcohol/drugs” and “Current mental health needs.” Id. at 13-15. He wrote

“no” to all other questions including, “Signs of alcohol/drugs withdrawals/sweating/ needle

marks/tremulousness/hallucinations,” “Current substance abuse needs,” “Current medical

problem that nursing needs to be aware of (ie, Diabetes),” “Needs to be seen by a nurse,” and

“Under the influence of drugs/alcohol.” Id. Sergeant Taylor signed off on the screening forms.

Id. at 3.

After the intake process, multiple officers assisted Mr. Perry to a padded high-security

cell around 7:20 pm. Video 2; First Smith Decl. Ex. H 17:17-20, ECF 71-7. Mr. Perry continued

to exhibit uncontrollable body movements including clutching at his head and stomach. Video 3.

At 7:40 pm, a group of four deputies gathered outside Mr. Perry’s cell observing him and making

comments to one and other. Video 4, 00:47-03:10. Deputy Shadrin took a video of Mr. Perry on

her cell phone. Video 5. The video captures Mr. Perry moaning, yelling, writhing, and twisting

his body uncontrollably. Id. It also recorded the following conversation between the deputies

observing Mr. Perry.

Deputy Sandquist: “You don’t think this needs to, like, go to the school as, like,

the new DARE?”

Deputy James Murphy: “Can we just take him and put him in front of a class?”

Deputy Sandquist: “That would be fantastic.”

Deputy Paurus: “And you can just wheel him in in a cage and wheel him back

out.”

Deputy Sandquist: “Oh my god, what is that?”

Deputy Sandquist: “Just let him sit there for like 10 minutes, and then ‘Don’t do

drugs,’ and then wheel him back out. That’s it.”

Deputy Paurus: “You’d be like, look what I brought for show and tell today.”

Deputy Sandquist: “Yeah and then one kid, ‘That’s my dad.’”

Deputy Paurus: “That’s awful. I mean, that’s absolutely awful.”

Deputy Shadrin: “There’s no face shots. You should go show this to his girlfriend,

like, ‘You love this?’”

Id. 5:00–52.

At some point prior to 7:48 pm, Sergeant Taylor told Nurse Rackley that Mr. Perry

needed to be seen. Smith Decl. Ex. O 74:5-10, ECF 71-12. Sergeant Taylor was the booking

sergeant on duty at that time. Smith Decl. Ex. E at 7, ECF 71-4. During this conversation

Sergeant Taylor and Nurse Rackley observed Mr. Perry from outside the cell and then went to

get Ms. Mountsier to attempt to learn what drugs Mr. Perry had taken. First Talcott Decl. Ex. 3 at

13; Smith Decl. Ex. O 74:14-75:2.

At 7:55 pm, Nurse Rackley entered Mr. Perry’s cell to examine him. Video 6. Prior to her

entry, the video shows Mr. Perry continuing to writhe uncontrollably on the floor of the cell. Id.

Four deputies restrained him while Nurse Rackley attempted to take his vital signs. Id. Nurse

Rackley obtained his heart rate (86), body temperature (98.6 degrees), and blood oxygen

saturation (91%). First Talcott Decl. Ex. 8, ECF 69-2. She did not obtain his blood pressure. First

Talcott Decl. Ex. 6 104:12–17, ECF 68-6. In her chart note, recorded forty-five minutes after she

took Mr. Perry’s vitals, Nurse Rackley wrote that Mr. Perry was “visibly out of control, flopping

all over” and that he was “clearly out of breath and breathing rapidly.” First Talcott Decl. Ex. 8.

She noted that she planned to reassess him in an hour. Id.

Deputies started a water log for Mr. Perry and brought him a cup of water. Stavley Decl.

Ex. J at 13, ECF 95-9. Over the next hour, deputies conducted six visual checks on Mr. Perry and

nursing staff conducted one. First Talcott Decl. Ex. 3 at 3.

At 9:17 pm, Nurse Rackley conducted her second examination of Mr. Perry. Video 8 at

01:03. She took Mr. Perry’s vital signs, including his blood pressure, and appeared to document

the readings on her arm. Id. at 02:50, 03:11. Nurse Rackley did not record her notes from this

visit for two days. First Talcott Decl. Ex. 9, ECF 69-3. She recorded his blood pressure as 90/52,

heartrate as 97, and oxygen saturation as 91-92%. Id. She noted that he was responding better

both physically and cognitively. Id. The video shows Mr. Perry’s movements slowing down at

this point. Video 8. He sits on the bench, hunched forward grabbing at his arms, legs, and head

while rocking back and forth. Id.

Over the next two hours, deputies conducted eight visual checks on Mr. Perry and

nursing staff conducted three. First Talcott Decl. Ex. 3 at 3. The visual checks conducted

throughout the night lasted anywhere from half a second to ten seconds. Video 11.

At the end of her shift, Nurse Rackley informed the on-coming nurse, Nurse Valberg, that

she should see Mr. Perry in one hour. First Talcott Decl. Ex. 10 74:20–22, ECF 15. She also told

her that he was stable and improving. Id. at 75:6–9.

At 11:17 pm, Nurse Valberg entered Mr. Perry’s cell to examine him. Video 10. The

video shows Mr. Perry lying on his back and moving his mouth. Id. at 00:02. A deputy then

moved him into a seated position which he could not maintain on his own. Id. at 00:16 Mr. Perry

was then slumped against the wall with his chin resting on his chest. Nurse Valberg examined

him while he was in this position. Id. at 02:30-03:35. Mr. Perry appears to stop moving during

Nurse Valberg’s examination. Id. A deputy stated that at this point Mr. Perry’s “breath started

slowing” and that he “was foaming at the mouth.” Stavley Decl. Ex. R at 10, ECF 95-17. After a

minute of trying to get Mr. Perry’s blood pressure using a manual cuff, Nurse Valberg left the

cell. Video 10 at 03:35. Mr. Perry remained motionless. Id. The deputies in the cell then moved

Mr. Perry’s body so that it was lying flat on the bench in the cell. Id. at 03:50. Nurse Valberg

returned with an automated blood pressure cuff. Id. at 4:06. According to a deputy in the cell, at

this point, “it appeared his breathing had stopped.” Stavley Decl. Ex. R at 10. Nurse Valberg

used the automated blood pressure cuff to attempt to take Mr. Perry’s blood pressure, and then

began to rub Mr. Perry’s chest with one hand. Video 10, 04:50. Before this, a deputy asked

Nurse Valberg if they should start CPR and get the AED. Stavley Decl. Ex. R at 10. Mr. Perry

did not move his body this entire time. Id. At 11:23, No lifesaving measures were initiated in the

intervening two minutes and ten seconds.

AED pads were then placed on Mr. Perry’s chest. Video 10, 06:09. At 11:23:34, the

deputies re-positioned the AED pads on Mr. Perry’s chest. Id. at 06:36. At 11:23:51, a deputy

began chest compressions. Id. at 06:53. It then appears that Nurse Valberg instructed the deputy

to stop compressions as she looked at the AED. Id. at 07:10. At 11:24:25 Nurse Valberg left the

cell, and the deputies began CPR. Id. at 07:27. At 11:30, Clackamas Fire arrived and took over

CPR. First Talcott Decl. Ex. 3 at 4. Mr. Perry was then transported to the hospital where he was

declared dead. Id.; First Talcott Decl. Ex. 11, ECF 68-10.

II. Clackamas County’s Relationship to Corizon

In 2011, the County contracted with Corizon to provide health care in the Jail. Am.

Compl. ¶ 21. The County and Corizon signed a Renewal Health Services Agreement

in August 2015 with a term through June 30, 2018. Smith Decl. Ex. A at 5, 16, ECF 75-1. The

parties’ original contract required Corizon to comply with National Commission on Correctional

Health Care (NCCHC) standards. Supp. Stavley Decl. Ex. A at 59:22-60:9, ECF 96-1. In 2014,

the parties amended the Agreement so that Corizon was no longer required to comply with

NCCHC standards for staffing. Supp. Stavley Decl. Ex. A at 61:5-9; Id. at 69. Clackamas County

also testified that issues with intake screening prevented Corizon from meeting the requirements

of NCCHA. Id. at 60:17-22. At some point prior to 2016, Corizon made a request to Clackamas

County for more nursing staff to address workload issues with intake. Id. at 62:18-63:14.

Clackamas County denied the request. Id.

III. Corizon’s Intake/Receiving Screening Process

Corizon staff are to conduct intake/receiving screenings on all inmates booked into the

jail. Talcott Reply Decl. Ex. 11 at 1, ECF 105. The screening is meant to be “a comprehensive

assessment and medical history to identify and address emergent, urgent, and chronic health

needs of an incoming inmate to the jail.” Def. Corizon Am. Reply at 11. Corizon relies on its

General Health Services Policy & Procedure J-E-02.00 (Health Services Policy) and its Core

Process Program module on Intake/Receiving Screenings to train its employees on intake

screening. Talcott Reply Decl. Exs. 4, 6. The Health Services Policy incorporates NCCHC

standards. Talcott Reply Decl. Ex. 6 at 1. The Health Services Policy states that “Persons who

are . . . severely intoxicated, in alcohol or drug withdrawal or otherwise urgently in need of

medical attention are: a. Referred immediately for care and medical clearance into the facility.”

Id. It also requires that intake screenings be “performed on inmates upon arrival” and “prior to

the patient being housed in the facility.” Id. at 1, 3. Clackamas County and Corizon’s Health

Services Agreement states that “[a]ll individuals brought into the Facility shall be given a

receiving screening by Corizon Health personnel within four (4) hours of admission to the

Facility.” Talcott Reply Decl. Ex. 11 at 1.

Corizon has “Fit for Confinement Guidelines” specific to Clackamas County Jail. Stavley

Decl. Ex. B at 12, ECF 95-1. The Guidelines are meant to identify “health conditions that may

require medical clearance by a physician prior to the individual’s acceptance into the Clackamas

County Jail.” Id. (emphasis in original). “[I]mpairment with alcohol or illicit substances

rendering the individual incoherent, confused, or unable to stand or walk without assistance” is

given as an example of a condition that “may require medical clearance prior to booking.” Id.

Corizon does not dispute that Mr. Perry did not receive an intake/receiving screening from

Corizon staff on the night in question.

IV. Clackamas County’s Role in Intake Screening

As discussed above, Clackamas County Jail staff complete classification and mental

health screeners when an inmate gets booked into the jail. Stavley Decl. Ex. E 28:10-17, ECF 95-

4. This is the first step in evaluating whether an inmate can be confined at the jail. Id. at 29:9-13;

Stavley Decl. Ex. B 54:24-55:2; Ex. F 56:14-57:4, ECF 95-5. If a deputy is unsure if an inmate is

fit for confinement, they are to have medical staff come look at them. Stavley Decl. Ex. E 29:19-

30:12. Corizon and Clackamas County had a document showing that Corizon was supposed to

provide health related training to staff at the Clackamas County Jail titled, “Health Training for

Correctional Officers” “Site Name: Clackamas County Jail.” Stavley Decl. Ex. E at 77. The

procedure states that “at a minimum” jail staff should be trained in how to recognize “acute

manifestations of . . . intoxication and withdrawal.” Stavley Decl. Ex. E at 77. Clackamas County

testified that Corizon never trained its deputies on the Fit for Confinement policies and that it

also did not provide medical training to its staff on whether an inmate was fit to confine. Supp.

Stavley Decl. Ex. A Eby Dep. 12:9-13:16. Clackamas County staff were trained to look for

situations where it would be appropriate to get medical involved to do an assessment of the

inmate to determine whether they needed further medical help. Id. at 15:32-16:2.

V. Training Related to the Toxicities of Methamphetamines and Bath Salts

A. Corizon

Corizon’s Regional Director of Nursing testified that Corizon was aware of the dangers

of bath salts before 2016. Stavley Decl. Ex. B 28:24-29:4. She also testified that she was

unaware of any Corizon policy or procedure on methamphetamine intoxication or withdrawal but

that she did remember that she had seen a protocol that had the word methamphetamine. Id. at

29:5-25. Corizon’s Regional Medical Director testified that medical staff in the jail, “should be

trained about the effects of methamphetamine and bath salts, and they should be aware of it, and

should know what signs and symptoms to look for.” Stavley Decl. Ex. D 36:21-24, ECF 95-3.

He also stated that he was unaware of a company wide policy on the hazards of bath salts. Id. at

80:16-19. Nurses Rackley, Valberg, Petrov, and Cronin all testified that they either did not

receive or did not remember receiving training on the dangers of bath salts. Stavley Decl. Ex. F

140:23-25; Ex. G 166:11-23, ECF 95-6; Ex. E 89:18-23; Ex. C 53:13-16, ECF 95-2. Nurse

Cronin testified that she did not remember receiving training on methamphetamine overdose and

withdrawal. Stavley Decl. Ex. C 53:8-12.

In 2016, Corizon’s clinical standard operating procedures on substance abuse withdrawal

provided specific direction on alcohol, opioids, and benzodiazepines, but did not provide

direction on methamphetamine or bath salts. Stavley Decl. Ex. D at 13-21. It did provide general

guidance on identifying common signs and symptoms of withdrawal, some of which matched

Mr. Perry’s presentation. Id.

In 2013, Corizon developed a briefing for correctional officers on the danger of bath

salts. Stavley Decl. Ex. A at 16. It describes the risks of bath salts and states that “[t]he risk of

overdose is very high,” and “[m]any people have died from using bath salts.” Id. It appears that

Clackamas County had this briefing in its possession in 2018, two years after Mr. Perry’s death.

Id. at 15.

//

//

B. Clackamas County

Sergeant Johnson testified that in 2016 it was becoming increasingly common for inmates

to say that they had taken both bath salts and methamphetamine. Stavley Decl. Ex. J 50:11-15.

Other jail staff testified that they often encountered people on methamphetamine and to some

extent bath salts. Stavley Decl. Ex. I 12:22-1, 23:11-12, ECF 95-8; Ex. M 9:12-16, ECF 95-12.

Multiple jail staff confirmed that Clackamas County provides training on intoxication

generally but did not recall any training specific to methamphetamine or bath salts. Stavley Decl.

Ex. A 27:12-18; Ex. I 23:16-23; Ex. L 11:1-10, ECF 95-11; Ex. R 10:5-9, ECF 95-17. Deputy

Shultz testified that he received training on methamphetamine and withdrawal but could not

remember specific training on bath salts. Stavley Decl. Ex. O 12:2-13:3. Sergeant Johnson

testified that he received training that methamphetamine intoxication can be life threatening.

Stavley Decl. Ex. J 15:17-22.

EVIDENTIARY OBJECTIONS

Defendant Clackamas County moves to exclude or strike portions of Plaintiff’s expert

declarations. The Court relies on Plaintiff’s expert declarations sparingly and does not consider

the evidence Defendant Clackamas County objects to in determining whether Plaintiff has raised

a question of fact concerning Defendant's conduct. The Court thus declines to rule on whether

this evidence is admissible for proving Plaintiff’s claims or should be stricken as prejudicial and

unhelpful.

Plaintiff moves to strike as inadmissible the Clackamas County Individual Defendant’s

Declaration of Gretchen Miller. Similarly, the Court does not consider this Declaration in

making its findings and declines to rule on its admissibility at this time.

//

STANDARDS

I. Summary Judgment

Summary judgment is appropriate if there is no genuine dispute as to any material fact

and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The

moving party bears the initial responsibility of informing the court of the basis of its motion, and

identifying those portions of “‘the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any,’ which it believes demonstrate the

absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)

(quoting former Fed. R. Civ. P. 56(c)).

Once the moving party meets its initial burden of demonstrating the absence of a genuine

issue of material fact, the burden then shifts to the nonmoving party to present “specific facts”

showing a “genuine issue for trial.” Fed. Trade Comm’n v. Stefanchik, 559 F.3d 924, 927–28

(9th Cir. 2009) (internal quotation marks omitted). The nonmoving party must go beyond the

pleadings and designate facts showing an issue for trial. Bias v. Moynihan, 508 F.3d 1212, 1218

(9th Cir. 2007) (citing Celotex, 477 U.S. at 324).

The substantive law governing a claim determines whether a fact is material. Suever v.

Connell, 579 F.3d 1047, 1056 (9th Cir. 2009). The court draws inferences from the facts in the

light most favorable to the nonmoving party. Earl v. Nielsen Media Rsch., Inc., 658 F.3d 1108,

1112 (9th Cir. 2011). If the factual context makes the nonmoving party’s claim as to the

existence of a material issue of fact implausible, that party must come forward with more

persuasive evidence to support its claim than would otherwise be necessary. Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

“Summary judgment is improper where divergent ultimate inferences may reasonably be

drawn from the undisputed facts.” Fresno Motors, LLC v. Mercedes Benz USA, LLC, 771 F.3d

1119, 1125 (9th Cir. 2014) (internal quotation marks omitted); see also Int’l Union of

Bricklayers & Allied Craftsman Local Union No. 20, AFL-CIO v. Martin Jaska, Inc., 752 F.2d

1401, 1405 (9th Cir. 1985) (“Even where the basic facts are stipulated, if the parties dispute what

inferences should be drawn from them, summary judgment is improper.”).

II. Qualified Immunity

The Individual Clackamas County Defendants have raised the defense of qualified

immunity. A defendant is entitled to qualified immunity if their conduct “does not violate clearly

established statutory or constitutional rights of which a reasonable person would have known.”

Harlow v. Fitzgerald¸ 457 U.S. 800, 818 (1982). The qualified immunity analysis requires a

court to address two questions: (1) whether the facts alleged or shown by the plaintiff establish a

constitutional violation and (2) whether the right at issue was clearly established at the time.

Saucier v. Katz, 533 U.S. 194, 201 (2001). The right must have been clearly established at the

time of the defendant’s alleged misconduct, so that reasonable official would have understood

that what he or she was doing under the circumstances violated that right. Wilson v. Layne, 526

U.S. 603, 615 (1999). Courts have discretion in deciding which prong to address first, depending

on the circumstances of the case. Pearson v. Callahan, 555 U.S. 223, 242-43 (2009).

The Supreme Court has repeatedly admonished courts “not to define clearly established

law at a high level of generality.” Mullenix v. Luna, 577 U.S. 7, 12 (2015) (internal quotation

marks and citation omitted). “The dispositive question is whether the violative nature of

particular conduct is clearly established. This inquiry must be undertaken in light of the specific

context of the case, not as a broad general proposition.” Id. (internal quotation marks and citation

omitted, emphasis in original). Even if a right is clearly established, qualified immunity protects

an official from reasonable mistakes about the legality of his actions. Wilkins v. City of Oakland,

350 F.3d 949, 954-55 (9th Cir. 2003). The official is still entitled to qualified immunity if the

official “could have believed, ‘reasonably but mistakenly . . . that his or her conduct did not

violate a clearly established constitutional right.’” Skoog v. Cty. of Clackamas, 469 F.3d 1221,

1229 (9th Cir. 2006) (quoting Jackson v. City of Bremerton, 268 F.3d 646, 651 (9th Cir. 2001)).

“The protection of qualified immunity applies regardless of whether the government official’s

error is a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and

fact.” Pearson, 555 U.S. at 231 (internal quotation marks and citation omitted).

DISCUSSION

Defendant Clackamas County and the Clackamas County Individual Defendants move

for summary judgment on all claims against them. Corizon and the Corizon Individual

Defendants move for summary judgment on all claims against them except negligence. The

Court begins with Plaintiff’s § 1983 claims and examines them in three parts: (1) Plaintiff’s

personal liability claims against Clackamas County Individual Defendants and Corizon

Individual Defendants; (2) Plaintiff’s Monell liability claims against Clackamas County and

Corizon; and (3) Plaintiff's supervisory liability claims against Corizon Individual Defendants

Nurse Petrov and Dr. Salazar. The Court then turns to Plaintiff’s state law claims.

I. Plaintiff’s § 1983 Claims for Inadequate Medical Care

Plaintiff contends that the conduct of Clackamas County Deputies Shultz, Paurus,

Sandquist, and Shadrin and Sergeants Taylor and Johnson and the conduct of Corizon nurses

Rackley and Valberg constituted inadequate medical care in violation of the Eighth or Fourteenth

Amendment. All Defendants seek summary judgment on the merits of these claims, and the

Clackamas County Individual Defendants assert a defense of qualified immunity.

As a threshold matter the Court must decide whether the Eighth or Fourteenth

Amendment applies to Plaintiff’s § 1983 claims. “Inmates who sue prison officials for injuries

suffered while in custody may do so under the Eighth Amendment’s Cruel and Unusual

Punishment Clause or, if not yet convicted, under the Fourteenth Amendment’s Due Process

Clause.” Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1067–68 (9th Cir. 2016) (citations

omitted).

Plaintiff argues that the Fourteenth Amendment applies to her claims because Mr. Perry

was in custody on a parole violation that had yet to be adjudicated when he died and was thus

akin to a pretrial detainee. Defendants argue that Mr. Perry’s sentence to a term of incarceration

and parole included incarceration pending further hearings should a Board warrant be issued.

They thus argue that his incarceration on the night he died was a component of his original

sentence and “thus a component of his punishment for crimes of which he was duly convicted.”2

Corizon Am. Reply at 8, ECF 104.

The Court concludes that the Eighth Amendment applies to Plaintiff’s claims. Mr. Perry

was in custody on the night in question because of his original conviction and sentence. He

committed no other alleged crime. Thus, “[h]is original conviction is the authority under which

he was confined after his parole violation” and supplied the basis for his punishment. Flores v.

Mesenbourg, No. 95-17241, 1997 WL 303277, at *1 (9th Cir. June 2, 1997) (unpublished

opinion). As a “convicted prisoner” the Eighth Amendment applies to his claim. Id.; see also

2 In their briefing the parties use the term parole. The Court notes that the record does not

establish whether Mr. Perry was arrested on a parole violation or a violation of a condition of

post-prison supervision.

Flores v. Cty. of Fresno, No. 119CV01477DADBAM, 2020 WL 4339825, at *3 (E.D. Cal. July

28, 2020); Jensen v. Cty. of Los Angeles, No. CV1601590CJCRAO, 2017 WL 10574058, at *7

(C.D. Cal. Jan. 6, 2017); Clarke v. Okafor, No. CV 11-6129-FMO RNB, 2014 WL 2039440, at

*8 (C.D. Cal. May 9, 2014) (finding the same).

The government has an “obligation to provide medical care for those whom it is

punishing by incarceration” and failure to meet that obligation can constitute an Eighth

Amendment violation cognizable under 42 U.S.C. § 1983. Estelle v. Gamble, 429 U.S. 97, 103–

05 (1976). In order to prevail on an Eighth Amendment claim for inadequate medical care, a

plaintiff must first “objectively show that he was deprived of something ‘sufficiently serious.’”

Foster v. Runnels, 554 F.3d 807, 812 (9th Cir. 2009) (quoting Farmer v. Brennan, 511 U.S. 825,

834 (1994)). “A deprivation is sufficiently serious when the prison official’s act or omission

results ‘in the denial of the minimal civilized measure of life’s necessities.’” Id.

Next, the plaintiff must show that the defendant’s response to the need was deliberately

indifferent. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (citation omitted).“To satisfy this

subjective component of deliberate indifference, the inmate must show that prison officials

‘kn[e]w [ ] of and disregard[ed]’ the substantial risk of harm, but the officials need not have

intended any harm to befall the inmate; ‘it is enough that the official acted or failed to act despite

his knowledge of a substantial risk of serious harm.’” Lemire v. California Dep't of Corr. &

Rehab., 726 F.3d 1062, 1074 (9th Cir. 2013) (quoting Farmer, 511 U.S. at 837). “[D]eliberate

indifference to medical needs may be shown by circumstantial evidence when the facts are

sufficient to demonstrate that a defendant actually knew of a risk of harm.” Lolli v. Cty. of

Orange, 351 F.3d 410, 421 (9th Cir. 2003) (citing Farmer, 511 U.S. at 842).

Finally, plaintiffs alleging deliberate indifference must also demonstrate that the

defendants' actions were both an actual and proximate cause of their injuries. Lemire, 726 F.3d at

1074.

A. Individual Clackamas County Defendants

Plaintiff brings Eighth Amendment claims for inadequate medical care against Deputies

Shultz, Paurus, Sandquist, and Shadrin and Sergeants Taylor and Johnson.3 All Defendants seek

summary judgment on the merits of the claims and assert a defense of qualified immunity.

i. Deputy Shultz

Plaintiff asserts that by allowing Mr. Perry to be admitted to the jail, Deputy Shultz acted

in reckless disregard of his right to adequate medical care while in custody. Defendant Shultz

argues that he was not subjectively aware of the risk of serious harm to Mr. Perry and that he did

not cause Mr. Perry’s death.

It is undisputed that Deputy Shultz failed to accurately complete the intake screener. See,

e.g., Smith Decl. Ex. F at 48:3–18. To prevail, however, Plaintiff must provide evidence that

Deputy Shultz’s conduct was the actual and proximate cause of Mr. Perry’s death. Plaintiff has

not made such a showing. “Traditional tort law defines intervening causes that break the chain of

proximate causation.” Van Ort v. Est. of Stanewich, 92 F.3d 831, 837 (9th Cir. 1996) (citing

Prosser and Keeton on Torts § 44, at 312 (5th ed.1984)). The Ninth Circuit applies this analysis

to § 1983 actions. Id.

Despite Deputy Shultz’s lack of care in completing the intake screener, Sergeant Taylor,

the booking Sergeant on duty, ensured medical staff saw Mr. Perry. Consequently, medical staff

3 Plaintiff conceded her claims against Deputy Lefever and Deputy Savage. Oral Arg. Tr. 61:9-

12.

did not rely on the inaccurate intake form to triage Mr. Perry, and it did not prevent medical staff

from evaluating him. Therefore, Sergeant Taylor ensuring medical staff visited Mr. Perry was a

superseding intervening cause that broke the chain of causation for Deputy Shultz and relieves

him of liability under the Eighth Amendment. The Court grants Deputy Shultz summary

judgment on the claim against him.

ii. Deputies Paurus, Sandquist, and Shadrin

Plaintiff argues that Deputies Paurus, Sandquist, and Shadrin were deliberately

indifferent to Mr. Perry’s serious medical needs. Defendants argue that they did not have

subjective knowledge of the risk to Mr. Perry, were not deliberately indifferent, and were not the

cause of Mr. Perry’s death.

The record suggests that there is at least a question of fact as to whether these deputies

had the requisite knowledge and were deliberately indifferent to Mr. Perry’s serious medical

needs. Deputies Paurus, Sandquist, and Shadrin stood by and watched Mr. Perry amid an obvious

medical crisis. In the video he can be seen writhing around his cell, moaning, and calling out at

points. The conversation between the deputies shows that they were subjectively aware of the

exceptional nature of his condition and risks to his health. Deputy Shadrin also observed Mr.

Perry near the time he was arrested and noted the significant change in his condition. Stavely

Decl. Ex. N 11:7-24. She testified that his behavior was bizarre and unlike anything she had seen

before in Multnomah and Washington County. Id.

Despite this awareness, the deputies did not take measures to ensure Mr. Perry was safe

and nothing in the record suggests that they failed to act because they already knew that medical

help was on the way.

There is no way to know if an early intervention on the part of these deputies could have

saved Mr. Perry’s life. However, failing to act can be enough to establish causation. The Ninth

Circuit has held that “direct causation by affirmative action is not necessary: ‘a prison official

may be held liable under the Eighth Amendment if he knows that inmates face a substantial risk

of serious harm and disregards that risk by failing to take reasonable measures to abate it.’”

Castro, 833 F.3d at 1067 (quoting Clem v. Lomeli, 566 F.3d 1177, 1182 (9th Cir. 2009) (ellipsis

omitted) (emphasis in original). Viewing the evidence in the light most favorable to Plaintiff, a

reasonable juror could conclude that Deputies Paurus, Sandquist, and Shadrin were aware of the

serious risk to Mr. Perry’s life and failed to take reasonable measures to abate it. The Court

denies Deputies Paurus, Sandquist, and Shadrin summary judgment on the claims against them.

iii. Sergeants Taylor and Johnson

Plaintiff argues Sergeants Taylor and Johnson were deliberately indifferent to Mr. Perry’s

serious medical needs. Defendants argue that there is no evidence that they were subjectively

aware of the risk to Mr. Perry’s serious medical needs or that they chose to consciously disregard

that risk.

Sergeant Taylor observed Mr. Perry in-person when Officer Fromme brought him into

the jail. Smith Decl. Ex. E 38:2-7. Sergeant Taylor also signed off on the inaccurate intake

screener conducted by Officer Shultz. However, from that point on, Sergeant Taylor worked to

ensure that medical staff attended to Mr. Perry. Sergeant Taylor sought out Nurse Rackley and

asked her to evaluate Mr. Perry. He then went with her to speak with Ms. Mountsier to learn

more about what drugs Mr. Perry had consumed. Sergeant Taylor also started a water log for Mr.

Perry.

Sergeant Johnson also worked to ensure Mr. Perry was evaluated by medical staff.

Sergeant Johnson first observed Mr. Perry at in take over the Jail’s video monitoring system.

Smith Decl. Ex. E at 7. After Ms. Mountsier’s condition deteriorated and she was transferred to a

hospital, Sergeant Johnson went to Nurse Rackley and asked her to check on Mr. Perry again. Id.

at 8. Nurse Rackley reported to Sergeant Johnson that Mr. Perry appeared to be improving. Id.

Once the nurses changed shifts, Sergeant Johnson went to Nurse Valberg to verify that she was

aware of Mr. Perry’s condition and planned to do another check on him. Id. He also checked on

Mr. Perry personally at least twice during the late evening. Id.

The record suggests that Sergeants Taylor and Johnson were aware Mr. Perry was at risk

of having a serious medical emergency and were concerned that his condition could deteriorate

but repeatedly deferred to medical staff. This is not a case in which the inmate was left to

languish alone in his cell. Rather, Sergeants Taylor and Johnson put in place a system to monitor

Mr. Perry and relied on the opinion of the Jail’s medical provider. Whether that reliance was

objectively reasonable or constituted negligence is a question the jury will need to answer. But,

for an Eighth Amendment claim, Plaintiff’s evidence is insufficient to create a question of fact as

to whether Sergeants Taylor and Johnson were deliberately indifferent to Mr. Perry’s serious

medical needs. The Court grants Individual Defendants Taylor and Johnson summary judgment

on the claims against them.

iv. Qualified Immunity

As discussed above, the Court finds that Plaintiff has created a question of fact as to

whether Deputies Paurus, Sandquist, and Shadrin violated Mr. Perry’s Eighth Amendment rights.

For the purposes of the qualified immunity analysis, the Court will consider whether the right at

issue here was clearly established on November 3, 2016. “To determine whether [an officer]

violated clearly established law, we look to cases relevant to the situation [the officer]

confronted, mindful that there need not be a case directly on point.” A.K.H. rel. Landeros v. City

of Tustin, 837 F.3d 1005, 1013 (9th Cir. 2016) (internal quotation marks and citation omitted).

And, while there need not be a case directly on point, “existing precedent must place the

lawfulness of the particular [action] beyond debate,” for which “a body of relevant case law is

usually necessary.” City of Escondido v. Emmons, ___U.S.___, 139 S. Ct. 500, 504 (2019)

(internal quotation marks and citation omitted). This is “an objective examination of whether

established case law would make clear to every reasonable official that the defendant's conduct

was unlawful in the situation he confronted.” Sandoval v. Cty. of San Diego, 985 F.3d 657, 678

(9th Cir. 2021) (citing Horton, 915 F.3d at 600–602) (emphasis in original).

To defeat qualified immunity, Plaintiff must show that, given the case law available at the

time, a reasonable jail deputy, knowing what these three deputies knew, would have understood

that failing to ensure Mr. Perry had adequate medical care “presented such a substantial risk of

harm to [Mr. Perry] that the failure to act was unconstitutional.” Id. (citing Horton, 915 F.3d at

600). Before 2016, it was “clearly established that officers could not intentionally deny or delay

access to medical care.” Clement v. Gomez, 298 F.3d 898, 906 (9th Cir. 2002) (citing Estelle,

429 U.S. at 104–05). The Ninth Circuit recently analyzed cases, all decided before 2016, where

prison officials denied, delayed, or intentionally interfered with needed medical treatment.

Sandoval, 985 F.3d at 680. It synthesized the rule from these cases as follows: “a prison official

who is aware that an inmate is suffering from a serious acute medical condition violates the

Constitution when he stands idly by rather than responding with reasonable diligence to treat the

condition.” Id.4

Viewing the evidence in the light most favorable to Plaintiff, the Deputies knew Mr.

Perry was experiencing an exceptional reaction to a dangerous mixture of illicit drugs but failed

to summon medical help or ensure medical help was already on the way. While Plaintiff does not

cite a case addressing the specific factual circumstances of this case, the deputies are not entitled

to qualified immunity. “State officials can still be on notice that their conduct violates

established law even in novel factual circumstances’—i.e., even without a prior case that had

‘fundamentally similar’ or ‘materially similar’ facts.” Sandoval, 985 F.3d at 680 (quoting Wilk v.

Neven, 956 F.3d 1143, 1147 (9th Cir. 2020)). The delay and denial of medical care here fell

within the category of conduct prohibited by Clement v. Gomez and its progeny. Indeed, the

Ninth Circuit has found violations in less severe circumstances. See, e.g., Jett, 439 F.3d at 1097–

98 (finding a constitutional violation where a prison doctor failed to set an inmate’s fractured

thumb); Hunt v. Dental Dep't, 865 F.2d 198, 200 (9th Cir. 1989) (finding a constitutional

violation where prison officials failed to treat the plaintiff’s broken teeth and bleeding gums). A

reasonable jail deputy under the circumstances would have known that standing idly by and not

calling for medical help or ensuring medical help was on the way would amount to “an

unconstitutional failure to provide ‘life-saving measures to an inmate in obvious need.’”

Sandoval, 985 F.3d at 679. Deputies Paurus, Sandquist, and Shadrin are not entitled to qualified

immunity.

//

4 Sandoval was decided after the incident at issue here. 985 F.3d 657. The Court does not rely on

the facts in Sandoval but on the Ninth Circuit’s analysis of cases decided before Mr. Perry’s

death discussed therein.

B. Individual Corizon Defendants

The Individual Corizon Defendants, Nurse Rackley and Nurse Valberg, do not concede

that Mr. Perry had a sufficiently serious medical need. They also argue that they were not

subjectively aware of the risk to Mr. Perry’s health and did not act with deliberate indifference.5

i. Sufficiently Serious Medical Need

To prevail on an Eighth Amendment claim, a plaintiff must objectively show that the

prisoner had a medical need that was “sufficiently serious.” Farmer, 511 U.S. at 834 (internal

quotation marks omitted). “A ‘serious’ medical need exists if the failure to treat a prisoner’s

condition could result in further significant injury or the ‘unnecessary and wanton infliction of

pain.’” McGuckin, 974 F.2d at 1059 (quoting Estelle, 429 U.S. at 104). Based on the video

evidence alone, the Court finds that Plaintiff creates a question of fact as to whether Mr. Perry

suffered from an objectively serious medical need while he was held in the Clackamas County

Jail. Failure to treat his condition likely resulted in his death and Mr. Perry’s physicality and

vocalizations in the videos at least create a question of fact as to whether he was suffering and in

pain.

ii. Nurse Rackley

Plaintiff presents evidence that creates a question of fact regarding whether Nurse

Rackley had the requisite knowledge of a substantial risk of harm to Mr. Perry’s life and acted

with deliberate indifference to that risk. Nurse Rackley knew Mr. Perry had taken

methamphetamines, bath salts, and heroin. She knew Mr. Perry’s oxygen saturation levels at

both checks were below normal, described by one of Plaintiff’s experts as “extremely troubling.”

5The Individual Corizon Defendants do not assert a defense of qualified immunity.

Webster Decl. at 4. Her chart note shows that she was aware that Mr. Perry was breathing rapidly

and was out of breath. Stavley Decl. Ex. F at 18. Nurse Rackley testified that these findings

were “normal” because of his body movements. First Talcott Decl. Ex. 6 120:20-121:5. Yet,

those same body movements, according to her testimony, prevented Nurse Rackley from

obtaining a full set of vitals. Rather than escalate the situation when she was unable to obtain

critical vitals, Nurse Rackley left Mr. Perry alone and planned to re-check him later. At the

second check, Nurse Rackley obtained Mr. Perry’s blood pressure which was abnormal. Webster

Decl. at 4; Baines Decl. at 13; Thiessen Decl. at 4; Radecki Decl. at 11-12. She did not record

her chart note from this visit for over two days. Stavley Decl. Ex. F at 19.

In explaining her failure to seek a higher level of medical care for Mr. Perry, Nurse

Rackely relies heavily on her testimony that Mr. Perry’s presentation was normal and consistent

with other intoxicated inmates she had treated. First Talcott Decl. Ex. 6 at 51:22-52:2. Plaintiff

proffers evidence that creates a question of fact as to whether the severity of Mr. Perry’s

uncontrollable body movements and condition generally was exceptional even for someone

experiencing methamphetamine intoxication.

There is video evidence of Mr. Perry’s entire time in the cell. The video shows Mr. Perry

thrashing and writhing around the cell, he appears to be in obvious medical distress. His

uncontrollable movements were so severe that jail staff put him in a padded cell, had to remove

his pants, and had to pin him down to attempt to obtain his vitals. While some deputies testified

that his condition was normal, others testified that they had not seen anyone in this condition

previously. A group of four deputies gathered outside his cell to watch and film Mr. Perry

suggesting his presentation was noteworthy. Sergeants Taylor and Johnson’s actions also show

that they found his condition concerning and in need of medical attention. Plaintiff also presents

declarations from experts familiar with methamphetamine intoxication who observed the video

and concluded that Mr. Perry’s presentation was abnormal. Webster Decl. at 4; Baines Decl. at

12; Roscoe Decl. at 10.

Viewing the evidence in the light most favorable to Plaintiff, a reasonable juror could

conclude that Mr. Perry had an objectively serious medical need, that Nurse Rackley had

subjective knowledge of that need based on the information she obtained or failed to obtain in

her assessments and his obvious physical presentation, and that she acted with deliberate

indifference when she failed to seek a higher level of care for Mr. Perry. Given that Nurse

Rackley was the medical provider charged with evaluating Mr. Perry, Plaintiff also creates a

question of fact as to whether Nurse Rackley’s actions were a direct cause of Mr. Perry’s death.

The Court denies Nurse Rackley summary judgment on Plaintiff’s § 1983 claim against her.

iii. Nurse Valberg

Plaintiff creates a question of fact as to whether Nurse Valberg had the requisite

knowledge and was deliberately indifferent to Mr. Perry’s life and serious medical needs. Nurse

Valberg made the decision to send Ms. Mountsier to the emergency room. She knew Mr. Perry

had taken a similar mixture of drugs and was exhibiting similar symptoms to Ms. Mountsier.

Still, she did not call the ER to get a report on Ms. Mountsier’s condition after she was

transferred out of the jail.

Nurse Valberg conducted her assessment of Mr. Perry around 11 pm. There is video

evidence of the entire assessment. In her late entry chart note, Nurse Valberg said that Mr. Perry

sat up on his own at the start of her visit, but the video shows two deputies lifting Mr. Perry into

a seated slumped position. Nurse Valberg attempted to check his blood pressure while he was in

this position. During this check Mr. Perry stopped moving. A deputy in the cell stated at this

point Mr. Perry’s “breath started slowing” and that he “was foaming at the mouth.” Stavley Decl.

Ex. R at 10, ECF 95-17. Nurse Valberg did not begin life saving measures at this point but left

the cell to retrieve an automatic blood pressure cuff. When she returned, Mr. Perry was still

motionless lying flat on his back. Again, rather than check his vitals or call for emergency help,

Nurse Valberg attempted to use the automated blood pressure machine on Mr. Perry. At the

suggestion of a deputy, Nurse Valberg then attempted to use an AED. She delayed CPR while

she waited for it to work properly. Deputy Savage, who was in cell during the assessment

testified that in this time the “color left his body” and “he turned to a gray, kind of ashy color.”

Stavley Decl. Ex. M 25:12-15. In the incident report, Sergeant Johnson wrote that when he

arrived in the cell, around when Nurse Valberg was waiting for the AED to work, “Mr. Perry

was ashy colored and was not breathing on his own that I could tell.” Smith Decl. Ex. E. at 9. At

the apparent direction of Nurse Valberg, jail staff did not begin sustained CPR or call 911 until

approximately 5 minutes after Mr. Perry appears to stop moving in the video.

Plaintiff presents significant expert testimony that this course of treatment was medically

unacceptable. Roscoe Decl. at 10; Thiessen Decl. at 7; Radecki Decl. at 10; Webster Decl. at 3,

6. The Court finds that the very obviousness of the risk creates a question of fact as to whether

Nurse Valberg knew of the excessive risk to Mr. Perry’s life and chose this course of action in

conscious disregard of that risk.

Viewing the evidence in the light most favorable to Plaintiff, a reasonable juror could

conclude that Nurse Valberg’s inaction during what appeared to be an obvious medical

emergency amounted to deliberate indifference. The Court denies Nurse Valberg summary

judgment on Plaintiff’s § 1983 claim against her.

//

C. Monell Claims

Plaintiff alleges several Monell claims against Clackamas County and Corizon.

To prevail on a municipal liability claim under § 1983, Plaintiffs must show that a

municipal custom or policy caused the violation of their constitutional rights. Monell v. Dep’t of

Soc. Servs., 436 U.S. 658, 690 (1978) (holding that a municipality is a “person” subject to

liability under § 1983 when it causes a constitutional tort through “a policy statement, ordinance,

regulation, or decision officially adopted and promulgated by that body’s officers”). The

Supreme Court made clear that the municipality itself must cause the constitutional deprivation

and that a city may not be held vicariously liable for the unconstitutional acts of its employees

under the theory of respondeat superior. Id.; see also City of Canton v. Harris, 489 U.S. 378, 385

(1989) (requiring “a direct causal link between a municipal policy or custom and the alleged

constitutional deprivation”). The Ninth Circuit has held a plaintiff may establish municipal

liability under Monell in one of three ways: (1) the officer “committed the alleged constitutional

violation pursuant to a formal governmental policy or a longstanding practice or custom which

constitutes the standard operating procedure of the local governmental entity,” (2) “the

individual who committed the constitutional tort was an official with final policy-making

authority,” or (3) “an official with final policy-making authority ratified a subordinate's

unconstitutional decision or action and the basis for it.” Gillette v. Delmore, 979 F.2d 1342,

1346–47 (9th Cir. 1992) (citations omitted).

The Court has found that a question of fact remains as to whether a constitutional

violation occurred, so the Court analyzes each of the avenues through which Plaintiff alleges

Monell liability against Clackamas County and Corizon to determine whether they are entitled to

summary judgment on Plaintiff’s Monell claims.

i. Allegations and Theories Not in Plaintiff’s Amended Complaint

As a preliminary matter, the Court must determine which of Plaintiff’s alleged policies it

can properly consider on these motions. Plaintiff’s Amended Complaint alleges eight policies,

customs, or practices that were the moving force behind Mr. Perry’s death. In her response to

Clackamas County and Corizon’s motions for summary judgment, Plaintiff abandons some of

those alleged policies and advances new ones, along with a new Monell theory of ratification.

Although some of these alleged policies may be simple reframing or refinements of earlier

allegations, the County objects that others, particularly those that allege ratification by

Clackamas County of Corizon’s conduct, amount to new theories not alleged in the Amended

Complaint. The County contends that the Court should confine Plaintiff to the allegations in the

Amended Complaint.

It is well-established that “summary judgment is not a procedural second chance to flesh

out inadequate pleadings.” Wasco Prods., Inc., v. Southwall Techs., Inc., 435 F.3d 989, 992 (9th

Cir. 2006) (citation and internal quotations omitted); see also Navajo Nation v. U.S. Forest Serv.,

535 F.3d 1058, 1080 (9th Cir. 2008) (where “the complaint does not include the necessary

factual allegations to state a claim, raising such claim in a summary judgment motion is

insufficient to present the claim to the district court”). In her response to Clackamas County,

Plaintiff alleges the County had a policy, practice, or custom of “[f]ailing to conduct death

investigations in accordance with NCCHC standards.” Pl. Resp. at 29-30, ECF 77. Her Amended

Complaint does not reference post-death investigations. Similarly, her Amended Complaint does

not discuss or advance a theory of ratification on the part of Clackamas County. Accordingly, the

Court will not consider these avenues for Monell liability.

Clackamas County also asks the Court to disregard Plaintiff’s claims related to training

on the toxicities of methamphetamines and bath salts and a culture of indifference to the rights of

inmates. While not identical to any allegations in the Amended Complaint, the Court finds these

are sufficiently similar or a narrowing of policies, customs, and practices Plaintiff did allege in

her Amended Complaint and will consider them as bases for Monell liability.

ii. Failure to Train

Plaintiff advances two failure to train theories for Monell liability. First, Plaintiff alleges

that despite having policies that required it to do so, Corizon had a custom or practice of failing

to train its own staff and Clackamas County staff on how to properly conduct intake screenings.

She also alleges that Clackamas County had a custom or practice of not training staff on how to

properly conduct intake screenings. Second, Plaintiff alleges that Clackamas County and Corizon

had a custom or practice of failing to train staff on the toxicities of methamphetamines and bath

salts.

Monell liability can arise from a failure to train, supervise, or discipline that amounts

to an official policy of deliberate indifference to an individual’s constitutional rights. Horton ex

rel. Horton v. City of Santa Maria, 915 F.3d 592, 602–03 (9th Cir. 2019). Clackamas County and

Corizon may be liable on a failure to train or supervise theory when “in light of the duties

assigned to specific officers or employees the need for more or different training is so obvious,

and the inadequacy so likely to result in the violation of constitutional rights, that the

policymakers . . . can be said to have been deliberately indifferent to the need.” Harris, 489 U.S.

at 388–89. To demonstrate a municipality’s deliberate indifference to its inadequate training

program, the plaintiff usually must show a pattern of similar constitutional violations caused by

inadequate training. Connick v. Thompson, 563 U.S. 51, 62 (2011). “A municipality’s culpability

for a deprivation of rights is at its most tenuous where a claim turns on a failure to train.” Id. at

61 (citing Tuttle, 471 U.S. at 822–23).

Though generally insufficient, a single instance of a violation can support a Monell claim.

Benavidez v. Cty. of San Diego, 993 F.3d 1134, 1154 (9th Cir. 2021). In these “rare” cases, a

“showing of ‘obviousness’ can substitute for the pattern of violations ordinarily necessary to

establish municipal culpability.” Kirkpatrick v. Cty. of Washoe, 843 F.3d 784, 794 (9th Cir.

2016) (quoting Connick, 563 U.S. at 63). “‘[T]he unconstitutional consequences of failing to

train’ must be ‘patently obvious’ and the violation of a protected right must be a ‘highly

predictable consequence’ of the decision not to train.” Id.; see City of Canton, 489 U.S. at 390

(providing that where a “city has armed its officers with firearms[,] . . . the need to train officers

in the constitutional limitations on the use of deadly force can be said to be ‘so obvious,’ that

failure to do so could properly be characterized as deliberate indifference to constitutional

rights.”).

a. Proper Intake Screenings

Plaintiff presents the following evidence on her failure to train theory related to intake

screening. Corizon did not train Clackamas County staff on the Fit for Confinement guidelines

and Clackamas County did not train staff itself on what to look for medically when determining

whether someone was fit to confine. Plaintiff argues that this occurred despite the fact that

Clackamas County Jail staff conduct the first intake screening and make the initial fit for

confinement decision without medical staff present.

Plaintiff can establish deliberate indifference on a failure to train theory only if Corizon

and Clackamas County knew that their training was constitutionally inadequate and continued to

not train staff despite the known or obvious risk that constitutional violations would result from

the inadequate training. See Harris, 489 U.S. at 388–89. Plaintiff has not made this showing.

Plaintiff presents evidence that Clackamas County Jail had a jumbled intake and assessment

system where deputies and Corizon nurses were not clear on the role each played in assessing

and triaging inmates arriving at the jail. She shows that Corizon may have been derelict in its

duties to provide medical training to jail staff per the parties’ contract. She also shows that

Clackamas County’s training for intake staff was inadequate given its role in conducting what is

essentially an initial medical screening. However, even if Plaintiff can create a question of fact

about the adequacy of intake training, Plaintiff has produced no evidence that Clackamas County

or Corizon knew or should have known about a pattern of constitutional violations caused by the

inadequate training. See Connick, 563 U.S. at 62 (“Without notice that a course of training is

deficient in a particular respect, decisionmakers can hardly be said to have deliberately chosen a

training program that will cause violations of constitutional rights.”).

Plaintiff may establish Monell liability without showing a pattern of constitutional

violations if it was obvious to Clackamas County and Corizon that the failure to train would

lead to constitutional violations. Id. at 64. Single-incident liability is rare and found only “in a

narrow range of circumstances” where a constitutional violation is a “highly predictable

consequence of the failure to train.” Bd. of Cty. Comm'rs of Bryan Cty., Okl. v. Brown, 520 U.S.

397, 398 (1997) (herein Bryan Cty.). This is not one of the rare cases where single-incident

liability can support a failure to train theory. Plaintiff has not established a question of fact that

the inadequacy of the training was patently obvious to Clackamas County and Corizon. While a

reasonable jury might conclude that the quality of training or amount of training constituted

negligence, it was not so egregious that a resulting constitutional violation was “highly

predictable.” Consequently, the Court grants Clackamas County and Corizon summary judgment

on Plaintiff’s failure-to-train Monell claim related to proper intake screening.

b. Toxicities of Methamphetamines and Bath Salts

Plaintiff argues Corizon and Clackamas County had a custom or practice of not training

medical or correctional staff on the toxicities of methamphetamines and bath salts.

Plaintiff presents the following evidence on her failure to train theory related to the

toxicities of methamphetamines and bath salts. Corizon was aware of the dangers of bath salts at

the time of Mr. Perry’s death and that training on the dangers of bath salts was important. This is

supported by the testimony of Corizon’s Regional Medical Director at the time and the existence

of the 2013 briefing. Plaintiff also shows that despite this knowledge, at the time of Mr. Perry’s

death, there was not a clear companywide policy on the hazards of bath salts. The standard

operating procedures available to Corizon nurses working at Clackamas County Jail did not have

protocols specific to methamphetamines or bath salts. Finally, she presents evidence that nursing

staff never received training on the dangers of bath salts and did not remember receiving training

on methamphetamine overdose and withdrawal.

As to Clackamas County, Plaintiff shows that Clackamas County was aware that it was

common for inmates to have taken methamphetamines and bath salts, and at least creates a

question of fact as to whether jail staff received training on methamphetamines and bath salts.

As with the prior failure to train claim, Plaintiff does not present evidence that either

Clackamas County or Corizon knew or should have known about a pattern of constitutional

violations caused by inadequate training about methamphetamines or bath salts at Clackamas

County Jail. She only shows that both parties were aware of the risks associated with

methamphetamine and bath salt intoxication and the prevalence of both at Clackamas County

Jail. Thus, to prevail, Plaintiff must show that the “unconstitutional consequences of failing to

train” was “patently obvious” and that a constitutional violation was a “highly predictable

consequence’ of the decision not to train.” Kirkpatrick, 843 F.3d at 794.

Plaintiff cannot make this showing as to Clackamas County. While Clackamas County

staff played a role in initial intake, which at the time of Mr. Perry’s death included an initial

medical assessment, the ultimate responsibility of medical evaluations and care rested with

Corizon. While it may have been prudent for Clackamas County to ensure that its staff were

properly trained on these substances, “[m]ere negligence will not suffice to show Monell

liability.” Benavidez, 993 F.3d at 1134. The Court grants Clackamas County summary judgment

on Plaintiff’s failure-to-train Monell claim related to training on methamphetamines and bath

salts.

But, viewing the facts in the light most favorable to Plaintiff, the record shows genuine

issues of material fact that preclude summary judgment on this claim as to Corizon. Corizon was

aware that bath salts presented a significant risk of overdose and death. It had even developed

training material to that effect. Yet, Corizon did not train staff working at the time of Mr. Perry’s

death on the specific risks of bath salts and at least two nurses testified that they could not recall

training on the risks of methamphetamine overdoses and withdrawals. Additionally, the available

protocols on substance abuse withdrawal did not include specific direction on methamphetamine

or bath salts. Corizon’s Regional Medical Director testified that medical staff in the jail, “should

be trained about the effects of methamphetamine and bath salts, and they should be aware of it,

and should know what signs and symptoms to look for.” Stavley Decl. Ex. D 36:21-24. For these

reasons, a reasonable juror could conclude that the potential risk of constitutional violations by

Corizon nurses who may have lacked the knowledge to effectively assess and treat

methamphetamine and bath salt toxicity in the jail was so obvious that Corizon’s failure to

provide adequate training for their staff constituted deliberate indifference. See Bryan Cty., 520

U.S. at 409–10 (finding a “high degree of predictability may also support an inference of

causation—that the municipality's indifference led directly to the very consequence that was so

predictable”).

This case is unlike Connick where the Supreme Court held that the “[f]ailure to train

prosecutors in their Brady obligations does not fall within the narrow range of Canton's

hypothesized single-incident liability.” Connick, 563 U.S. at 64. In that case, the Court found that

given the “regime of legal training and professional responsibility, recurring constitutional

violations are not the ‘obvious consequence’ of failing to provide prosecutors with formal in-

house training about how to obey the law.” Id. at 66 (quoting Bryan Cty., 520 U.S. at 409).

Here, the Corizon nurses have an ongoing obligation to provide constitutionally adequate

medical care. This necessarily includes training on risks and conditions prevalent in the jail.

Corizon failed to provide training on substances it knew were both dangerous and commonly

seen at Clackamas County Jail. Just as the prosecutors in Connick should have received general

training in law school about Brady violations, Corizon nurses should have received general

medical training in nursing school. But there is nothing in the record that suggests this general

training covered the acute risks of methamphetamines and bath salts such that Corizon would be

relieved of its obligation to train nurses on these substances. A reasonable juror could conclude

that the lack of training on these substances resulted from Corizon’s deliberate indifference to the

rights of inmates its staff treated.

The Court also finds that Plaintiff creates a question of fact as to whether Corizon’s

failure to train on methamphetamines and bath salts was the “moving force” behind Mr. Perry’s

death. Monell, 436 U.S. at 694–95. While the failure to train was not the only cause of Mr.

Perry’s death, a reasonable juror could conclude that Nurse Rackley and Nurse Valberg’s lack of

knowledge specific to these drugs was a substantial factor in causing Mr. Perry’s death.

Indeed, a reasonable juror could conclude that Corizon’s deliberate indifference in failing to train

its staff contributed to the deliberate indifference of its nurses, as they were unable to

appropriately recognize deadly drug toxicity, withdrawal, and decompensation generally.

Accordingly, the Court denies Corizon summary judgment on this claim.

iii. Custom or Practice

Plaintiff advances three custom or practice theories for Monell liability against

Clackamas County and Corizon. They are: (1) admitting severely intoxicated people into the jail

rather than referring them to acute care, (2) having an entrenched custom of indifference to the

rights of inmates, and (3) understaffing and providing no physician supervision.

To succeed on a Monell claim based on a longstanding custom or practice, the custom or

practice “must be so ‘persistent and widespread’ that it constitutes a ‘permanent and well settled

city policy.’” Trevino v. Gates, 99 F.3d 911, 919 (9th Cir. 1996) (quoting Monell, 436 U.S. at

691); see also Villegas v. Gilroy Garlic Festival Ass'n, 541 F.3d 950, 964 (9th Cir. 2008)

(holding that municipal liability may be established “by showing ‘a longstanding practice or

custom which constitutes the standard operating procedure of the local government entity’”)

(quoting Ulrich v. City & Cnty. of San Francisco, 308 F.3d 968, 984–85 (9th Cir. 2002)). “A

single constitutional deprivation ordinarily is insufficient to establish a longstanding practice or

custom” under Monell. Christie v. Iopa, 176 F.3d 1231, 1235 (9th Cir. 1999).

//

//

a. Admitting Severely Intoxicated People into the Jail

Multiple jail staff testified that they regularly see intoxicated people at Clackamas County

jail. Stavley Decl. Ex. J at 12, Ex. L 26:9-14, Ex. M 9:12-10:4. Sergeant Johnson testified that he

had seen people more intoxicated than Mr. Perry admitted to the jail. Stavley Decl. Ex. J 33:2-3.

Sergeant Taylor testified that Clackamas County admits people who are severely meth

intoxicated “at least weekly” and that it was “very common” to place highly intoxicated

individuals on methamphetamines in a holding cell. Stavley Decl. Ex. P 21:4-23. Nurse Rackley

testified that Mr. Perry was not the most intoxicated person she had ever kept in the jail and that

his condition was similar to many other patients she had seen. Stavley Decl. Ex. F 111:16-19,

112:5-9, 112:24-113:1. She also testified that she could not recall whether she had ever sent

anyone to the emergency room due to intoxication. Id. at 112:10-12. Nurse Valberg testified that

she had seen inmates more impaired than Mr. Perry in the jail and that this kind of behavior

occurred “frequently” and was “not really uncommon.” Stavley Decl. Ex. G 107:15-25, 109:14-

16. With this evidence, Plaintiff establishes a question of fact as to whether Clackamas County

and Corizon had a long-standing practice of admitting intoxicated people into the jail, and from

the testimony of Sergeant Johnson, Sergeant Taylor, Nurse Rackley, and Nurse Valberg a

reasonable juror could conclude that they also had a practice of admitting severely intoxicated

people into the jail.

To prevail on this theory plaintiff must show (1) “a direct causal link” between

Clackamas County and Corizon’s custom and the alleged constitutional deprivation and (2) that

“the custom or policy was adhered to with ‘deliberate indifference to the constitutional rights of

[the jail’s] inhabitants.’” Castro, 833 F.3d at 1076 (quoting City of Canton, 489 U.S. at 385,

392). “The Supreme Court has strongly suggested that the deliberate indifference standard for

municipalities is always an objective inquiry.” Id. at 1076.

Viewing the evidence in the light most favorable to Plaintiff, Plaintiff creates a question

of material fact as to whether Clackamas County and Corizon’s practice of admitting severely

intoxicated people to the jail was a direct cause of Mr. Perry’s death. Had the County and

Corizon followed their own policies, it is almost certain Mr. Perry would have been transferred

to the hospital where his condition could have been closely monitored, as was the case with Ms.

Mountsier.

Plaintiff also creates a question of fact as to whether Clackamas County and Corizon

knew that their custom of admitting severely intoxicated people into the jail would lead to

violations of inmates’ constitutional rights. The “Corizon Health – Clackamas County Jail Fit for

Confinement Guidelines” note that “impairment with alcohol or illicit substances rendering the

individual incoherent, confused, or unable to stand or walk without assistance” is a condition that

may require medical assessment by a physician before acceptance into Clackamas County Jail.

Stavley Decl. Ex. B at 12. Clackamas County Sheriff’s Office, Jail Division’s policy manual

states: “‘Inmates in need of immediate attention for a serious medical problem shall not be

admitted to the Clackamas County Jail until examined by a physician and documentation of such

medical attention is delivered to the CCJ.’ ‘Those individuals appearing to be under the influence

of drugs and/or alcohol, who also exhibit behavior that would lead one to believe that they are in

medical distress, will be sent to the hospital immediately to be medically cleared by a doctor

before such admittance into custody.’” Stavley Decl. Ex. P 27:12-23. Per their contract,

Clackamas County and Corizon were also aware of the NCCHC standards. Under those

standards, a “Compliance Indicator” is “[I]nmates experiencing severe or progressive

intoxication (overdose) or severe alcohol/sedative withdrawal are transferred immediately to a

licensed acute care facility.” Stavley Decl. Ex. T at 72. The discussion section of the relevant

NCCHC standard also states:

Detoxification and withdrawal are best managed by a physician or other medical

professionals with appropriate training and experience. As a precaution, severe

withdrawal syndromes must never be managed outside of a hospital. Deaths from

acute intoxication or severe withdrawal have occurred in correctional institutions.

Id.

Based on Clackamas County and Corizon’s adoption of these policies and awareness of

the NCCHC standards, a reasonable juror could conclude that Clackamas County and Corizon

knew of the substantial risk of serious harm of admitting severely intoxicated people into the jail.

See Castro, 833 F.3d at 1077 (finding the “affirmative adoption of regulations aimed at

mitigating the risk” that befell plaintiff proved knowledge of the risk) (citations omitted). A

reasonable juror could further conclude that Clackamas County and Corizon were deliberately

indifferent to that risk when they allowed severely intoxicated people to be admitted to the jail

rather than transferred to more appropriate facilities.

Defendants claim that Plaintiff cannot establish a custom or practice that posed a

substantial risk of serious harm because she offers no evidence of prior instances where a

severely intoxicated person was admitted to the jail and died. A single violation of federal rights

can result in municipal liability if the violation was a “highly predictable consequence” of the

municipality’s failure to act. See Bryan Cty., 520 U.S. at 409. Defendants’ own policies evidence

their awareness that admitting severely intoxicated people into the jail posed a risk of serious

harm to inmates. That no one in the past died or became dangerously ill due to this practice

shows that Clackamas County and Corizon were fortunate, not that they were not deliberately

indifferent. See Woodward v. Corr. Med. Servs. of Illinois, Inc., 368 F.3d 917, 929 (7th Cir.

2004) (finding the same). Accordingly, the Court denies Clackamas County and Corizon

summary judgment on this claim.

b. Culture of Indifference

Plaintiff argues that Clackamas County had a custom, practice, or entrenched culture of

indifference to the rights on inmates. Plaintiff relies on the same evidence for this theory as she

did for her claim related to admitting severely intoxicated people into the jail. She only adds that

Clackamas County did not discipline Deputy Shadrin for taking a video of Mr. Perry on her cell

phone and that Deputies Sandquist and Paurus received written reprimands. Plaintiff does not

submit enough evidence to create a question of fact as to a culture of indifference to the rights of

inmates generally. Her evidence is specific to the issue of the right to adequate medical care once

imprisoned, and as discussed above, she establishes a question of fact on that issue related to jail

admissions. The record does not support a broad finding that that Clackamas County was

deliberately indifferent to the rights of inmates across the board. Clackamas County is entitled to

summary judgment on this theory of Monell liability.

c. Understaffing and Physician Supervision

Plaintiff argues that Corizon and Clackamas County had a policy of understaffing and

providing no physician supervision. Plaintiff establishes that Clackamas County declined

Corizon’s request for more staffing and that it reduced the hours of the on-site physician to four

per month. Plaintiff fails, however, to establish direct causation on this claim. Plaintiff’s argument

that a physician on-site would have prevented Mr. Perry’s death is speculative. She makes multiple

assumptions without support from the record. She also does not explain how more nursing staff

would have changed the outcome, and she does not provide evidence or argument that a lack of

Clackamas County staff caused Mr. Perry’s death. Corizon medical staff attended Mr. Perry on

multiple occasions. The record supports that there is a question fact as to whether the incompetence

or deliberate indifference of the Corizon medical staff caused Mr. Perry’s death, not a lack of staff

generally. Corizon and Clackamas County are entitled to summary judgment on this theory of

Monell liability.

C. Supervisor liability

State officials are not vicariously liable for the actions of their subordinates. Monell, 436

U.S. at 694. A supervisor is liable under § 1983 only “if there exists either (1) his or her personal

involvement in the constitutional deprivation, or (2) a sufficient causal connection between the

supervisor’s wrongful conduct and the constitutional violation.” Rodriguez v. Cnty. of L.A., 891

F.3d 776, 798 (9th Cir. 2018). To make that showing, Plaintiffs must establish the supervisor’s

“‘own culpable action or inaction in the training, supervision, or control of his subordinates; for

his acquiescence in the deprivation; or for conduct that showed a reckless or callous indifference

to the rights of others.’” Keates v. Koile, 883 F.3d 1228, 1243 (9th Cir. 2018) (quoting Starr v.

Baca, 652 F.3d 1202, 1207 (9th Cir. 2011)).

Plaintiff argues that Nurse Petrov and Dr. Salazar should be liable for (1) failure to train

and/or supervise Corizon’s nursing staff on the toxicities of methamphetamines and/or bath salts;

(2) acquiescence in Corizon’s custom or practice of admitting into the jail, rather than referring

to acute care facilities, severely intoxicated inmates; and (3) failure to train any staff on how to

conduct medical screenings at the jail intake process.

First, Plaintiff does not show that Nurse Petrov and Dr. Salazar were personally involved

in the alleged custom of admitting severely intoxicated people into the jail and offers no facts

establishing their acquiescence in this practice. On the failure to train theories, Plaintiff provides

no evidence that Nurse Petrov and Dr. Salazar directed, or were supposed to direct, Corizon’s

staff training and were therefore the actual or proximate cause of the injury or culpable for these

alleged failures. She shows that Corizon may have had a contractual obligation to provide

medical training to Clackamas County but does not establish that these supervisors were charged

with ensuring that training occurred. This is unlike Starr v. Baca, where the supervising sheriff

was charged with prisoner’s safekeeping by law and had knowledge of the problem, but failed to

act to remedy unconstitutional conditions in the jail. 652 F.3d at 1208. Here, Plaintiff does not

provide evidence of personal involvement, acquiescence, culpability, or a sufficient causal

connection to create a question of fact for the jury on these claims. The Court finds that

Defendants Nurse Petrov and Dr. Salazar are entitled to summary judgment on the claims against

them.

II. Negligence

Plaintiff alleges a negligence claim against Clackamas County on several bases. Plaintiff

brings her state law negligence claim against Clackamas County because under the Oregon Tort

Claims Act, tort claims against public employees committed in the course of employment must

be brought against a public body. See Or. Rev. Stat. § 30.265(2).

Defendant argues that Plaintiff’s negligence claim cannot proceed to trial because it is

based on the same operative facts as her § 1983 claims. Under Oregon law, intentional conduct

does not support a claim for negligence. Woods v. Gutierrez, No. 3:11-CV-01082-BR, 2012 WL

6203170, at *12 (D. Or. Dec. 12, 2012) (citing Kasnick v. Cooke, 116 Or. App. 580, 583 (1992)).

Accordingly, judges in this District have found that a negligence claim cannot be based on the

same facts as a Fourth Amendment § 1983 claim. See Dickerson v. City of Portland, No. 3:19-

CV-01126-SB, 2020 WL 7391267, at *9 (D. Or. Dec. 16, 2020) (collecting cases). However,

Plaintiff’s § 1983 claim is based on the Eighth Amendment, not the Fourth Amendment.

Deliberate indifference “requires a showing of only subjective recklessness—not intent,” and

“Oregon law permits a plaintiff to proceed on alternative theories of negligence and

recklessness.” Johnson v. Tillamook Cty., No. 3:15-CV-00125-PK, 2016 WL 11383939, at *11

(D. Or. Apr. 18, 2016), report and recommendation adopted, No. 3:15-CV-00125-PK, 2016 WL

3946919 (D. Or. July 20, 2016) (holding a plaintiff may bring a § 1983 claim for deliberate

indifference to medical needs and a negligence claim and describing relevant Oregon law).

Accordingly, Defendant Clackamas County is not entitled to summary judgment on this basis.

To prevail on a common-law negligence claim under Oregon law, a plaintiff must prove:

(1) that defendant's conduct caused a foreseeable risk of harm, (2) that the risk is to

an interest of a kind that the law protects against negligent invasion, (3) that

defendant's conduct was unreasonable in light of the risk, (4) that the conduct was

a cause of plaintiffs harm, and (5) that plaintiff was within the class of persons and

plaintiffs injury was within the general type of potential incidents and injuries that

made defendant's conduct negligent.

Son v. Ashland Cmty. Healthcare Servs., 239 Or. App. 495, 506 (2010) (citations omitted). Thus,

a defendant is liable only for the foreseeable consequences of their negligence “unless the parties

invoke a status, a relationship, or a particular standard of conduct that creates, defines, or limits

the defendant's duty.” Fazzolari By & Through Fazzolari v. Portland Sch. Dist. No. 1J, 303 Or.

1, 17 (1987).

The parties agree that a special relationship existed between Clackamas County and Mr.

Perry. In Oregon, “[w]hen a special relationship or status gives rise to the duty of care, that

relationship or status may also define the scope of the duty by specifically describing the types of

harms or class of persons that it encompasses ... where the special relationship does not prescribe

the scope of the duty, common law principles of reasonable care and foreseeability of harm are

relevant.” Allstate Ins. Co. v. Tenant Screening Servs. Inc., 140 Or.App. 41, 50 (1996) (emphasis

in original) (internal citation and quotation omitted).

The parties disagree on the scope of the duty Clackamas County owed Mr. Perry based

on their relationship. Defendant argues that ORS 169.140 delineates the duty of jailer to inmate

and only requires the provision of “necessary medical aid.” Defendant also relies on the

Restatement of Torts § 314A “Special Relationships Giving Rise to a Duty to Protect” to define

the duty. Plaintiff argues Clackamas County’s duty was not limited by ORS. 169.140 and instead

relies on Buchler v. State By & Through Oregon Corr. Div., 316 Or. 499 (1993) to argue that

Clackamas County was a custodian.

Buchler v. State By & Through Oregon Corr. Div. concerned an escaped convict who

shot two members of the public after he fled his rural worksite in a state van. Id. at 502.

Analyzing negligence claims against the state, the court considered the duty the state owed to the

public to control inmates in its care. Id. at 505. Relying on the Restatement (Second) of Torts

§ 319, the court found that the state’s status as a custodian of a prisoner raised the duty of care it

owes to third persons. Id. This case does not concern the duty owed to third persons or members

of the public, but to a prisoner himself. Buchler, therefore, cannot define the duty owed to Mr.

Perry.

ORS 169.140 directly addresses the duty owed here. ORS 169.140 requires local

correctional facilities to provide all prisoners in their custody “necessary medical aid.” Oregon

courts also consistently look to the Restatements to “provide useful guidance regarding the duty

imposed as the result of a special relationship or status.” Crane v. United States, No. 3:10-CV-

00068-AC, 2013 WL 1453166, at *4 (D. Or. Mar. 21, 2013), report and recommendation

adopted, No. 3:10-CV-00068-AC, 2013 WL 1437816 (D. Or. Apr. 9, 2013) (citing Stewart v.

Kids Inc. of Dallas, OR, 245 Or. App. 267, 278 (2011)). Here, the Second Restatement of Torts §

314A(4) “Special Relations Giving Rise to Duty to Aid or Protect” is particularly apt. Indeed,

other courts have relied on this section to define the relationship between jailers and prisoners.

See id. (collecting cases). The Second Restatement of Torts § 314A(4) provides that “One who is

required by law to take or who voluntarily takes the custody of another under circumstances such

as to deprive the other of his normal opportunities for protection is under a similar duty to the

other.” Comment f to § 314A(4) further provides:

The defendant is not required to take any action until he knows or has reason to

know that the plaintiff is endangered, or is ill or injured. He is not required to take

any action beyond that which is reasonable under the circumstances. In the case of

an ill or injured person, he will seldom be required to do more than give such first

aid as he reasonably can, and take reasonable steps to turn the sick man over to a

physician, or to those who will look after him and see that medical assistance is

obtained. He is not required to give any aid to one who is in the hands of apparently

competent persons who have taken charge of him . . .

Id.

With this guidance, the Court finds that Clackamas County staff had a special

relationship to Mr. Perry that required them to take reasonable actions under the circumstances to

provide necessary medical aid to him. Defendant Clackamas County argues it discharged this

duty by putting Mr. Perry in the hands of the Corizon nurses. Defendant Clackamas County is

not entitled to summary judgment on this basis.

Plaintiff creates a question of fact as to whether Defendant Clackamas County breached

its duty of care to Plaintiff. The actions of Sergeants Taylor and Johnson provide one example.

First, the record shows that Sergeants Taylor and Johnson were aware of Mr. Perry’s serious

medical condition. It also shows that they were involved in the decision to transfer Ms.

Mountsier to the hospital and were therefore aware of the limited healthcare services the Corizon

nurses could provide at the jail. Second, there is at least a dispute of fact whether the Sergeants

took reasonable steps under the circumstances to ensure Mr. Perry was in the hands of someone

competent to care for him given his degree of illness. Defendant Clackamas County is correct

that the Corizon nurses attended Mr. Perry in a limited capacity. However, given Mr. Perry’s

presentation, there is a question of fact as to whether it was reasonable to rely on them alone. The

Court denies summary judgment on Plaintiff’s negligence claim against Clackamas County.

Finally, Plaintiff argues Clackamas County is vicariously liable for Corizon’s actions.

Defendant Clackamas County concedes that it and Corizon are in a non-employee agent

relationship. “[F]or a principal to be vicariously liable for the negligence of its nonemployee

agents, there ordinarily must be a connection between the principal's ‘right to control’ the agent's

actions and the specific conduct giving rise to the tort claim.” Vaughn v. First Transit, Inc., 346

Or. 128, 138 (2009). Plaintiff alleges that Clackamas County directed when and how the Corizon

nurses checked on Mr. Perry. She does not, however, offer any evidence to support her allegation

that Clackamas County controlled how the Corizon nurses checked on Mr. Perry. She does

proffer evidence that Clackamas County directed when the Corizon nurses checked on Mr. Perry

to some extent but this alone is not enough to establish vicarious liability. Stavley Decl. Ex. J

43:14-44:17. “[A] principal that ‘authorizes’ a nonemployee agent to act on the principal's behalf

is not, for that reason alone, liable when the agent injures a third party because the agent was

negligent in carrying out its authorized activities.” Vaughn, 346 Or. at 139. She also points out

that Clackamas County previously denied Corizon funding for more staff. This evidence only

supports that the parties were in an agency relationship, since Clackamas County determined the

extent to which Corizon would act on its behalf through funding. Id. at 136. Accordingly,

Plaintiff does not point to sufficient facts to establish a question of fact as to whether Clackamas

County should be held liable for Corizon’s alleged negligence.

//

//

III. Gross Negligence

Plaintiff brings a claim for gross negligence against Corizon. Plaintiff and Defendant

Corizon agree that the arguments and evidence establishing a question of fact as to liability for

deliberate indifference are sufficient to establish a question of fact as to liability for Plaintiff’s

gross negligence claims. Accordingly, Defendant Corizon is not entitled to summary judgment

on gross negligence, as the Court found that a reasonable juror could conclude that the Corizon

nurses were deliberately indifferent to Mr. Perry’s serious medical needs.

CONCLUSION

Defendant Clackamas County’s Motion for Summary Judgment [74] is GRANTED IN

PART and DENIED IN PART as follows: (1) the Court denies Clackamas County summary

judgment on Plaintiff’s Monell claim based on a custom or practice of admitting severely

intoxicated people into the jail; (2) the Court grants Clackamas County summary judgment on

Plaintiff’s remaining Monell claims; (3) the Court denies Clackamas County summary judgment

on Plaintiff’s negligence claim.

Clackamas County Individual Defendants’ Motion for Summary Judgment [70] is

GRANTED IN PART and DENIED IN PART as follows: (1) the Court grants Defendants

Shultz, Johnson, and Taylor summary judgment on Plaintiff’s § 1983 claims; (2) the Court

denies Defendants Paurus, Sandquist, and Shadrin summary judgment on Plaintiff’s § 1983

claims.

Defendant Corizon’s Motion for Partial Summary Judgment [67] is GRANTED IN

PART and DENIED IN PART as follows: (1) the Court denies Defendants Rackley and Valberg

summary judgment on Plaintiff’s § 1983 claims; (2) the Court grants Defendants Petrov and

Salazar summary judgment on Plaintiff’s § 1983 supervisory liability claims; (3) the Court

denies Corizon summary judgment on Plaintiff’s Monell claim based on a custom or practice of

admitting severely intoxicated people into the jail and on a failure to train staff on the toxicity of

methamphetamines and bath salts; (3) the Court grants Corizon summary judgment on Plaintiff’s

remaining Monell claims; (4) the Court denies Corizon summary judgment on Plaintiff’s gross

negligence claim.

IT IS SO ORDERED.

DATED:____J_u_n_e_ _1_8_,_ 2_0_2__1_______.

______________________________

MARCO A. HERNÁNDEZ

United States District Judge