The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
TAMMY JURGENS, in her personal Case No. 3:22-cv-300-IM
capacity as personal representative of the
Estate of LINDA BROWN, deceased, OPINION AND ORDER GRANTING
PROVIDENCE DEFENDANT’S
Plaintiff, MOTION TO DISMISS
v.
COLUMBIA COUNTY, an Oregon
municipality; BRIAN PIXLEY, in his
official capacity; SOPHIE FRAZIER, in her
individual and official capacity; JUSTEN
JUMP, in his individual and official capacity;
ALEX BUNCH, in his individual and official
capacity; CORRECT CARE SOLUTIONS,
LLC d/b/a/ WELLPATH LLC;
MADELINE GRIFFITH, in her individual
capacity; KELSIE HANSON, in her
individual capacity; PROVIDENCE ST.
VINCENT MEDICAL CENTER;
FAREHAH NAWAZ, MD; and CHERRY
CHEN, MD,
Defendants.
Dale Henry Pugh, Dale Pugh Law, 11374 Xavier Drive Suite 101,Westminster, CO 80031. Jacob
Johnstun, Johnstun Injury Law LLC, 1935 St. Helens Street, Suite A St. Helens, OR 97051.
Attorneys for Plaintiff.
Melissa J. Bushnick, Lindsay Hart LLP, 1300 SW Fifth Avenue Suite 3400, Portland, OR 97201.
Sarah Desautels, Lewis Brisbois Bisgaard & Smith LLP, 888 SW Fifth Avenue Suite 900
Portland, OR 97204. Attorneys for Defendants Providence St. Vincent Medical Center, Farehah
Nawaz, MD, and Cherry Chen, MD.
IMMERGUT, District Judge.
Before this Court is a motion to dismiss for lack of subject-matter jurisdiction (“Defs.’
Mot”), ECF 50, filed by Defendants Providence St. Vincent Medical Center (“PSVMC”),
Farehah Nawaz, MD, and Cherry Chen, MD’s (collectively, “Providence Defendants”).
The allegations in the complaint arise from the death of Linda Brown on October 23,
2020, while she was in custody at the Columbia County Jail. Fourth Amended Complaint (“4th
Am. Compl.”), ECF 43 ¶¶ 25, 36. On February 24, 2022, Plaintiff Tammy Jurgens filed this
action as representative of the estate of Ms. Brown. Complaint, ECF 1. Plaintiff’s Fourth
Amended Complaint names Defendants Columbia County, the Columbia County Sheriff, and
several officers who worked at the Columbia County Jail (collectively, “Columbia County
Defendants”), Correct Care Solutions (“CCS”) and medical staff employed by CCS who worked
at the Columbia County Jail (collectively, “CCS Defendants”), as well as the Providence
Defendants. ECF 43 ¶¶ 5–9.
Plaintiff has asserted the following claims under federal law: (1) Deliberate Indifference
to Serious Medical Needs under § 1983 against the Columbia County Defendants and CCS
Defendants; (2) Deliberate Indifference to Serious Medical Needs – Monell Liability under
§ 1983 against Columbia County and the Columbia County Sheriff; (3) Inadequate Corrections
Staffing – Monell Liability under § 1983 against Columbia County and the Columbia County
Sheriff; and (4) Discrimination Against Persons with Disabilities under the Americans with
Disabilities Act against the Columbia County Defendants. Id. ¶¶ 39–65. Plaintiff also asserts the
following claims under state law: (1) Wrongful Death against the Columbia County Defendants
and CCS Defendants; and (2) Wrongful Death against the Providence Defendants. Id. ¶¶ 53–55,
61–65.
In their motion to dismiss, the Providence Defendants move to dismiss the sole claim
asserted against them, arguing that this Court lacks subject-matter jurisdiction over the state law
wrongful death claim as alleged against the Providence Defendants. Defs.’ Mot., ECF 50 at 4.
Plaintiff opposes this motion. See Plaintiff’s Response to Providence’s Motion to Dismiss (“Pl.’s
Resp.”), ECF 52. As explained more fully below, this Court GRANTS the Providence
Defendants’ motion to dismiss because the wrongful death claim against them does not involve
the same nucleus of operative fact as Plaintiff’s federal claims.
BACKGROUND
On September 26, 2020, Ms. Brown was admitted to PSVMC following complaints about
nausea, vomiting, diarrhea, and right leg pain. 4th Am. Compl., ECF 43 ¶¶ 12–13.1 While at
PSVMC, Ms. Brown’s lab test results identified low levels of magnesium and phosphorus in her
blood. Id. ¶¶ 13, 17. Doctor Nawaz was responsible for Ms. Brown’s care from September 27,
2020 through October 1, 2020. Id. ¶ 16. During these five days, Doctor Nawaz ordered
magnesium sulfate for Ms. Brown once but did not treat Ms. Brown for low phosphorous. Id.
¶ 16, 18. Doctor Chen took over Ms. Brown’s medical care from October 2, 2020 through
October 5, 2020. Id. ¶ 19. During three out of these four days, Dr. Chen administered magnesium
sulfate once a day, but Dr. Chen also did not treat Ms. Brown’s low phosphorous levels. Id.
1 The facts in this opinion are all taken from Plaintiff’s Fourth Amended Complaint. On a
motion to dismiss, this Court must accept all well-pleaded factual allegations from the Fourth
Amended Complaint as true and draw all reasonable inferences in Plaintiff’s favor. See Pride v.
Correa, 719 F.3d 1130, 1133 (9th Cir. 2013).
¶¶ 19, 20. Despite her low levels of magnesium and phosphorus, Ms. Brown was discharged
from PSVMC on October 5, 2020 and admitted to a skilled nursing facility without instructions
to treat her low levels of phosphorous and magnesium. Id. ¶¶ 21–22. Ms. Brown left the skilled
nursing facility the next day without engaging in treatment. Id. ¶ 24.
On October 12, 2020, Ms. Brown was arrested for driving under the influence of alcohol
and taken into custody at the Columbia County Jail. Id. ¶ 25. Ms. Brown remained at the
Columbia County Jail until her death on October 23, 2020, when she was discovered
unresponsive in her cell. Id. ¶ 29. The Fourth Amended Complaint contains conflicting
allegations as to Ms. Brown’s cause of death. The initial autopsy ruled the cause of death as
“Complications of liver cirrhosis due to chronic ethanolism,” and subsequent medical reviews
identified the cause of death as cardiac arrhythmia. Id. ¶ 36.
In her federal claims relating to Ms. Brown’s incarceration at the Columbia County Jail,
Plaintiff alleges that the CCS Defendants and the Columbia County Defendants ignored or
obstructed Ms. Brown’s requests for medical attention several times and failed to administer her
prescribed medications. See id. ¶¶ 29, 30, 33, 34, 35. Plaintiff also pleads that the County failed
to help Ms. Brown obtain new hearing aid batteries, and that she was not given access to her
prescribed medications. Id. ¶¶ 31, 32, 33. The Fourth Amended Complaint also cites to an
insufficient number of corrections staff as a substantial factor in causing Ms. Brown’s death. Id.
¶ 38.
In her wrongful death claim against the Providence Defendants, Plaintiff alleges that
while Ms. Brown was admitted to PSVMC, they negligently provided care in five ways:
(1) failing to sufficiently treat and/or stabilize Ms. Brown’s magnesium levels; (2) failing to
sufficiently treat and/or stabilize Ms. Brown’s phosphorus levels; (3) failing to prescribe
adequate medication to treat Ms. Brown’s magnesium and phosphorus levels; (4) failing to
instruct the skilled nursing facility to treat Ms. Brown’s low magnesium and phosphorus levels;
and (5) failing to give adequate discharge instructions to Ms. Brown regarding her magnesium
and phosphorus levels. Id. ¶¶ 61–63.
On July 17, 2023, the Providence Defendants moved to dismiss the sole claim asserted
against them, arguing that this Court lacks subject-matter jurisdiction over the wrongful death
claim asserted against the Providence Defendants. Defs.’ Mot., ECF 50. Plaintiff responded on
July 31, 2023. Pl.’s Resp., ECF 52.
LEGAL STANDARDS
Federal courts are courts of limited jurisdiction. Gunn v. Minton, 568 U.S. 251, 256
(2013). Thus, a court is to presume “that a cause lies outside this limited jurisdiction, and the
burden of establishing the contrary rests upon the party asserting jurisdiction.” Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted). When a court “lacks
subject-matter jurisdiction, the court must dismiss the complaint” under Federal Rule of Civil
Procedure 12(b)(1). Pistor v. Garcia, 791 F.3d 1104, 1111 (9th Cir. 2015) (citation omitted).
A court may exercise supplemental jurisdiction over state-law claims “so long as the
pendent state law claim is part of the same ‘case or controversy’ as the federal claim.” Trs. of
Constr. Indus. & Laborers Health & Welfare Tr. v. Desert Valley Landscape & Maint., Inc., 333
F.3d 923, 925 (9th Cir. 2003) (citing Mendoza v. Zirkle Fruit Co., 301 F.3d 1163, 1174 (9th Cir.
2002); 28 U.S.C. § 1367(a)). Nonfederal claims are part of the same case as federal claims when
they “derive from a common nucleus of operative fact and are such that a plaintiff would
ordinarily be expected to try them in one judicial proceeding.” Arroyo v. Rosas, 19 F.4th 1202,
1210 (9th Cir. 2021) (citation and internal quotation marks omitted). A district court’s decision
to exercise supplemental jurisdiction under § 1367(a) is discretionary. City of Chicago v. Int’l
Coll. of Surgeons, 522 U.S. 156, 172 (1997).
“A Rule 12(b)(1) jurisdictional attack may be facial or factual.” Safe Air for Everyone v.
Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). “A ‘facial’ attack” under Rule 12(b)(1) “accepts the
truth of the plaintiff’s [well-pleaded] allegations but asserts that they ‘are insufficient on their
face to invoke federal jurisdiction.’” Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014)
(citation omitted).
DISCUSSION
In their motion, the Providence Defendants assert a facial jurisdictional attack, arguing
that this Court lacks supplemental jurisdiction over the state-law wrongful death claim asserted
against them because the wrongful death allegations against them are distinct from the federal
claims both factually and temporally. Defs.’ Mot., ECF 50 at 5. Defendants state that the conduct
alleged against the Providence Defendants took place at the PSVMC hospital between September
26, 2020 and October 5, 2020, while the facts underlying the federal claims alleged against other
defendants took place when Ms. Brown was incarcerated at the Columbia County Jail between
October 12, 2020 and October 23, 2020. Id. at 7. The Providence Defendants rely on two cases to
argue this Court lacks supplemental jurisdiction here. Id. at 5–6 (first citing McNair v. Oregon,
No. 2:16-cv-00871-SB, 2018 U.S. Dist. LEXIS 114301, at *5 (D. Or. Apr. 18, 2018) (finding
that claims did not share a common nucleus of operative fact because they involved “a discrete
set of facts and potential witnesses” and took place in separate locations); and then citing
Serrano-Moran v. Grau-Gaztambide, 195 F.3d 68, 69 (1st Cir. 1999) (affirming a district court’s
refusal to exercise supplemental jurisdiction because the “facts and witnesses as to the two sets of
claims are essentially different” and “[w]hether or not the police violated [plaintiff’s] civil rights
has nothing to do with whether the hospital and doctors conformed to the requisite standard of
care”)).
Plaintiff does not respond to the cases cited by the Providence Defendants, but states that
the negligence alleged against the Providence Defendants is similar to the negligence alleged
against the Columbia County Defendants and the CCS Defendants—in that each party “failed to
properly investigate, evaluate, assess, and treat [Ms. Brown’s] medical condition.” Pl.’s Resp.,
ECF 52 at 2–3. Nor does Plaintiff allege a separate basis for subject-matter jurisdiction, but only
argues in conclusory fashion that the negligence alleged against the Providence Defendants and
the other defendants share a common nucleus of operative fact. Id. at 2.
This Court agrees with the Providence Defendants that the wrongful death claim alleged
against the Providence Defendants does not share a common nucleus of operative fact with the
federal claims under § 1983 and the ADA asserted against the remaining defendants. First, the
wrongful death claim against Providence and federal claims against other defendants are
temporally distinct: Ms. Brown was discharged from PSVMC on October 5, and she was not
taken into custody at Columbia County Jail until October 12. 4th Am. Compl., ECF 43 ¶¶ 21, 25.
Additionally, Ms. Brown died 18 days after she was discharged from PSVMC, and after she was
held in Columbia County custody for 11 days. Id. ¶¶ 21, 25, 36. Second, the alleged negligence
took place at different locations, PSVMC and the Columbia County Jail. Id. ¶¶ 12–52, 56–65.
And third, the negligence alleged is of a different nature. In the claims against Columbia County
and Correct Care Solutions, Plaintiff alleges that jail staff: a) witnessed Ms. Brown suffering
from prolonged nausea, vomiting, diarrhea, severe confusion, and limited food intake; b) knew
that Ms. Brown had significant preexisting medical conditions; c) saw that Ms. Brown could
barely walk; d) knew that Ms. Brown could not effectively communicate without new hearing
aid batteries, and that she could not contact Plaintiff or her attorney without assistance; e)
ignored or inhibited Ms. Brown’s attempts to seek medical attention and contact her attorney;
and f) failed to provide Ms. Brown with hearing aid batteries and her prescribed medication. Id.
¶¶ 29–34.
Plaintiff’s allegations against the Providence Defendants are substantially different. As to
the Providence Defendants, she claims that medical staff were negligent in failing to treat Ms.
Brown and in discharging her, despite low levels of magnesium and phosphorus in her lab tests,
to a skilled nursing facility without instructions to treat Ms. Brown’s magnesium and
phosphorous deficiency. Id. ¶¶ 14–22, 63. Plaintiff further claims that “Ms. Brown’s low levels of
magnesium and phosphate, combined with the loss of sodium, bicarbonate, potassium and chloride
experienced by individuals with persistent nausea, vomiting, and diarrhea placed her at high risk for
cardiac arrhythmia,” one of the causes of death alleged in the Fourth Amended Complaint. Id. ¶¶ 1,
23, 36. This Court finds that the state wrongful death claim alleged against the Providence
Defendants does not arise from the same nucleus of operative fact as the remaining federal
claims. Accordingly, this Court declines to exercise supplemental jurisdiction over the wrongful
death claim asserted against Providence.
CONCLUSION
This Court GRANTS the Providence Defendants’ motion to dismiss for lack of subject-
matter jurisdiction. Defs.’ Mot., ECF 50. Because Plaintiff does not assert other claims against
the Providence Defendants, Defendants PSVMC, Nawaz, and Chen are DISMISSED from this
action.
IT IS SO ORDERED.
DATED this 4th day of October, 2023.
/s/ Karin J. Immergut
Karin J. Immergut
United States District Judge