Warren v. Yamhill County

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

RENEE WARREN, Personal Representative Case No. 3:23-cv-911-SI

of the ESTATE OF SHANE EARL RADER,

Deceased, OPINION AND ORDER

Plaintiff,

v.

YAMHILL COUNTY, an Oregon County;

TIM SVENSON, an individual; MICHAEL

PETRASEK, an individual; JEREMY

RUBY, an individual; RICHARD GEIST, an

individual; TAMARA HART, an individual;

TONI SANZANO, an individual; AUDREY

SPENCER, an individual; WELLPATH,

LLC, a Delaware corporation; VIVEK

SHAH, an individual; and JOHN DOES 1-10,

Defendants.

Matthew D. Kaplan, MATTHEW D. KAPLAN, LLC, 50 SW Pine Street, Suite 302, Portland, OR

97204, and Nadia H. Dahab, SUGERMAN DAHAB, 101 SW Main Street, Suite 910, Portland, OR

97204. Of Attorneys for Plaintiff.

Lauren E. Nweze, William E. Stabler, & David C. Lewis, LEWIS, NWEZE & STABLER, 15875

Boones Ferry Road, #1469, Lake Oswego, OR 97035. Of Attorneys for Yamhill County, Tim

Svenson, Jeremy Ruby, Tamara Hart, Toni Sanzano, and Audrey Spencer.

Jonathan David Ballard & Ross C. Taylor, FOX BALLARD PLLC, 1325 Fourth Avenue, Suite 1500,

Seattle, WA 98101. Of Attorneys for Nurse Michael Petrasek and Wellpath, LLC.

Robert E. Franz, Jr. & Sarah R. Henderson, LAW OFFICE OF ROBERT E. FRANZ, JR., P.O. Box 62,

Springfield, OR 97477. Of Attorneys for Richard Geist.

Ross C. Taylor, FOX BALLARD PLLC, 1325 Fourth Avenue, Suite 1500, Seattle, WA 98101. Of

Attorney for Dr. Vivek Shah.

Michael H. Simon, District Judge.

Plaintiff Renee Warren brings claims as the personal representative for the estate of

Shane Earl Rader (“Rader”), who died in the Yamhill County Jail (“Jail”). Plaintiff originally

alleged several constitutional violations under 42 U.S.C. § 1983 and negligence claims against

Yamhill County (“County”) and its employees, as well as Wellpath, LLC (“Wellpath”) and its

employees, Registered Nurse (“RN”) Michael Petrasek and John Does 6-10. Wellpath contracted

with the County to provide medical care in the Jail. The Court granted a motion to dismiss filed

by Wellpath and its employees. Plaintiff filed a First Amended Complaint (“FAC”).

Plaintiff continues to bring claims against the County and its employees and brings

amended claims against Wellpath and its employees RN Petrasek, Dr. Vivek Shah, MD, and

John Does 6-10 (collectively, the “Wellpath Defendants”). Plaintiff asserts claims for alleged

constitutional violations under § 1983 and negligence. The Wellpath Defendants have again filed

a motion to dismiss. For the reasons stated below, the Court grants that motion in part.

STANDARDS

A motion to dismiss for failure to state a claim may be granted only when there is no

cognizable legal theory to support the claim or when the complaint lacks sufficient factual

allegations to state a facially plausible claim for relief. Shroyer v. New Cingular Wireless Servs.,

Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). In evaluating the sufficiency of a complaint’s factual

allegations, the court must accept as true all well-pleaded material facts alleged in the complaint

and construe them in the light most favorable to the nonmoving party. Wilson v. Hewlett-

Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012); Daniels-Hall v. Nat’l Educ. Ass’n, 629

F.3d 992, 998 (9th Cir. 2010). To be entitled to a presumption of truth, allegations in a complaint

“may not simply recite the elements of a cause of action, but must contain sufficient allegations

of underlying facts to give fair notice and to enable the opposing party to defend itself

effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). The court must draw all

reasonable inferences from the factual allegations in favor of the plaintiff. Newcal Indus., Inc. v.

Ikon Off. Sol., 513 F.3d 1038, 1043 n.2 (9th Cir. 2008). The court need not, however, credit a

plaintiff’s legal conclusions that are couched as factual allegations. Ashcroft v. Iqbal, 556

U.S. 662, 678-79 (2009).

A complaint must contain sufficient factual allegations to “plausibly suggest an

entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the

expense of discovery and continued litigation.” Starr, 652 F.3d at 1216. “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). “The plausibility standard is not akin to a

probability requirement, but it asks for more than a sheer possibility that a defendant has acted

unlawfully.” Mashiri v. Epsten Grinnell & Howell, 845 F.3d 984, 988 (9th Cir. 2017) (quotation

marks omitted).

BACKGROUND

A. Rader’s Time at the Jail

On June 15, 2021, the Newberg-Dundee Police Department arrested Rader and processed

him into the Jail. FAC (ECF 35) ¶¶ 1, 39-40. Rader told the arresting officer that he needed

medical and mental health care. Id. ¶ 39. During his booking, Rader stated that he had a history

of suicide attempts and had thoughts of killing his family and himself earlier that day. Id. ¶ 41.

Rader was moved to a medical cell and placed on suicide watch. Id. A Wellpath emergency

medical technician (“EMT”) completed a Screening Exception Form, which documented that

two attempts to screen Rader for medical issues failed because of the suicide watch, Rader’s

mental instability, and safety concerns. Id. ¶ 42. Wellpath staff did not attempt to medically

screen Rader again until June 28. Id. ¶¶ 46, 51, 53, 56-57.

Two qualified mental health professionals (“QMHPs”) employed by the County visited

Rader over the next two days. Id. ¶¶ 44, 48. On June 16, 2021, the first QMHP diagnosed Rader

with an intellectual disability and continued his suicide watch. Id. ¶ 45. On June 17, 2021, the

second QMHP agreed that Rader exhibited an intellectual disability. Id. ¶ 49. After Rader denied

suicidal ideation, the QMHP recommended that Rader be removed from suicide watch, which he

was. Id. At the QMHP’s direction, Jail staff moved Rader to a camera-monitored segregation

cell. Id. ¶ 50. Jail staff and Wellpath had access to the camera feed. Id. ¶¶ 58-59. As a post-

suicide watch precaution, Rader was instructed to press his cell’s intercom button if he

experienced thoughts of suicide. Id. ¶ 49.

For the next four days, from June 18 to June 21, 2021, one of the County QMHPs visited

Rader once per day. Id. ¶ 52. Rader was removed from post-suicide watch precautions on

June 25, 2021. Id. ¶ 55.

On June 28, 2021, a Wellpath RN attempted to physically examine Rader, but Rader

refused the exam. Id. ¶ 57. The next day, June 29, 2021, Rader died by suicide in his cell. Id.

¶¶ 61-66. A Jail deputy monitored Rader’s and others’ cells by camera but did not respond to

Rader’s visible condition and distress for more than ten minutes. Id. ¶¶ 61-63. Help arrived about

fifteen minutes after Rader began to die, but lifesaving efforts by Jail staff, Wellpath staff, and

paramedics did not succeed. Id. ¶¶ 61, 64-66.

B. National Commission on Correctional Health Care Standards

The National Commission on Correctional Health Care (“NCCHC”) publishes a set of

standards for health services in jails (“NCCHC Jail Standards”). Id. ¶ 24. Wellpath stated that its

services at the Jail would meet the NCCHC Jail Standards. Id.

The fundamental principle of the NCCHC Jail Standards is that “[i]nmates must have

access to care to meet their serious health needs.” NCCHC Jail Standards J-A-01. “Unreasonable

barriers” to health services offend this principle, such as a health service system that is

understaffed, underfunded, or poorly organized with “the result that it is not able to provide

appropriate and timely access to care.” Id. The NCCHC Jail Standards declare it “essential” that

“[s]uicides are prevented when possible by implementing prevention efforts and intervention.”

NCCHC Jail Standards J-B-05. The NCCHC also publishes standards for mental health care

providers.

C. Wellpath

The County contracted with Wellpath in 2017 to provide medical care and

pharmaceutical services to those in custody at the Jail. FAC ¶ 23. The County provided mental

health care.1 The contract required Wellpath to identify persons in custody at the Jail with

medical or mental health conditions that incarceration may worsen and that may require

extensive care. Id. The contract required, after a review for safety and security, that the County

work with Wellpath to release, transfer, or otherwise remove these persons from the Jail. Id.

Several counties have complained or litigated about deficient services by Wellpath. Id.

¶¶ 83 (Pierce County, Washington), 86 (Collin County, Texas), 89 (Fulton County, Georgia), 90

(Kitsap County, Washington), 93 (Clark County, Washington). Plaintiff lists six suicides and one

attempted suicide since 2016 at other county jails where Wellpath provided medical and mental

1 Wellpath’s contract “was for medical care and pharmaceutical services only.” FAC

¶ 38. The County employed all mental health providers mentioned in the FAC. See id. ¶¶ 12, 13,

20. Though the FAC does not affirmatively state that Wellpath did not provide mental health

care at the Jail, the Wellpath Defendants argue as much, and Plaintiff does not contradict that

characterization. Plaintiff instead reiterates that Wellpath was required “to coordinate care,” an

argument addressed below.

health services. Id. ¶¶ 85 (Montrose County, Colorado, 2016), 87 (attempt, Kitsap County,

Washington, 2017), 88 (Mesa County, Colorado, 2017), 91 (Arapahoe County, Colorado, 2017),

94 (Josephine County, Oregon, 2018), 96 (Monterey County, California, 2021), 97 (same, 2022).

Plaintiff also notes two deaths at the Jail that occurred in 2018 and 2021, years during

which Wellpath provided medical and pharmaceutical services. Id. ¶¶ 92, 95. In 2018, a person

in custody at the Jail died of severe alcohol withdrawal three hours and thirty minutes after

booking. Id. ¶ 92. That person did not receive medical treatment. Id. In 2021, a person in custody

at the Jail died by suicide. Id. ¶ 95. That person died after being removed from suicide watch and

placed on the same post-suicide watch precautions and in the same type of cell as Rader. Id.

DISCUSSION

The Wellpath Defendants argue that Plaintiff’s claims fail because: (A) Plaintiff does not

adequately allege a policy or custom by Wellpath as required to plausibly allege liability under

Monell v. Department of Social Services of City of New York, 436 U.S. 658 (1978) for Plaintiff’s

claims under § 1983; (B) Plaintiff does not allege facts relating to Wellpath’s named employees

or Doe Defendants sufficient to state a claim for supervisory liability; and (C) Plaintiff does not

allege facts relating to Wellpath’s responsibility for Rader’s mental health care sufficient to

support Plaintiff’s negligence claims. The Court addresses each argument in turn.

A. Section 1983 Monell Deliberate Indifference Claim Against Wellpath

Count Two of Plaintiff’s second claim for relief asserts a § 1983 Monell claim against

Wellpath. Plaintiff alleges Monell liability under a theory that Wellpath was deliberately

indifferent to Rader’s serious medical needs through several policies, customs, or practices that

deprived Rader of his Eighth Amendment and Fourteenth Amendment rights. Wellpath responds

to each alleged policy, challenging its sufficiency to support the claim, and argues that Plaintiff

did not allege an underlying constitutional violation.

1. Applicable Law

Section 1983 provides that “[e]very person who, under color of any statute, ordinance,

regulation, custom, or usage of any State” who “subjects, or causes to be subjected” any person

within the jurisdiction of the United States to the “deprivation of any rights, privileges, or

immunities secured by the Constitution and the laws, shall be liable to the party injured.” 42

U.S.C. § 1983. Although a municipality or other local government is a “person[]” who may be

sued under § 1983, Duarte v. City of Stockton, 60 F.4th 566, 568 (9th Cir. 2023), it may not be

held liable “for an injury inflicted solely by its employees or agents,” Monell, 436 U.S. at 694. In

other words, § 1983 does not allow recovery for the actions of a local government’s employees

under a theory of respondeat superior liability. Id. at 691. Instead, a plaintiff must demonstrate

that a municipality had a “policy” that was the “moving force” behind a violation of the

plaintiff’s constitutional rights. See Gravelet-Blondin v. Shelton, 728 F.3d 1086, 1096 (9th

Cir. 2013); Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011).

To meet the “moving force” requirement, “the plaintiff must show both causation-in-fact

and proximate causation.” Gravelet-Blondin, 728 F.3d at 1096. A plaintiff can demonstrate

causation-in-fact “only if the injury would not have occurred ‘but for’ [the defendant’s]

conduct.” Chaudhry v. Aragón, 68 F.4th 1161, 1169 n.11 (9th Cir. 2023) (quoting White v.

Roper, 901 F.2d 1501, 1505 (9th Cir. 1990)). In the context of Monell liability, a plaintiff can

meet this burden by “establish[ing] that the injury would have been avoided had proper policies

been implemented.” Long v. County of Los Angeles, 442 F.3d 1178, 1190 (9th Cir. 2006)

(quotation marks omitted). To demonstrate proximate causation, a plaintiff must establish that

any “intervening actions were within the scope of the original risk and therefore foreseeable.”

Van Ort v. Est. of Stanewich, 92 F.3d 831, 837 (9th Cir. 1996) (quoting Dodd v. City of

Norwich, 827 F.2d 1, 6 (2d Cir. 1987)).

“A ‘policy’ is a deliberate choice to follow a course of action made from among various

alternatives by the official or officials responsible for establishing final policy with respect to the

subject matter in question.” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1143 (9th Cir. 2012)

(cleaned up). A plaintiff can show a “policy,” as that term is used for Monell liability, “in one of

three ways.” Sabra v. Maricopa Cnty. Cmty. Coll. Dist., 44 F.4th 867, 883 (9th Cir. 2022).

First, the [municipality] may be held liable if it acted pursuant to

an expressly adopted official policy. Second, the [municipality]

may be held liable based on a longstanding practice or custom.

Third, the [municipality] may be held liable if the individual who

committed the constitutional tort was an official with final policy-

making authority or such an official ratified a subordinate’s

unconstitutional decision or action and the basis for it.

Id. (quotation marks and citations omitted); see also Connick v. Thompson, 563 U.S. 51, 61

(2011) (“Official municipal policy includes the decisions of a government’s lawmakers, the acts

of its policymaking officials, and practices so persistent and widespread as to practically have the

force of law.”); Gordon v. County of Orange, 6 F.4th 961, 973-74 (9th Cir. 2021) (describing the

three ways “[a] plaintiff can satisfy Monell’s policy requirement”).

The Ninth Circuit recognizes that a local government body can be held liable under

§ 1983 for “policies” of inaction or omission. Some cases, generally older decisions, refer to this

as a separate “path” to liability distinct from the “direct path” of the municipality itself violating

the plaintiff’s rights or directing its employees to do so.2 See Gibson v. County of Washoe, 290

F.3d 1175, 1185 (9th Cir. 2002), overruled on other grounds by Castro v. County of Los Angeles,

833 F.3d 1060 (9th Cir. 2016); see also Tsao, 698 F.3d at 1144. In this separate path to liability,

2 “Under [the] ‘direct path’ to municipal liability, a plaintiff must prove that the

municipality acted with the state of mind required to prove the underlying violation, just as a

plaintiff does when he or she alleges that a natural person has violated his federal rights.”

Tsao, 698 F.3d at 1144 (quotation marks omitted).

a municipality can be held responsible “for a constitutional violation committed by one of its

employees, even though the municipality’s policies were facially constitutional, the municipality

did not direct the employee to take the unconstitutional action, and the municipality did not have

the state of mind required to prove the underlying violation.” Gibson, 290 F.3d at 1185; see also

Tsao, 698 F.3d at 1143; Hyun Ju Park v. City & County of Honolulu, 952 F.3d 1136, 1141 (9th

Cir. 2020). More recent cases, however, generally describe claims for such policies of inaction or

omission as a type of custom or practice claim. See, e.g., Sabra, 44 F.4th at 884; Gordon, 6 F.4th

at 973. Regardless of how such claims are categorized, the Ninth Circuit is consistent in

describing the heightened requirements that a plaintiff must show to prove a violation based on

inaction or omission to avoid imposing respondeat superior liability.

A policy of inaction or omission may be based on a government body’s “failure to

implement procedural safeguards to prevent constitutional violations.” Tsao, 698 F.3d at 1143;

see also Sabra, 44 F.4th at 884. A plaintiff who alleges a policy of inaction, however, must

establish that such a policy amounts to deliberate indifference to the plaintiff’s constitutional

rights. See Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 407 (1997); Hyun Ju

Park, 952 F.3d at 1141; see also Oviatt ex rel. Waugh v. Pearce, 954 F.2d 1470, 1474 (9th

Cir. 1992) (“To impose liability on a local governmental entity for failing to act to preserve

constitutional rights, a section 1983 plaintiff must establish: (1) that he possessed a constitutional

right of which he was deprived; (2) that the municipality had a policy; (3) that this policy

amounts to deliberate indifference to the plaintiff’s constitutional right; and (4) that the policy is

the moving force behind the constitutional violation.” (quotation marks omitted)).

“Deliberate indifference is a stringent standard of fault, requiring proof that a municipal

actor disregarded a known or obvious consequence of his action.” Connick, 563 U.S. at 61

(cleaned up). “Deliberate indifference exists when the need for more or different action is so

obvious, and the inadequacy of existing practice so likely to result in the violation of

constitutional rights, that the policymakers . . . can reasonably be said to have been deliberately

indifferent to the need.” Hyun Ju Park, 952 F.3d at 1141 (cleaned up). “This requires a showing

that the facts available to the [municipality] put it on actual or constructive notice that its

practices . . . were substantially certain to result in the violation of the constitutional rights of its

citizens.” Sandoval v. County of San Diego, 985 F.3d 657, 682 (9th Cir. 2021) (cleaned up).

Deliberate indifference ordinarily is shown through “a pattern of prior, similar violations of

federally protected rights, of which the relevant policymakers had actual or constructive notice.”

Hyun Ju Park, 952 F.3d at 1142. Deliberate indifference also may be shown if a policy is “so

facially deficient that any reasonable policymaker would recognize the need to take action.” Id.

at 1141.

2. Wellpath’s Alleged Policies

As a pretrial detainee, Rader had a clearly established, constitutional right to adequate

medical care under the Fourteenth Amendment. See Sandoval, 985 F.3d at 667. According to

Plaintiff, Wellpath violated that right with seven inadequate policies.

a. A Policy of Relying on Video Monitoring

Plaintiff first alleges that Wellpath had a policy of relying on remote video monitoring of

inmates and detainees instead of conducting physical visits. FAC ¶ 112(a). Plaintiff alleges

another instance of Wellpath adhering to this policy: the 2018 death of a person in custody at the

Jail who was only remotely monitored and not visited in person by Wellpath medical providers

who could have saved the person’s life. Id. ¶¶ 78, 92. Had Wellpath physically visited Rader,

Plaintiff continues, its staff would have recognized his serious medical and mental health needs

and treated him with prescription medication.

In fact, a Wellpath RN did physically visit Rader in his cell. Id. ¶ 57. The RN attempted a

physical examination, but documented that Rader refused the examination. Id. Even if a

completed physical examination would have discovered a need for prescription medication,

Wellpath’s failure to provide medication stems at most from the lack of the examination, and not

from a policy of relying on video monitoring. Further, Plaintiff does not allege that lack of

physical monitoring factored into Rader’s suicide. The Court therefore agrees with the Wellpath

Defendants that this policy does not support a Monell claim.

b. A Policy of Failing to Coordinate Care

Plaintiff next alleges a policy of failing to properly coordinate care, including by failing

to provide a written policy addressing this coordination or protocols through which to escalate an

inmate or detainee’s level of medical or mental health treatment. Id. ¶ 112(b). According to

Plaintiff, this policy of inaction caused County mental health providers to not coordinate Rader’s

care with Wellpath providers who could prescribe medication. See id. ¶¶ 45, 49-50, 52, 67.

Because this is the only theory of causation that Plaintiff supports with factual allegations, the

Court accordingly narrows its analysis of this policy.

Plaintiff alleges that, had Rader been provided access to Wellpath providers who could

prescribe medication, he may not have died of suicide. Id. ¶ 68. But Plaintiff fails to connect

Wellpath’s alleged coordination policy with this outcome. The FAC accounts three occasions

when Wellpath was involved with Rader’s health—its attempted examinations of Rader on June

15 (two attempts) and June 28, 2021. Id. ¶¶ 42, 57. Plaintiff does not allege that, if Wellpath had

a policy or protocols to address coordination of care, County mental health providers would have

acted differently or that Wellpath providers would have seen Rader more than these three times.

Plaintiff offers only general, conclusory allegations that a coordination of care would have made

a difference in Rader’s treatment. Plaintiff does not specifically allege how Wellpath’s

coordination of care was deficient or how that purported deficiency in coordination of care (as

opposed to Wellpath providing care) caused Rader’s suicide. This policy therefore does not

support a Monell claim.

c. A Policy of Failing to Provide Access to Qualified Health Providers

Plaintiff’s third alleged policy of inaction is of failing to provide access to qualified

medical and mental health providers, including by failing to prescribe medication, provide

constant observation, conduct intake screening, and transfer an adult in custody, if necessary, to a

facility equipped with such providers. Id. ¶ 112(c). Plaintiff alleges other instances when

Wellpath plausibly failed to provide access to qualified health providers to adults in custody

(unless otherwise noted, Wellpath provided both medical and mental health services):

• In 2015 in Pierce County, Washington, when that county complained of staff shortages

and lack of trained personnel, among other issues, id. ¶ 83;

• In 2016 in Collin County, Texas, when that county complained of 80 inmates waiting to

see a psychiatrist, id. ¶ 86;

• In 2017 in Kitsap County, Washington, when a person in custody did not see any health

provider after attempting suicide, and when that county later complained of Wellpath’s

staffing issues, id. ¶¶ 87, 90;

• In 2018 in Arapahoe County, Colorado, when a person in custody died by suicide soon

after booking and never saw any medical or mental health provider, id. ¶ 91;

• In 2018 in the (Yamhill) County, when a person in custody received no treatment for

severe alcohol withdrawal (Wellpath provided medical services only), id. ¶ 92;

• In 2018 in Clark County, Washington, when the county complained of Wellpath’s

“inability to staff,” id. ¶ 93;

• In 2018 in Josephine County, Oregon, when a person in custody with severe mental

illness died by suicide after not being seen by a health provider for her entire 40 days in

custody, id. ¶ 94; and

• In 2021 in the (Yamhill) County, when a person in custody died by suicide after

requesting, but not receiving, antidepressant medication (Wellpath provided medical

services only), id. ¶ 95.

In the above instances, except for those in the County, Wellpath provided both medical

and mental health services. Plaintiff does not explain how these instances demonstrate the same

type of failure as in Rader’s situation, where Wellpath only provided medical services. Drawing

all reasonable inferences in Plaintiff’s favor, however, this pattern of instances plausibly reflects

a longstanding practice of Wellpath’s that is sufficient to show the existence of the alleged

policy. Wellpath has a longstanding pattern and practice of failing to provide sufficient staffing,

whether medical, psychiatric, or both. Again viewing the facts in Plaintiff’s favor, these

instances put Wellpath on notice that its policy violates the constitutional rights of persons in

custody. These allegations are sufficient to show deliberate indifference. Cf. Tabb v. NaphCare,

2024 WL 1905638, at *7 (W.D. Wash. May 1, 2024) (finding that the plaintiff adequately

alleged that medical services had a “policy of inaction [of] ‘fail[ure] to provide adequate medical

care’” that amounted to deliberate indifference and was the cause of the constitutional violation).

Plaintiff also alleges sufficient facts to show causation at this stage of the litigation. She

alleges that Rader needed prescription medication to treat his mental health needs and that the

lack of medication factored into his suicide. FAC ¶ 67-68. Plaintiff connects this need to specific

facts: according to Plaintiff, the QMHPs who visited Rader noted a continuing suicide risk,

which indicates a potential need for prescription medication. Id. ¶ 52. Plaintiff contends that this

need would have been addressed with access to qualified medical providers. Id. ¶ 68.

The Wellpath Defendants argue that Wellpath had no obligation to provide access to

mental health care providers. This may be true to some extent, but the Wellpath Defendants do

not dispute that the County mental health providers who saw Rader could not prescribe

medication nor that Wellpath had an indirect role in mental health treatment for this reason. The

Court accordingly finds that this policy supports Plaintiff’s Monell claim against Wellpath.

d. A Policy of Conducting Improper and Incomplete Intake Screenings

Plaintiff next alleges a policy of conducting improper or incomplete screenings before

admitting or booking individuals. Id. ¶ 112(d). In addition to Wellpath’s failure to properly

screen Rader, Plaintiff alleges the death of a person in custody at the Jail in 2018 for whom

Wellpath did not complete an intake screening. Id. Plaintiff adds that in 2015, Pierce County,

Washington complained of Wellpath’s “failure to triage” and issues at booking. Id. ¶ 83. These

facts make it plausible that Wellpath had a longstanding practice of conducting improper or

incomplete intake screenings. The death in 2018 should have put Wellpath on notice of the risks

of incomplete intake screenings, so Plaintiff alleges enough to show deliberate indifference.

Plaintiff also adequately alleges causation: as discussed, a proper intake screening could

have revealed that Rader had health needs requiring prescription medication, extensive care, or

transfer. Although a Wellpath employee attempted to screen Rader on the day he was booked,

the employee submitted a Screening Exception Form that noted that Rader was on suicide watch

and was mentally unstable. Persons in custody who cannot be screened because of mental health

are often those who are in the greatest need of medical intervention, and instead of noting that

Rader may need additional treatment, the Wellpath employee simply filled out an exemption

form. Plaintiff alleges that the QMHPs’ notes on Rader showed continuing health needs, which

Wellpath had no opportunity to evaluate due to its failure to properly screen. Id. ¶ 52. Had

Wellpath evaluated Rader’s needs, Plaintiff alleges, it could have prescribed appropriate

medication, provided other appropriate care, or recommended that Rader be transferred. The

Court accordingly finds that this policy supports Plaintiff’s Monell claim against Wellpath.

e. A Policy of Insufficient Medical Coverage

Plaintiff’s fifth alleged policy is of providing insufficient medical coverage at the Jail. Id.

¶ 112(e). This policy is sufficiently stated to the same extent as the third alleged policy because

medical coverage is largely coextensive with access to medical providers. For the reasons

discussed supra, the Court finds that this policy has been adequately alleged.

f. A Policy of Failing to Meet Standards

Plaintiff’s sixth alleged policy is of failing to meet community standards of care for

medical and mental health services. FAC ¶ 112(f). This policy lacks sufficient specificity.

Without stating with which standards Wellpath fell short of and how, and how doing so caused

Rader’s suicide, the allegations do not “give fair notice and . . . enable” Wellpath “to defend

itself effectively.” Starr, 652 F.3d at 1216. Plaintiff does list a sampling of NCCHC Jail

Standards but does not connect them to Wellpath’s conduct except to say they required Wellpath

to coordinate care with the County. That concern was addressed by Plaintiff’s alleged policy of

failure to coordinate care, which the Court has found insufficient to support a Monell claim. The

Court accordingly finds this policy insufficiently alleged to support Plaintiff’s Monell claim.

g. A Policy of Relying on Inadequately Trained Jail Staff

Finally, Plaintiff alleges a policy of relying on inadequately trained Jail staff to conduct

medical monitoring of persons in custody at the Jail. FAC ¶ 112(g). Plaintiff does not explain

how this reliance caused Rader’s death and other injuries. To the extent the Court can infer

causation from Plaintiff’s factual allegations, the outcome is similar to the policies of relying on

video monitoring and failing to coordinate care: this policy only deprived Wellpath of additional

opportunities to discover Rader’s needs beyond the three opportunities that Wellpath had. The

Court accordingly finds this policy insufficiently alleged.

3. Underlying Constitutional Violation

The Wellpath Defendants also challenge whether Plaintiff has alleged an underlying

constitutional violation to support her Monell claims. Under Wellpath’s alleged policy of

conducting improper and incomplete intake screenings, the deliberate conduct was the actions

that Wellpath employees took in delaying screening and improperly documenting a refusal of

screening. Under Wellpath’s alleged policy of providing insufficient medical coverage, the

deliberate conduct was Wellpath’s allocation and provision of medical resources. Plaintiff has

adequately alleged underlying deliberate conduct to support her § 1983 Monell claim.

4. Summary

The Court allows Plaintiff’s § 1983 claim against Wellpath Defendants to proceed based

on the following alleged policies:

• Failing to provide access to qualified health providers;

• Conducting improper and incomplete intake screenings; and

• Providing insufficient medical coverage.

The Court dismisses Plaintiff’s § 1983 claim against Wellpath Defendants as to the

following alleged policies:

• Relying on video monitoring;

• Failing to coordinate care;

• Failing to meet standards; and

• Relying on inadequately trained Jail staff.

B. Supervisory Liability Claim

Plaintiff’s third claim for relief asserts a § 1983 supervisory liability claim against RN

Petrasek, Dr. Shah, and John Does 6-10, all employees of Wellpath with duties to supervise other

Wellpath staff. In each instance in which Plaintiff alleges liability, the acts boil down to failing to

correct inadequate Wellpath policy.

Liability under § 1983 requires “personal participation by the defendant. A supervisor is

only liable for the constitutional violations of . . . subordinates if the supervisor participated in or

directed the violations, or knew of the violations and failed to act to prevent them. There is no

respondeat superior liability under [§] 1983.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989)

(cleaned up). Supervisors “can be held liable for: 1) their own culpable action or inaction in the

training, supervision, or control of subordinates; 2) their acquiescence in the constitutional

deprivation of which a complaint is made; or 3) for conduct that showed a reckless or callous

indifference to the rights of others.” Hyde v. City of Willcox, 23 F.4th 863, 874 (9th Cir. 2022)

(quoting Cunningham v. Gates, 229 F.3d 1271, 1292 (9th Cir. 2000)). Supervisory liability

requires “(1) [a supervisor’s] personal involvement in the constitutional deprivation, or (2) a

sufficient causal connection between the supervisor’s wrongful conduct and the constitutional

violation.” Rodriguez v. County of Los Angeles, 891 F.3d 776, 798 (9th Cir. 2018) (quoting

Keates v. Koile, 883 F.3d 1228, 1242-43 (9th Cir. 2018)). “The requisite causal connection can

be established by setting in motion a series of acts by others, or by knowingly refusing to

terminate a series of acts by others, which the supervisor knew or reasonably should have known

would cause others to inflict a constitutional injury.” Id. (cleaned up).

RN Petrasek worked as a nurse and Health Services Administrator at the Jail. In that role,

Plaintiff alleges that RN Petrasek was responsible for implementing Wellpath’s policies and

procedure, including the administration of the contract between Wellpath and the County,

ensuring that policies exist to provide persons in custody with necessary care, and supervising

Wellpath medical staff. Plaintiff also alleges that RN Petrasek oversaw and administered the

Jail’s medical policies. Plaintiff further alleges that RN Petrasek knew that the County mental

health providers could not provide prescription pharmaceuticals to persons in custody and failed

to take steps to ensure coordination of care between Wellpath providers and mental health staff.

The Wellpath Defendants argue that these allegations do not show personal involvement by RN

Petrasek. The Court agrees. As an initial matter, RN Petrasek cannot have supervisor liability for

the alleged policies for which Plaintiff fails to state a claim. Plaintiff also does not plausibly

allege that RN Petrasek had sufficient personal participation in the policies by merely being

responsible for implementing, not developing, Wellpath’s policies. Plaintiff therefore has not

stated a § 1983 supervisory liability claim against RN Petrasek.

Dr. Shah, a resident of California, was further removed from the Jail. Dr. Shah worked

for Wellpath as a regional director for a region including Oregon. This position’s exact duties do

not appear in Plaintiff’s FAC, but Plaintiff does allege that Dr. Shah was in charge of oversight

and clinical support for Wellpath providers at the Jail. Plaintiff does not allege that Dr. Shah

knew about problems at the Jail, but only that he should have known. With nothing to show a

closer connection between Dr. Shah and the policies that violated Rader’s constitutional rights,

the FAC lacks sufficient factual allegations to state a facially plausible § 1983 supervisory

liability claim against Dr. Shah.

The Wellpath Defendants observe that Plaintiff alleges substantially nothing about John

Does 6-10. Plaintiff does not respond, conceding the point. See Walsh v. Nev. Dep’t of Hum.

Res., 471 F.3d 1033, 1037 (9th Cir. 2006) (“A plaintiff who makes a claim . . . in his complaint,

but fails to raise the issue in response to a defendant’s motion to dismiss . . . has effectively

abandoned his claim. . . .”). Plaintiff has thus not stated a § 1983 supervisory liability claim

against John Does 6-10.

C. Negligence and Gross Negligence Claims

Plaintiff’s fourth and fifth claims for relief assert negligence and gross negligence claims

against Wellpath. The operative complaint alleges instances of negligence that are specific to

Rader, but Plaintiff also realleges and incorporates all previous paragraphs such that the Court

may consider Wellpath’s underlying policies. The Wellpath Defendants move to dismiss these

claims, raising agency issues and challenging the factual sufficiency of Plaintiff’s allegations.

Common-law negligence under Oregon law generally requires:

(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 plaintiff’s harm, and (5) that plaintiff was within the class of

persons and plaintiff’s injury was within the general type of

potential incidents and injuries that made defendant's conduct

negligent.

Solberg v. Johnson, 306 Or. 484, 490-91 (1988), abrogated on other grounds by Deckard v.

Bunch, 358 Or. 754 (2016). If there is a special relationship, however, the foreseeability element

is replaced by a duty-breach analysis. Fazzolari v. Portland Sch. Dist. No. 1J, 303 Or. 1, 17

(1987). Inmates and their jailors have a special relationship. See Hanington v. Multnomah

County, 593 F. Supp. 3d 1022, 1044 (D. Or. 2022) (collecting cases); Crane v. United

States, 2013 WL 1453166, at *5 (D. Or. Mar. 21, 2013) (stating that deputies must “care for the

prisoners in their custody and generally protect them from harm”); see also Or. Rev. Stat.

§ 169.140 (“[L]ocal correctional facility shall . . . supply . . . necessary medical aid.”). When a

party delegates its constitutional or statutory duty to another party and the contractor assumes

that responsibility, the contractor assumes that obligation and is subject to the same standard of

care. See Simms-Belaire v. Washington County, 2024 WL 279020, at *19 (D. Or. Jan. 25, 2024)

(finding contractor subject to same statutory duties as county).

Gross negligence “is negligence of a substantially greater degree than that of ordinary

negligence.” Howard v. Chimps, Inc., 251 Or. App. 636, 647 (2012) (quotation marks omitted).

“To establish gross negligence, plaintiff [must] show that defendant acted with reckless disregard

of safety or indifference to the probable consequences of its acts.” Id.

A plaintiff can allege a claim against an employer for negligence in hiring, instructing, or

supervising. See Vaughn v. First Transit, Inc., 346 Or. 128, 138 n.7 (“[A] principal may be

directly liable for the tortious act of an agent if . . . the principal itself was negligent in hiring,

instructing, or supervising the agent.”). Negligence also allows for respondeat superior liability.

“Under the doctrine of respondeat superior, an employer is liable for an employee’s tort when

the employee acts within the course and scope of employment.” Minnis v. Or. Mut. Ins., 334

Or. 191, 201 (2002). “A principal is liable to third persons for . . . torts and omissions of duty of

his agent, when acting in the course of his employment . . . even if he forbade the acts or

disapproved of them.” Larisa’s Home Care, LLC v. Nichols-Shields, 362 Or. 115, 138 (2017)

(quoting White v. Gordon, 130 Or. 139, 143 (1929)).

Plaintiff alleges eight ways that Wellpath was allegedly negligent and grossly negligent:

• Failing to properly and fully screen Rader at the time that he was admitted to the Jail;

• Failing to recognize that Rader was not medically stable, was in need of mental health

treatment, and was a risk to himself or others;

• Failing to adequately monitor Rader in his cell;

• Relying on remote video monitoring;

• Failing to coordinate care;

• Failing to ensure that Rader received access to qualified medical and mental health

providers;

• Failing to ensure that staffing levels were sufficient to adequately monitor persons in

custody; and

• Failing to ensure that the policies and practices then-existing at the Jail met widely

accepted community standards of care.

FAC ¶¶ 129, 132. These instances are identical to or encompassed in the seven policies alleged

in Plaintiff’s § 1983 claim. For the policies that Plaintiff adequately alleges Wellpath’s deliberate

indifference under § 1983, Plaintiff has sufficiently alleged that Wellpath met the less stringent

standard of negligence. Plaintiff has also adequately alleged that Wellpath was grossly negligent

because deliberate indifference meets the gross negligence standard of acting with “reckless

disregard of safety or indifference to the probable consequences of its acts.” Howard, 251 Or.

App. at 647. For the instances where Plaintiff has not alleged deliberate indifference, Plaintiff

fails to allege causation and thus also does not allege negligence and gross negligence. The Court

therefore allows Plaintiff’s negligence and gross negligence claims to proceed based only on the

following instances: failing to screen Rader fully and properly; failing to recognize that Rader

was not medically stable3; and failing to ensure that Rader had access to qualified health

providers.

CONCLUSION

The Court GRANTS IN PART AND DENIES IN PART Defendants Wellpath, Petrasek,

and Shah’s Motion to Dismiss. ECF 39. The Court grants the motion against Plaintiff’s § 1983

claim in part as described herein, claims based on supervisory liability, and negligence and gross

negligence claims in part as described herein. The Court denies in part the motion against

Plaintiff’s § 1983 claim and negligence and gross negligence claims in part as described herein.

The Court dismisses all claims without leave to amend at this time.

IT IS SO ORDERED.

DATED this 16th day of October, 2024.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge

3 This instance was not one of the policies alleged in Plaintiff’s § 1983 claim, but it is

encompassed within the policy of failure to conduct proper screenings.