Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Hernandez v. Marion County

United States District Court, D. Oregon, Portland Division

December 3, 2017

DARLENE HERNANDEZ, Conservator for Jose Angel Rafaesl Hernandez II, Plaintiff,
MARION COUNTY, apolitical subdivision of the State of Oregon; MARION COUNTY SHERIFF'S OFFICE, as a department of Marion County; MARION COUNTY JAIL, a correctional facility controlled by the Marion County Sheriffs Department; JASON MEYERS, in his capacity as Marion County Sheriff; SHEILA LORANCE, in her capacity as administrator of Marion County correctional institutions; CURTIS HENCKEL, an individual; and DOES 1-3, Defendants.



         This civil rights action concerns an attempted suicide. Plaintiff Darlene Hernandez, as conservator for Jose Angel Rafael Hernandez II ("Hernandez"), alleges that individual and agency defendants acted with deliberate indifference and negligence while Hernandez was in custody at the Marion County Jail ("MCJ"), causing Hernandez's serious injury by attempted suicide. Plaintiff alleges violations of the Eighth Amendment to the United States Constitution and the Oregon common law of negligence. Before me is defendants' motion for summary judgment. As explained in greater detail below, defendants' motion is granted in part and denied in part.


         The following undisputed facts are those relevant and necessary to resolving this dispute. In 2012, Hernandez pleaded guilty to Delivery of a Controlled Substance to a Minor (Heroin) and Sexual Abuse in the Second Degree and was sentenced to 60 months' probation under the supervision of Marion County Community Corrections ("MCCC"). At his first monthly probation meeting on January 15, 2013, on a form provided to Hernandez each time he would visit his probation officer, Hernandez indicated that he had not "had thoughts or made plans to kill [himself]." He indicated the same at his meeting with probation on March 20, 2013. Sometime in April of 2013, Hernandez was admitted to mental health and drug addiction treatment in Vancouver, WA. On April 11, 2013, plaintiff contacted Deputy Burton, Hernandez's probation officer, and told her that she had admitted her son to mental health and addiction treatment because he was "suicidal." Darlene Hernandez Dep 23:6 8 (doc. 50 at 9).

         Beginning May 9, 2013, and through June 17, 2013, Hernandez's Chemical Dependency Professional ("CDP") reported no discussion or mention of any suicidal thoughts or plans in the course of their treatment; she made this notation a total of fifteen times over nearly 40 days. During that same period, Hernandez continued to attend his monthly meetings with probation. At his May 14, 2013 meeting, Hernandez told Deputy Groom, a probation officer filling in for Deputy Burton, that he had been admitted to treatment in April because he was suicidal. However, he also noted that he was no longer suicidal. He indicated the same at his June 13, 2013 meeting with Deputy Burton as well as at his next month's meeting on July 11, 2013.

         On June 30, 2013, police visited Hernandez's residence in response to a call from his then-girlfriend (and victim in his underlying sexual abuse conviction), E.R., who told police that Hernandez was in the process of hanging himself. Police determined that Hernandez was not at risk and that the call was a "false alarm." Higgins Decl. ¶ 6. For that reason, the encounter was not reported to Deputy Burton or anyone at MCCC.

         Hernandez was admitted to MCJ on August 14, 2013 after being arrested for violating the terms of his probation. He was housed at MCJ for three full days, from the afternoon of August 14 to the afternoon of August 17, and had only three conscious encounters with MCJ staff in that time. His first encounter was his intake screening at 3:47 p.m. on August 14 by Jail Nurse Pamela Lash. Ms. Lash identified numerous "open, weeping sores" on Hernandez's body and placed him on "medical watch." Stewart Decl. ¶¶ 6-7.

         Hernandez's second encounter with MCJ staff occurred later that same day at 6:33 p.m. Hernandez was interviewed by Deputy Russell Brazeal and asked if he had ever tried to hurt or kill himself. Hernandez told Deputy Brazeal he had recently attempted suicide in April by using "pills." Brazeal Decl. ¶ 3. Deputy Brazeal asked Hernandez if he was currently contemplating suicide; Hernandez said that he was not.

         Hernandez's final encounter with MCJ staff occurred the next day at approximately 10:30 a.m. He was examined by Dr. Aaron Vitells. He told Dr. Vitells that he picked at his skin lesions because of his anxiety and had been picking at them for several weeks. Dr. Vitells noted that Hernandez appeared "significantly anxious" and was showing symptoms of heroin withdrawal. Stewart Decl. ¶ 9. Dr. Vitells prescribed Hernandez medication both for his anxiety and his open sores. Immediately after the examination, Dr. Vitells reported his observations to Dr. Lisa M. Stewart, mental health specialist at MCJ, who had planned to follow up with Hernandez.

         Although Dr. Stewart observed Hernandez's intake screening with Ms. Lash, she would never end up speaking with Hernandez. Her first attempt to do so occurred later on August 15, 2013, sometime after Hernandez's examination by Dr. Vitells. Hernandez was asleep at the time, and Dr. Stewart did not wake him. Hernandez was asleep again the next day when Dr. Stewart visited him during her early afternoon rounds. Again she did not wake him. Dr. Stewart "believed that plaintiff being asleep in the afternoon after taking his medication was a good sign that the medication for his anxiety was working." Stewart Deck ¶ 11.

         The following day, sheriffs deputies observed Hernandez sleeping again, this time "with his back to the door." Montoya Decl. Ex. 18. That observation occurred at 12:35 p.m. on August 17, 2013, when deputies made their security/welfare check of the medical "contact isolation" unit. Id. Almost 25 minutes later, after over 48 hours in his cell without any contact with anyone at MCJ, Hernandez was found hanging from the air vent in his cell. In the 24 hours leading up to his suicide attempt, Hernandez could be heard sobbing through the walls of his cell. Benton Dep. 5:22-6:11 (doc. 56 at 56-57).


         Summary judgment is proper where the "movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A grant of partial summary judgment is appropriate where genuine disputes of material fact exist for only some claims. See Circle K Stores, Inc. v. Ziilman, 827 F.Supp.2d 1251, 1256 (D. Or. 2011) (citing Fed.R.Civ.P. 56(a) and noting that the standard for partial summary judgment is the same as the standard for summary judgment). An issue of material fact is considered genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When considering a motion for summary judgment, courts must draw all reasonable inferences in favor of the nonmoving party. Id. at 255.


         I. Summary Judgment on Plaintiffs' 42 U.S.C. § 1983 Claims is Granted in Part and Denied in Part.

         The Ninth Circuit Court of Appeals "has noted that the first question in any § 1983 action is whether the section is the appropriate basis for a remedy." Ketchum v. Alameda Cty., 811 F.2d 1243, 1245 (9th Cir. 1987) (footnote omitted). A successful claim under § 1983 "requires two essential elements: (1) the conduct that harms the plaintiff must be committed under color of state law (i.e., state action), and (2) the conduct must deprive the plaintiff of a constitutional right." Id.

         Claims under § 1983 may allege unconstitutional acts by either individual persons or local governments-or, as in this case, both. In her first claim, plaintiff alleges that defendants Marion County, the Marion County Sheriffs Office ("MCSO"), MCJ, Sheriff Meyers, and Commander Lorance violated Hernandez's Eighth Amendment rights in their management and operation of MCJ. In her second claim, plaintiff alleges violation of Hernandez's Eighth Amendment rights by Sergeant Henckel and unnamed corrections officers as a result of their deficient care of Hernandez while he was in their custody.

         As to claim one, defendants aver that plaintiffs have not shown the existence of a deficient policy, practice, custom, or procedure capable of giving rise to liability under § 1983. Responding to plaintiffs second claim, defendants maintain that plaintiffs have failed to establish that Sergeant Henckel was deliberately indifferent to the risk that Hernandez would harm himself. Moreover, and regardless of the outcome of that inquiry, defendants also assert that Sergeant Henckel is protected by qualified immunity.

         A. Defendants' Motion for Summary Judgment on Plaintiff's § 1983 Claims Against Marion County is Denied.

         Plaintiff avers four theories of Marion County's liability under § 1983: that it was the policy or custom of Marion County (1) "to operate [MCJ] without adequate mental health services", (2) "to operate [MCJ] overcapacity, " (3) to operate MCJ in a manner that is out of compliance with State and County standards, and (4) to operate MCJ "in a manner that exhibited deliberate indifference to [Hernandez's] Constitutional rights[.]" Compl. ¶¶ 31-34.

         Local governments[1] may by liable under § 1983 when "the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers." Monell v. Dep't of Soc. Servs, of City of N.Y.,436 U.S. 658, 690 (1978). In her Response to Defendants' Motion for Summary Judgment, plaintiff fails to identify any evidence creating a genuine issue of material fact that defendants maintained an official policy ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.