United States District Court, D. Oregon, Portland Division
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.
OPINION AND ORDER
AIKEN UNITED STATES DISTRICT JUDGE
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.
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).
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.
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.
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.
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
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
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.
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).
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
Summary Judgment on Plaintiffs' 42 U.S.C. § 1983
Claims is Granted in Part and Denied in Part.
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."
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.
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.
Defendants' Motion for Summary Judgment on
Plaintiff's § 1983 Claims Against Marion County is
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.
governments 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 ...