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Stanford v. Washington County

United States District Court, D. Oregon

August 9, 2018

DARIAN STANFORD, as Personal Representative of the ESTATE OF AIMIE ZDRANTAN, and A.B., by and through her Guardian, Stelian Zdrantan, Plaintiffs,
WASHINGTON COUNTY, a municipal corporation of the State of Oregon; WASHINGTON COUNTY COMMUNITY CORRECTIONS CENTER, a municipal corporation of the State of Oregon; STEVE BERGER, an individual; KARLEIGH MOLLAHAN, an individual; PETER DAN, an individual; and DOREEN DREYER, an individual, Defendants.

          Shenoa L. Payne Kirc T. Emerson Richardson Wright LLP John M. Coletti, III Paulson Coletti Attorneys for Plaintiffs

          Christopher A. Gilmore Kimberly Stuart Office of Washington County Counsel Gerald L. Warren Law Office of Gerald L. Warren and Associates Attorneys for Defendants


          John Jelderks U.S. Magistrate Judge

         Plaintiff Darian Stanford, as Personal Representative of the Estate of Aimie Zdrantan; and Plaintiff A.B., by and through her guardian ad litem, Stelian Zdrantan, bring this action against Defendants Washington County (“the County”), Washington County Community Corrections Center (“Center”), and County employees Steve Berger, Karleigh Mollahan, Danita Gorman, Peter Dan and Doreen Dryer. Plaintiffs allege wrongful death and negligent infliction of emotional distress claims against Defendants under state law and also assert a claim under 42 U.S.C. §1983 for alleged Fourteenth Amendment substantive due process rights violations. Pending before the Court is Defendants' motion for summary judgment.

         For the reasons set forth below, Defendants' motion is granted with respect to Plaintiff's Due Process Claim and state law claim for Negligent Infliction of Emotional Distress. The Court retains jurisdiction of Plaintiff's supplemental state law claim for wrongful death and denies Defendants' motion for summary judgment as to that claim.


         This case revolves around the death of Aimee Zdrantan, who was murdered in her apartment by her long-time boyfriend Eric Petersen. At the time of the murder, Petersen was a resident at the Center, serving an alternative sanction sentence for a probation violation. Plaintiff A.B. is the now five-year old child of Ms. Zdrantan and Petersen and was in the apartment at the time of the murder.

         I. The Washington County Community Corrections Center

         Washington County maintains the Washington County Community Corrections Center (Center) to provide eligible individuals who are serving criminal sentences transitional services and opportunities through participation in a minimum security residential work-release center. The Center thus serves as an alternative to full-time confinement. Residents of the Center are allowed the opportunity to seek treatment, establish housing for after their release, and seek employment and other community connections in order to facilitate a successful re-entry into the community. Residents are allowed to temporarily leave the Center in order to pursue these resources.

         In 2014 the Center served 2, 169 residents. (Berger Decl. p. 2). In that year, 84 percent of residents successfully participated through the end of their sentences in the resources offered by the Center. (Id.). New crimes of any kind by Center residents have historically been less than one percent with the commission of new crimes of violence at a fraction of one percent. (Id.).

         An individual's eligibility to serve his sentence at the Center can only be considered if the sentencing court first orders that the offender is eligible for alternative sanctions. ORS 137.752. Felony sentences of more than 12 months for a violent crime or sexual offense disqualify the individual from candidacy for the Center. ORS 137.124, 137.752. Otherwise, the sentencing judge has discretion to determine if alternative sanctions are appropriate under the circumstances for the particular offender facing sentencing. A judge's order authorizing alternative sanctions allows the offender to participate in Center programs unless he is otherwise disqualified.

         After a judgment is entered authorizing alternative sanctions, the inmate is then screened for transfer from jail to the Center. The process and standards include the following: 1) an inmate in the Washington County Jail must request a transfer to the Center and pay a fee; 2) inmates “should be those that will benefit from the [Center] program opportunities and not present a risk to the public;” 3) the inmate must display and have a history of good behavior and have a low or medium classification level. (Frohnert Decl., Ex. 1, Jail Policy J-6-10).

         In addition to Jail Policy, the Center has its own criteria for acceptance. Subjective criteria include that the inmate agree to adhere to Center program policy, rules and regulations; to cooperate with staff and clients; that the inmate have the mental and emotional capacity to participate in the program; and that the inmate “be in touch with reality and in control of violent behavior.” (Wright Decl., Ex. 1). Every inmate entering the Center must sign a Conditions and Agreement form and comply with the eligibility criteria. Misconduct or misbehavior at the Center can result in an automatic return to jail.

         Once an inmate is accepted to the Center and intake is complete, he or she attends an orientation and signs the Conditions and Agreement form. Following orientation, each resident is assigned a residential counselor who, within 48 hours of intake, meets with the resident to assess needs and develop a case plan if necessary. (Wright Decl. Exs. 4, 5). No formal case plan is required if a resident will be in the Center for less than 30 days but residents still receive directives regarding supervision requirements, treatment, and attendance in other activities through the Center. (Wright Decl. Ex. 5). During this initial meeting, the counselor is required to identify any victims, no-contact orders, restraining orders or protective orders. (Wright Decl. Ex. 5, p. 9). The Center's policy directs that:

Per protocol, the counselor is responsible to contact the victim . . . of record and inform them that the resident is currently in custody and will have opportunities to be out in the community. . . The counselor should document that this contact has taken place.

(Wright Decl. Ex. 5, p. 9)

         Residential counselors are trained to attempt to locate the correct victim contact information in order to attempt to contact the victim but that “the reality is that doesn't always happen.” (Gilmore Decl. Ex. 8, Gorman Dep. p. 18). Counselors do not reach every victim they attempt to contact but failure to contact a victim does not preclude a resident from participating in Center programs, including temporary release into the community. (Id. pp. 21-22). A resident who violates a no-contact order is immediately returned to jail. (Wright Decl. Ex. 5, p. 9).

         After a seven day blackout period, residents in good standing may be given a pass by Center counselors so that they may engage in community based programs. (Wright Decl. Ex. 6). There are two categories of passes: social passes and mini-passes. Mini-passes are described in the Residential Counselor's Manual as

generally for use on short passes of four hours or less. Mini-passes are used for the purpose of attending treatment, legal appointments, medical appointments, job interviews, self-help support groups, and personal business at counselor's discretion if eligible based on custody status.

(Wright Decl. Ex. 5, p. 26). Prior to the issuance of a mini-pass for the purpose of seeking employment, the resident must complete an additional list of requirements. (Gilmore Decl. Ex. 8, Gorman Depo. Ex. 4, p. 29). It is the policy of the Center that all qualified unemployed residents pursue gainful employment prior to their re-entry into the community and be afforded passes into the community to do so. However, counselors have discretion to authorize passes based on the resident's “program compliance and appropriate behavior while a resident of the Center.” (Wright Decl. Exs. 5, 6).

         If a resident is an hour late returning from an approved pass, Center policy directs that staff attempt to locate the resident by making contact with family, significant others, employers and/or the approved visit site. Staff are also directed to notify victims. (Wright Decl. Ex. 8, p. 3). Once a resident is three hours late, the Unauthorized Departure (UAD) process is initiated and staff are directed to notify the resident's probation officer, jail booking, and non-emergency dispatch. Staff are also required to complete a UAD procedure worksheet and an Escape/UAD Incident Report. Supervisory staff are to review the completed worksheet at the time of the UAD “to ensure all protocol is handled and appropriate phone calls are made if needed.” (Id.).

         In the event Center staff become aware a resident has entered an unauthorized area either inside or outside the Center, the infraction is treated as a Major Violation. (Payne Decl. Ex. 5, p. 41). A Major Violation is an internal Center disciplinary measure that can result in sanctions ranging from lengths of time on restriction to return to jail. (Wright Decl. Ex. 5, p. 15).

         II. Petersen's Transfer to the Center

         On August 6, 2014, while walking with Ms. Zdrantan and A.B. in Hillsboro, Petersen was arrested on an outstanding warrant for non-compliance with his probation conditions. Although there was a no-contact order in place, Petersen and Ms. Zdrantan were living together at the time and Petersen was caring for A.B. while Ms. Zdrantan worked.

         A probation violation hearing was held on August 18, 2014 in Washington County Circuit Court. Ms. Zdrantan attended the hearing. At the conclusion of the hearing, Judge Letourneau indicated in court that he would sentence Petersen to “60 days, credit for time served, alternative sanctions. Hopefully you can work at the center and, you know, get a positive start before you hit the - hit pavement again.” (Gilmore Decl. Ex. 6, p. 9). A Judgment was subsequently entered authorizing alternative sanctions.

         Petersen was then returned to jail and applied for transfer to the Center. On August 20, 2018, Petersen was transferred to the Center. He met with Defendant Danita Gorman, his assigned residential counselor, on the following day. According to Gorman, there was nothing in Petersen's demeanor, behavior or responses to her inquiries that gave her any concerns about his ability to participate in Center programs. (Gorman Decl. p. 2). Gorman asked Petersen if he had contact information for the victims listed in his file and he indicated that he did not. (Id.). Gorman subsequently searched the AS400 “Chronos” log and found that the most recent phone number for Ms. Zdrantan had been disconnected. Jail records also did not have a number. After her meeting with Petersen, Gorman sent an email to his probation officer seeking valid contact information. (Gorman Depo. pp. 24, 27-28). She did not receive a response before Petersen was issued a mini-pass on August 28, 2018. (Id. at p. 25).

         III. The Events of August 28, 2014

         On August 28, 2014, after the seven-day blackout period, Petersen received authorization to leave the Center to seek employment through Labor Ready. His first pass was at 5:37am which was when Labor Ready wanted potential laborers to appear. When Petersen arrived at Labor Ready early that morning, he was not able to provide sufficient forms of identification and the staff were not able to locate him in the system due to confusion regarding the spelling of his name. (Alex Depo. pp. 34-37). He was sent back to the Center and checked in at 8:25am. (Dan Depo. p. 56). Labor Ready later contacted the Center and asked that Petersen return to Labor Ready as they had located him in the system and needed him to provide updated information and his identification. (Alex Depo. pp. 17, 22). Petersen was issued a mini-pass at 9:45am in order to go to Labor Ready. The mini-pass required him to return to the Center by 12pm.

         After arriving at Labor Ready and waiting for staff to assist him, Petersen was told that he did not have the proper forms of identification with him and that he was to return to the Center. He was told that he had about 15 minutes to do so. (Id. at p. 23). Labor Ready is located three or four blocks away from the Center. Petersen left Labor Ready at approximately 10:30am. (Id. at pp. 25-26).

         Instead of returning to the Center, Petersen headed in the direction of Ms. Zdrantan's apartment about two miles away. On the way he encountered Ms. Zdrantan and A.B. walking along the side of the Tualatin Valley Highway. During their encounter, they had and argument. Ms. Zdrantan called her mother, Alice Alinger, from her cell phone and part of the argument was recorded on Ms. Alinger's voicemail around 10:41 a.m. (Petersen Decl. ¶¶ 10-14; Petersen Depo. p. 17; Gilmore Decl. Ex. 11, Nos. 24, 25). Ms. Zdrantan told Petersen to leave or she would call his probation officer. Ms. Zdrantan and Petersen parted. Petersen first walked in the direction of the Center and then doubled back to walk to the apartment he had shared with Ms. Zdrantan to collect his belongings. (Petersen Decl. ¶¶ 12-13).

         At the apartment, Petersen encountered Leticia Godinez, the apartment manager. He asked if Ms. Zdrantan was home and when Godinez responded that she didn't know he left to check. (Godinez Depo. pp. 48-50). When he returned he asked Godinez if she would open the apartment for him so he could retrieve his belongings. (Id. p. 50-51). Godinez refused. Petersen continued to wait in the apartment complex office and used Godinez's cell phone and office phone multiple times in an attempt to contact Ms. Zdrantan. (Id. at pp. 53-56).

         At approximately 11:53am, Petersen used Godinez's office phone to call the Center. He reported to Center employee Peter Dan that he was going to be late for his noon return deadline; that he was near the Clackamas Town Center and that he didn't want to go back to jail. (Dan Depo. pp. 74-77; 84). Dan told him that if he was under three hours late he would receive a Major Violation but that he would not automatically be returned to jail. (Id. at p. 84). According to his deposition testimony, Dan was “trying to minimize, in [Petersen's] mind, how much trouble he's in, so to increase the chances that he would actually come back.” (Id. at pp. 76-77). Dan's general sense was that Petersen was not going to return to the Center. (Id.). Dan documented the call and when, his co-worker, Doreen Dryer, returned from lunch at 12:30pm, they initiated the Unauthorized Departure process. (Dan Depo. pp. 54, 87-88; Dryer Depo. pp. 41-43).

         Petersen's file was retrieved from Gorman and Dan informed Dryer that there were victims to be contacted. Dan assumed Dryer's front counter duties so that she could proceed with the UAD process. (Id.). At some point after 1pm, Dryer attempted to call the numbers listed in Petersen's file for Ms. Zdrantan but was told by Gorman ...

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