Opinion
3:19-CV-00969-AC
07-06-2021
TAMMY L. THOMSEN, Personal Representative of the Estate of DALE L. THOMSEN, Deceased, Plaintiff, v. NAPHCARE, INC., an Alabama Corporation; WASHINGTON COUNTY, a government body in the State of Oregon; PAT GARRETT, in his capacity as Sherriff for Washington County; ROBERT DAVIS, an Individual; DON BOHN, an Individual; JULIE RADOSTITZ, an Individual; MELANIE MENEAR, an Individual; KATHY DEMENT, an Individual; KATIE BLACK, an Individual; ANDREA JILLETTE, an Individual; MORGAN HINTHORNE, an Individual; RACHEL STICKNEY, an Individual, Defendants.
FINDINGS AND RECOMMENDATION
JOHN V. ACOSTA, UNITED STATES MAGISTRATE JUDGE
Introduction
Plaintiff Tammy L. Thomsen ("Plaintiff), the Personal Representative of the Estate of Dale L. Thomsen ("Thomsen"), filed this lawsuit against Defendants NaphCare, Inc. ("NaphCare"), Washington County (the "County"), and assorted Naphcare and Washington County employees and administrators, alleging a variety of claims under 42 U.S.C. § 1983 ("Section 1983") and Oregon law arising from Thomsen's death while in custody at the Washington County jail (the "Jail"). Before the court is Washington County Defendants' Motion for Summary Judgment ("Motion"). (Washington Cty. Defs.' Mot. Summ. J., ECF No. 17 ("Mot.")). For the reasons that follow, the district judge should GRANT the Motion with respect to Defendants Pat Garett ("Garrett"), Robert Davis ("Davis"), and Don Bohn ("Bohn") (collectively, the "individual defendants"), and DEFER ruling as to Washington County pending further briefing by the parties.
On November 19, 2019, the court granted Plaintiffs Motion to Defer Washington County Defendants' Motion for Summary Judgement, and ordered limited discovery and further briefing only as to the qualified immunity portion of the Washington County Defendants' Motion. (ECF No. 51.) Consistent with the court's order, Plaintiff has not filed a response to the Motion with respect to the claims against Washington County.
Background
I. The Jail HealthCare Program
Since 1998, the County has contracted with private health care organizations to provide medical and mental health services to individuals in custody in the Jail. (Compl., ECF No. 1, ¶ 19.) Under the vendor model adopted by the County, the contractor, in exchange for a monthly fee, "was responsible for providing all healthcare services for [individuals in custody in the Jail] and indemnified the County against any claims arising from its provision, or failure to provide, healthcare services." (Decl. of Tim Jones in Supp. of Pl's Resp. to Washington County Defs.' Mot. for Summ. J., ECF No. 83 ("Jones Decl."), Ex. 106 at 27.) For over fifteen years after moving to a vendor model, the County contracted with the same provider, Corizon Health Services ("Corizon"), to deliver medical services in the Jail. (Id.)
During the events giving rise to this action, responsibility for the Jail health program was vested with a Medical Advisory Committee ("MAC"); a Continuous Quality Improvement ("CQI") Committee; the County Nurse Practitioner; the County Qualified Medical Authority ("QMP"); the County Contract Administrator; the Jail Health Care Liaison; and the County Counsel Liaison. (Decl. of Heidi L. Mandt in Supp. of Reply Br. in Supp. of Mot. for Summ. J. Filed on Behalf of Pat Garrett, Robert Davis, and Don Bohn, ECF No. 98 ("Mandt Decl"), Ex. 10.) The MAC and CQI Committees were composed of the individual County officials listed above, as well as medical file audit staff and the Jail healthcare vendor's leadership team. (Id., at 1.)
The County Contract Administrator and the Jail Health Care Liaison were charged with administering the Jail health contract and overseeing the day-to-day delivery of medical services in the Jail. (Id. at 2.) Specifically, the County Contract Administrator was responsible for;
. . . adhering to the County Purchasing Rules; contract administration procedures; processing amendments; approving invoices; monitoring contract requirements through the contract monitoring plan; enforcement of standards; understanding the NCCHC standards as they apply to the County Jail facilities; attendance at the MAC and QCI meetings; supervising the County Nurse Practitioner; responding to level three grievances in collaboration with the QMP and County Nurse Practitioner; developing process and procedures involving administration of this agreement; informing senior management of issues that may involve County risk or budget exposure; develop, review and analyze areas of concern related to jail health care and budgeting for the Jail Health Program. This position is the primary contact with the County Internal Auditor to supply information requested for any audit activities.(Id.)
The Jail Health Care Liaison was responsible for "first-line communication with the jail healthcare provider and [served as the] primary liaison to the County Contract Administrator." (Id.) Specifically, the Jail Health Care Liaison primarily was charged with coordinating "process, procedures and scheduling between the Sheriffs Office and vendor, including monitoring overall day-to-day activities of jail health care." (Id.) The Jail Health Care Liaison also was assigned the following duties:
. . . participation in RFP and contract development; participation in the activities related to the NCCHC accreditation site review; coordination with the background investigators of vendor staff when problems or delays arise; communicating expectations and changes to Jail deputies and staff who may be impacted; informing the Jail Commander and Sheriff of issues or concerns. This position will provide assistance to the County Contract Administrator for County audit responses.(Id.)
II. The County Audit
After the County experienced several years of unexplained fluctuations in correctional health costs, Davis, who was then the County Administrator, suggested an audit of the Jail health program in 2012. (Davis Dep. 16:13-17:12; Dep. of John Hutzler Dated Jan. 22, 2020 ("Hutzler Dep."), 8:10-24; Jones Decl., Ex. 106 at 13, 26.) The County Auditor, John Hutzler ("Hutzler"), agreed to conduct the audit to identify and document the reasons for the budget overruns in the Jail health program; to determine if the terms of the County's contract for correctional health care were appropriate and adequately monitored; and to determine if the County had taken appropriate measures to contain costs. (Jones Decl., Ex. 106 at 13, 26.)
After serving Washington County in various capacities for over thirty-six years, Davis retired in 2019. (Dep. of Robert Davis dated Jan. 31, 2020 ("Davis Dep."), 9:20-10:4. The "Davis Dep." is filed as Exhibit 1 to the Declaration of Heidi L. Mandt in Support of Reply Brief in Support of Motion for Summary Judgment Filed on Behalf of Pat Garrett, Robert Davis and Don Bohn ("Mandt Decl"), ECF No. 98-1; and Exhibit 117 to the Declaration of Tim Jones in Support of Plaintiffs Response to Washington County Defendants' Motion for Summary Judgment, ECF No. 83 ("Jones Decl."), ECF No. 83-17.)
The "Hutzler Dep." is filed as Exhibit 2 to the Mandt Declaration, ECF No. 98-2.
In May 2013, Hutzler issued an interim memorandum to Assistant County Administrator Bohn, as well as another individual not involved in these proceedings, outlining his preliminary findings that Corizon frequently failed to satisfy minimum staffing levels in the Jail as specified in the Jail health contract. (Id. at 19-21.) Specifically, Hutzler found deficiencies in medical staffing across all positions during Fiscal Year ("FY") 2008-09 through FY 2011-12. (Id. at 19.) Hutzler noted that in addition to "the County not receiving fair value for the resources expended," the staffing deficiencies "could jeopardize the health of the inmate population and increase the County's exposure to legal liability." (Id.) Hutzler included in the memorandum several recommendations to promote Corizon's immediate contractual compliance, and to ensure the County's effective monitoring of the contractual staffing requirements moving forward. (Id., at 19-20.)
Bohn left Washington County in September 2019 to serve as the County Manager for Clatsop County. He served Washington County in various capacities for twenty-eight years. (Dep. of Don Bohn dated Jan. 30, 2020 ("Bohn Dep."), 8:19-9:9. The "Bohn Dep." is filed as Exhibit 3 to the Mandt Declaration, ECF No. 98-3; and Exhibit 116 to the Jones Declaration, ECF No. 83-16.)
In November 2014, Hutzler issued a formal report detailing his overall findings. (Id. at 26-55.) Notably, Hutzler found that the Jail health contract had not been administered "in accordance with County guidelines and best practices"; that "[c]ertain terms of the ... contract did not adequately protect County interests"; that the County had failed to "forecast sufficient funds in the jail healthcare budget to cover jail healthcare costs" over a period of years; and that while the County had taken steps to control health care costs, it "should consider additional options." (Id. at 26.) Hutzler set forth in his report thirty recommendations to improve and more effectively administer the Jail health contract, to avoid or limit budget overruns, and to control the cost of correctional health services. (Id.)
Shortly thereafter, the County issued a formal response to the audit report that signaled agreement with all but one of Hutzler's recommendations. (Id. at 47-55.) As representatives of the County, the individual defendants each signed the response. (Id. at 47.)
Hutzler subsequently issued three follow-up reports documenting the County's efforts to implement the recommendations outlined in the audit report. (Jones Decl, Ex. 106 at 56-87.) According to Hutzler's final follow-up report issued on April 9, 2018, the County fully implemented fourteen of the recommended changes to the Jail healthcare program, and partially implemented another four. (Id.) The final report indicates, however, that the County did not implement nine of Hutzler's recommended changes, including some that concerned the monitoring and enforcement of minimum health staffing levels in the Jail. (Id.)
III. The County's Contract with NaphCare
The County awarded the Jail health contract to Defendant NaphCare in 2015. (Jones Decl., Ex. 106 at 13; Decl. of Christopher A. Gilmore in Supp. of Washington County Defs.' Mot. For Summ. J., ECF No. 18 ("Gilmore Decl"), Ex. 1 at 3.) For the purposes of this Motion, the parties agree that the contract charged NaphCare with the following responsibilities:
... to establish a medical audit committee, to assure quality healthcare [is] accessible to all inmates and detainees; to implement all policies and procedures necessary for operation of the Washington County jail as required by the National Commission on Correctional Healthcare [("NCCHC")] standards []; to provide a medical detoxification program for drug and/or alcohol addicted inmates and detainees; to provide intermittent monitoring of all detoxification cells located in the jail to determine the health status of individuals; monitoring including, at a minimum, documentation of vital signs and determination of levels of consciousness every two hours for severe cases; to recruit, interview, hire, train and supervise all healthcare staff; to implement a quality assurance program; and to maintain staffing levels [in the Jail] as set forth by the contract with Washington County and consistent with the standards set forth by the NCCHC.(Compl. ¶ 19; Gilmore Decl., Ex. 1.)
IV. Chronology of Events During Thomsen's Incarceration
A. Thomsen is Booked and Medically Screened
On June 25, 2017, the Hillsboro Police arrested Thomsen and booked him into the Jail. (Compl. ¶ 21.) At approximately 4:48 p.m., Registered Nurse ("RN") Kathy Dement ("Dement"), a NaphCare employee, conducted Thomsen's intake medical screening. (Jones Decl., Ex. 101 at 21.) Dement evaluated Thomsen, documented no abnormal findings with respect to his vital signs, and noted that he appeared to be clean, well-groomed, alert, cooperative, and oriented as to person, place, time, and situation. (Id. at 26-31; Decl. of Christopher A. Gilmore in Supp. of Washington County Defs.' Mot. for Summ. J., ECF No. 18 ("Gilmore Decl."), Ex. 2 at 2.) At that time, Thomsen did not report that he suffered from any chronic conditions, that he previously had sustained any significant injuries, or that he recently had developed any unexplained symptoms of concern. (Jones Decl., Ex. 101 at 28, 35-40.)
Notably, neither Dement nor the arresting officer indicated that Thomsen was under the influence of drugs or alcohol during the booking process or that he had reported using drugs or alcohol in the week preceding his arrest. (Id. at 37; Gilmore Deck, Ex. 3 at 2.) Further, there is no indication that Thomsen reported a previous history of alcohol abuse or the possibility of suffering alcohol withdrawal while in custody. (Id.) Based on the results of her evaluation, Dement assigned Thomsen to the general population, and granted him clearance to work while in custody. (Jones Decl, Ex. 101 at 24, 38.)
B. Plaintiff Contacts the Jail About Thomsen 's Health
That evening, Plaintiff, who was Thomsen's wife, contacted the Jail to express concern for his health. (Dep. of Officer David Adams dated Jan. 6, 2020 ("Adams Dep."), 35:3-8; Compl. ¶ 22.) Specifically, Plaintiff told Deputy David Adams ("Adams") that Thomsen had a brain injury and also that he likely would suffer alcohol withdrawal if he remained in custody. (Adams Dep. 35:9-13; Dep. of Tammy Thomsen dated Feb. 13, 2020 ("Thomsen Dep."), 185:17-22.)
The "Adams Dep." is filed as Exhibit 102 to the Jones Declaration (ECF No. 82-2).
The "Thomsen Dep." is filed as Exhibit 103 to the Jones Declaration (ECF No. 82-3).
Adams later approached Thomsen and relayed Plaintiffs concerns. (Jones Decl., Ex. 105 at 3.) Thomsen told Adams that "he was not going to be detoxing and [did not] need medical attention," but confirmed that he had suffered a brain injury "[two to three] years ago." (Jones Decl., Ex. 105 at 3.) Thomsen was unconcerned, however, and stated "that he would be fine." (Id.) Despite Thomsen's assurances, Adams reminded him to contact a deputy or a nurse if he needed medical attention. (Id.)
The next day, Plaintiff filled out an affidavit in the Washington County Circuit Court requesting Thomsen's release:
My husband has had sever [sic] brain damage witch [sic] causes seizures. He has been admitted to hospital. It causes him to forget things. I will be responsable [sic] for making sure he makes all his court appointments].
Dale is an alcoholic and if he is in jail over 24 hours he is going to need detox[.] Very important.
The detox causes seizures.(Jones Decl., Ex. 101 at 5.) Plaintiff then presented the affidavit to two deputies at the Jail, explaining that Thomsen was an alcoholic, that he had seizures, and that if asked, "he will deny all of it." (Dep. of Alice Petko dated Feb. 13, 2020 ("Petko Dep."), 29:6-9, 31:5-20, 33:4-8.) The deputies did not take possession of the affidavit, but promised to enter the information into the computer system and to "walk [the information] down to the jailer so that they would have access to [it.]" (Petko Dep. 32:1-7.) There is no indication in the record what, if anything, the deputies did with the information Plaintiff provided.
The "Petko Dep." is filed as Exhibit 104 to the Jones Declaration (ECF No. 82-4).
Thomsen, meanwhile, remained in custody from June 26 to June 27 without incident. Although the record indicates that Thomsen filled out a request for medical attention on June 26, the form lists "tissue in ear" as the only issue of concern. (Jones Decl., Ex. 101 at 42.) A staff response written at the bottom of the form indicates that Thomsen was scheduled to be seen by a nurse at a later date. (Id.)
C. Thomsen Experiences an Observable Change in Mental Status
In the early morning hours of June 28, 2017, Deputy Jeff Smith notified Licensed Practical Nurse ("LPN") Katie Noli ("Noli") that Thomsen was "not acting normal" and needed medical attention. (Jones Decl., Ex. 101 at 11.) Upon arrival in Thomsen's housing unit, Noli observed that Thomsen was ambulatory, but "hyper verbal and anxious," asking Deputy Smith to "tell Debbie I'm going to be late," and calling him "Jim." (Jones Decl., Ex. 107 at 3.) Noli noted that Thomsen's vital signs were elevated with a blood pressure of 165/93 and a pulse rate of 117. (Jones Decl., Ex. 101 at 11.) Noli thus scheduled Thomsen to be seen by a mental health professional to address his confusion, and sent a notification concerning Thomsen's abnormal vital signs to the RN for later review. (Id. at 12.) There is no indication that Noli or any member of the medical staff followed up to retake or reevaluate Thomsen's vital signs. (Jones Decl., Ex. 105 at 97.)
Katie Noli was known as Katie Black at all times material to this lawsuit.
At this point, Deputy Smith had moved Thomsen from a shared cell in general population to a single cell in POD 5, the special needs pod, after he "began to have hallucinations." (Jones Decl., Ex. 105 at 13.)
In the hours after Noli's examination, Thomsen became increasingly disruptive - talking to himself, hitting or shaking his cell door, and complaining of being kidnapped. (Jones Deck, Ex. 105 at 13.) At approximately 8:15 a.m., Thomsen was removed from his housing unit and escorted to the intake area of the Jail. (Id.) The escort was uneventful. (Id.)
Before being placed in a cell, Thomsen was seen by the intake nurse, who briefly spoke with him and evaluated some old cuts on his knee and elbow. (Jones Deck, Ex. 105 at 13.) At that time, Thomsen "said eveiything was fine." (Id.) Once in the intake cell, however, Thomsen "randomly pound[ed] and kick[ed] on the door throughout the rest of the morning." (Id.) D. Jail Staff Continuously Monitor Thomsen
The record indicates that Jail staff consistently made checks of Thomsen's cell while he was housed in the intake area of the Jail throughout the morning of June 28, 2017:
8:42 A deputy makes a check of all cells.
9:33 A deputy makes a check of all cells.
10:25 A deputy makes a check of all cells.
10:41 A deputy delivers Thomsen a sack lunch.
11:01 A deputy makes a check of Thomsen.
11:01:30 A deputy walks by Thomsen's cell and looks into the interior.
11:08 A deputy walks by Thomsen's cell and looks into the window.
11:10 A deputy walks by Thomsen's cell and looks into the window.
11:13 A deputy walks by Thomsen's cell and looks into the window.
11:15 A deputy walks by Thomsen's cell and looks into the window.
11:18 A deputy makes a deliberate check of all holding cells.
11:32 A deputy makes a deliberate check of all holding cells.
11:39 A female deputy, believed to be Deputy McKelvey, makes a check of all holding cells, starting on the side opposite Thomsen's cell.(Gilmore Deck, Ex. 4 at 15-21.) There is no indication, however, that any of the deputies who made checks of Thomsen consulted medical personnel or otherwise sought medical attention for Thomsen's continued confusion and agitation.
E. Thomsen is Found Unconscious in his Cell and Cannot Be Revived
At approximately 11:40 am, Deputy McKelvey found Thomsen "lying on his stomach up against the door" of his cell, and immediately sought help from other deputies at the intake desk located several feet away. (Jones Deck, Ex. 105 at 12; Gilmore Deck, Ex. 4 at 15-16.) The record shows that approximately ten minutes elapsed before paramedics arrived, and that numerous individuals provided first aid, administered CPR, or otherwise assisted in the efforts to revive Thomsen during that time:
11:40:33 Deputy McKelvey and two additional deputies go to Thomsen's cell.
11:40:40 Deputy McKelvey and two other deputies open the door of Thomsen's cell.
11:40:45 A fourth deputy arrives to assist.
11:41 Two additional deputies are seen running to Thomsen's cell to assist.
11:41:07 A deputy is seen running from the cell area to the rear of the booking/intake desk (for AED).
11:41:08 Male nurse arrives with medical equipment.
11:41:19 Deputy returns with AED.
11:41:25 Two more deputies arrive to assist.
11:41:29 A female nurse arrives at the scene with medical equipment.
11:41:40 An additional female nurse runs to the scene.
11:42 Additional deputies arrive at the scene but are redirected away to secure unsecured inmates in the holding area.
11:47 A deputy can be seen making visual checks of the interiors of other holding cells.
11:47:30 Hillsboro Fire Department arrive at the holding cell area.
11:48 Deputy checks all other holding cells.
11:50 Metro West Ambulance personnel arrive on scene with a stretcher.(Gilmore Decl., Ex. 4 at 16-21; see also Jones Decl., Ex. 105 at 5-12; Ex. 107 at 3.) Despite these efforts, Thomsen was pronounced dead at Tuality Hospital a short time later. (Id. at 4.) Dr. Clifford C. Nelson, who conducted Thomsen's autopsy, concluded that Thomsen's cause of death was Atherosclerotic Coronary Artery Disease. (Gilmore Decl, Ex. 5 at 1.)
On June 21, 2019, Plaintiff filed this lawsuit, alleging Thomsen's death resulted from severe alcohol withdrawal that went unrecognized and untreated by Jail staff and medical personnel. With respect to the individual defendants, Plaintiff alleged that they violated Thomsen's right to adequate medical care under the Fourteenth Amendment by "failing to fully enact the recommendations of the Washington County Auditor, including but not limited to those pertaining to quality of medical care, staffing levels, and cost containment." (Compl. ¶33.) Plaintiff further alleged that the individual defendants, in their supervisory capacities, failed to adequately train and supervise NaphCare staff, creating a substantial risk of causing harm to individuals in custody in the Jail. (Compl. ¶ 46-48.) This Motion soon followed.
Legal Standards
I. Summary Judgment
Summary judgment is appropriate when "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). The moving party satisfies its burden by offering the district court the portions of the record it believes demonstrates the absence of a genuine issue of material fact. See Celolex Corp. v. Catrell, 477 U.S. 317, 323 (1986) (explaining that "a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact"). The court does not assess the credibility of the witnesses, weigh the evidence, or determine the truth of matters in dispute. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) (noting that "at the summary judgment stage[, ] the [court's] function is not ... to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial"). The court must "examine all the evidence in the light most favorable to the non-moving party [, ]" and must draw "all reasonable inferences supported by the evidence in favor of the non-moving party." Porter v. Dep't of Corr., 419 F.3d 885, 891 (9th Cir. 2005) (quotations and citations omitted). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Elec. Lndits. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation and internal quotation marks omitted). "[W]here evidence is genuinely disputed on a particular issue - such as by conflicting testimony - that issue is inappropriate for resolution on summary judgment." Zetwick v. Cty. Of Yolo, 850 F.3d 436, 441 (9th Cir. 2017) (internal quotation and citation omitted).
If the moving party demonstrates no issue of material fact exists, the nonmoving party must go beyond the pleadings and "designate specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. at 324 (quotations omitted). The nonmoving party cannot defeat a summary judgment motion by relying on the allegations set forth in the complaint, unsupported conjecture, or conclusory statements. See Hernandez v. Spacelabs Med, Inc., 343 F.3d 1107, 1112 (9th Cir. 2003) (explaining that once the moving party "has carried its burden of production, [the nonmoving party] must produce evidence in response[, ]" and "cannot defeat summary judgment with allegations in the complaint, or with unsupported conjecture or conclusory statements"). "Mere allegations or denials" are insufficient to meet the nonmoving party's burden to show a genuine issue of material fact to defeat a motion for summary judgment. Gasaway v. Northwestern Mut. Life Ins. Co., 26 F.3d 957, 960 (9th Cir. 1994). Importantly, if the nonmoving party fails to provide evidence to support an essential element of his case on which he has the burden of proof, the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323.
II. Section 1983
"Section 1983 does not create any substantive rights, but is instead a vehicle by which plaintiffs can bring federal constitutional and statutory challenges to actions by state and local officials." Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). To state a cognizable claim under Section 1983, "a plaintiff must both (1) allege the deprivation of a right secured by the federal Constitution or statutory law, and (2) allege that the deprivation was committed by a person acting under color of state law." Id. (citing West v. Atkins, 487 U.S. 42, 48 (1988)).
A cognizable claim under Section 1983 also requires a plaintiff to show causation, that is, that a particular defendant engaged in "an affirmative act, participated] in another's affirmative act, or omit[ted] to perform an act which he is legally required to do that causes the deprivation of which complaint is made." Preschooler II v. Clark Cly. Sch. Bel. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)); Leer v. Murphy, 844 F.2d 628, 632-33 (9th Cir. 1988). To establish causation, the plaintiff must include in her pleadings "specific facts as to each individual defendant's" causal role in the alleged constitutional deprivation. Leer, 844 F.2d at 634. Accordingly, in determining causation, the court "must take a very individualized approach which accounts for the duties, discretion, and means of each defendant." Id. at 633-34.
Discussion
Defendants Davis, Bohn, and Garrett move for summary judgment, each arguing that there is no basis for his individual liability under Section 1983 and that he is entitled to qualified immunity. Plaintiff responds that the individual defendants are not shielded by qualified immunity because each had "an affirmative duty to monitor the performance of NaphCare and enforce the [Jail health] contract," and their failure to do so resulted in Thomsen's death. (Pl's Resp. to Mot. for Summ. J. - Qualified Immunity, ECF No. 82 ("Pl's Resp."), at 34.) The court first considers whether there is a triable issue of fact with respect to Plaintiffs claims against the individual defendants before turning to the issue of qualified immunity.
I. Alleged Violations of the Fourteenth Amendment
"Individuals in state custody have a constitutional right to adequate medical treatment." Sandoval v. Cly. of San Diego, 985 F.3d 657, 667 (9th Cir. 2021). A pretrial detainee may bring a claim for a violation of his right to adequate medical care under the Fourteenth Amendment. See Gordon v. Cty. of Orange, 888 F, 3d 1118, 1124 (9th Cir. 2018) (noting that "medical care claims brought by pretrial detainees . . . 'arise under the Fourteenth Amendment's Due Process Clause, rather than under the Eighth Amendment's Cruel and Unusual Punishment Clause'") (quoting Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1069-70 (9th Cir. 2016)).
To establish an inadequate medical care claim against an individual defendant under the Fourteenth Amendment, a plaintiff must establish that: "(i) the defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; (ii) those conditions put the plaintiff at substantial risk of suffering serious harm; (iii) the defendant did not take reasonable measures to abate that risk, even though a reasonable official in the circumstances would have appreciated the high degree of risk involved - making the consequences of the defendant's conduct obvious; and (iv) by not taking such measures, the defendant caused the plaintiffs injuries." Gordon, 888 F.3d at 1125. "With respect to the third element, the defendant's conduct must be objectively unreasonable, a test that will necessarily 'turn[] on the facts and circumstances of each particular case.'" Id. (quoting Castro, 833 F.3d at 1071). A state official's "mere lack of due care" is not enough. Id. Rather, to establish that the defendant's conduct was objectively unreasonable, the plaintiff must demonstrate '"more than negligence but less than subjective intent - something akin to reckless disregard.'" Id.
The individual defendants argue that Plaintiff cannot establish that they showed "reckless disregard" for Thomsen's serious medical need because they had no knowledge that Thomsen was in custody, and therefore had no knowledge of his medical condition. (Mot. at 17.) Plaintiff argues that liability under Section 1983 does not require personal involvement, and that evidence shows "these defendants failed to implement and enforce contract provisions and recommended policies and procedures for quality control, staffing, and inmate care." (Pl's Resp. at 30-31.)
The court observes that, in general, an individual defendant who had no direct involvement in a constitutional deprivation may be found liable where he set into "motion a series of acts by others which the [defendant] knows or reasonably should know would cause others to inflict the constitutional injury." Gini v. Law Vegas Metro. Police Dep't, 40 F.3d 1041, 1044 (9th Cir. 1994) (quoting Merritt v. Mackey, 827 F.2d 1368, 1371 (9th Cir. 1987)). Nonetheless, Plaintiff still must demonstrate that each particular defendant acted or failed to act with a "sufficiently culpable state of mind" notwithstanding "his knowledge of a substantial risk of serious harm." Hearns v. Terlnine, 413 F.3cl 1036, 1042 (9th Cir. 2005). The court considers Plaintiffs claims against the individual defendants in turn.
A. Failure to Fully Adopt Hutzler 's Recommendations
Plaintiff's First Claim for Relief alleges that the individual defendants failed to fully implement Hutzler's recommendations, resulting in the denial of timely and appropriate medical care that would have prevented Thomsen's death. (Compl. ¶¶ 33-34.) The individual defendants argue that their alleged failure to adopt Hutzler's recommendations "is not a basis for individual liability under the Fourteenth Amendment and otherwise lacks causation because there is no evidence to show what recommendation would have changed the outcome in this case." (Mot. at 17.)
As the individual defendants point out, Plaintiffs claim suffers from two fatal flaws. First, Plaintiff provides no authority, and the court is aware of none, establishing generally that failing to fully implement recommendations made by a county auditor with respect to health care in the county jail is constitutionally violative conduct. Indeed, there are any number of legitimate reasons a county ultimately may choose to decline or only partially implement recommendations made by its auditor, and such decisions, without more, do not violate the Fourteenth Amendment rights of individuals in custody.
Second, Plaintiff generally alleges that Thomsen was denied adequate medical care due to the individual defendants' failure to fully enact Hutzler's recommendations with respect to "quality of medical care, staffing levels, and cost containment," but Plaintiff stops short of explaining which specific recommendations, had they been fully implemented, would have prevented Thomsen's death. More importantly, Plaintiff fails to explain how fully implementing Hutzler's recommendations - some of which appear only to be tangentially related, if at all, to the quality of medical services delivered in the Jail - would have ensured Thomsen's survival. Plaintiff submits no evidence to indicate, for example, how Thomsen's death would have been prevented if the individual defendants had fully implemented Hutzler's recommendations to "negotiate appropriate reductions in the contract fee in connection with any reduction in the scope of work" and to "engage a third-party medical billings auditor, on a contingency fee basis, to audit hospital billings for inmate care," (Jones Decl., Ex. 106 at 82, 85.)
To be sure, several of the unimplemented recommendations address issues that could be relevant in this case - specifically, those recommendations concerning quality assurance practices and the monitoring of the Jail health contract. Plaintiff, however, simply concludes that Thomsen's death resulted from the failure to fully implement those recommendations without providing specific argument or evidence of a causal link connecting Thomsen's death to the decision to forgo adopting Hutzler's recommendations in full. For example, Plaintiff provides evidence that there were medical staffing shortages in the Jail at various points in the years and months preceding Thomsen's death, but fails to show or even argue that those shortages would not have occurred but for the failure to implement Hutzler's recommendations, or that Thomsen's death would have been avoided but for inadequate medical staffing while he actually was in custody. Put simply, Plaintiff fails to provide evidence from which a reasonable jury could conclude that the individual defendants, "by not [implementing Hutzler's recommendations in full], . . . caused [Thomsen's] injuries." Gordon, 888 F.3d at 1125
Even if Plaintiff could establish the requisite causal connection between the failure to fully implement Hutzler's recommendations and Thomsen's death, the record discloses that Davis had a nominal role, if any at all, in decisions stemming from the audit. Although Davis suggested the Jail health program as an audit subject, and later was a signatory to the County's response to the audit report, Davis testified in his deposition that he "was not involved in the details of jail health or Mr. Hutzler's audits[, ]"did not have any ongoing conversations with Hutzler about the audit or his findings, and received only periodic, cursory updates from Bohn as to "how [the audit was] going." (Davis Dep. 23:1-5, 49:4-5; see also Bohn Dep. 63:2-10 (testifying that he would brief Davis "just in terms of the general things that I had going on[, ]" and that his involvement in the health contract request for proposals process "was one thing of a thousand things that I was dealing with at that time[, ] [s]o we would brief [Davis] quickly").) Moreover, Davis testified that he did not "personally provide any input into the [County's] responses to [Hutzler's] recommendations [, ]" and "left [the substance of the responses] up to other people" working on the project. (Davis Dep. 24:20-25, 36:12-22.) Plaintiff provides no evidence to the contrary. Because there is no evidence that Davis had an active role in the audit, much less that he "made an intentional decision with respect to the conditions under which the plaintiff was confined," no reasonable jury could conclude that Davis acted with reckless disregard by failing to fully implement Hutzler's recommendations. Gordon, 888 F.3d at 1125.
In sum, the causal link between the individual defendants' failure to fully implement the recommendations of the County Auditor and Thomsen's death is too attenuated and speculative to form a basis for liability under Section 1983 or to establish an inadequate medical care claim against the individual defendants under the Fourteenth Amendment. In addition, Plaintiff has failed to rebut evidence that Davis was not involved in the audit or in the decision-making that flowed from the audit report. Accordingly, the record does not support a finding that the individual defendants violated Thomsen's constitutional rights by failing to fully implement the recommendations of the County Auditor.
B. Failure to Supervise and/or Train
Plaintiffs Third Claim for Relief alleges that the individual defendants, in their supervisory capacities, were aware of and ratified policies and practices that created a substantial risk of causing harm to detainees in the Jail, and failed to adequately supervise and train NaphCare employees in a number of areas, including the proper recognition and monitoring of severe alcohol withdrawal, proper procedures for medical emergencies, and the importance of documenting medical findings, especially vital signs. (Compl. ¶ 46-49.) Plaintiff alleges that these failures caused Thomsen "severe physical and emotional distress, [which exacerbated] his medical condition . . .[and] result[ed] in his death." (Id. ¶ 49.)
Supervisorial liability may be established under Section 1983 "where the supervisor 'was personally involved in the constitutional deprivation or a sufficient causal connection exists between the supervisor's unlawful conduct and the constitutional violation.'" Edgerly v. City and County of San Francisco, 599 F.3d 946, 961 (9th Cir. 2010) (quoting Lolli v. County, of Orange, 351 F.3d 410, 418 (9th Cir. 2003)); see also Ashcroft v. Iqbal, 556 U.S. 662, 676-677 (2009) (noting that vicarious liability is inapplicable in a suit arising under Section 1983, and that "each Government official, his or her title notwithstanding, is only liable for his or her own misconduct"). If not personally involved in the deprivation at issue, "[t]he requisite causal connection can be established ... by setting in motion a series of acts by others, or by knowingly refus[ing] 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[.]" Starr v. Baca, 652 F.3d 1202, 1207-08 (9th Cir. 2011) (quotations and citations omitted). A supervisor may also be liable '"for his own culpable action or inaction in the training, supervision or control of his subordinates; for his acquiescence in the constitutional deprivation; or for conduct that showed a reckless or callous indifference to the rights of others.'" Id. at 1208 (quoting Wat kins v. City of Oakland, 145 F.3d 1087, 1093 (9th Cir. 1998)).
Here, Plaintiff does not dispute that the individual defendants had no knowledge of or involvement in Thomsen's confinement or in Thomsen's medical care while in custody. Rather, Plaintiff alleges that the individual defendants each "had an affirmative duty to monitor the performance of NaphCare and enforce the [Jail health] contract requirements," and that their failure to do so resulted in Thomsen's death. (Pl's Resp. at 34.) Specifically, Plaintiff argues that "[a]ll three [of the individual defendants] had been warned by the Washington County Auditor of contract violations and performance deficiencies" by the County's previous health contractor, Corizon; that those violations and deficiencies continued unabated through the County's contract with NaphCare; and that the individual defendants nevertheless "did not know the requirements of the [Jail health contract, ] much less whether [those requirements] were being fulfilled." (Pl's Resp. at 34.)
The court expresses no opinion as to the sufficiency of Plaintiffs evidence with respect to NaphCare, nor does the court express an opinion on the appropriateness of NaphCare's conduct or the conduct of any NaphCare employee in the resolution of this Motion.
Plaintiff points to evidence that indeed demonstrates the individual defendants' limited knowledge as to the substance and enforcement of certain requirements in the Jail health contract - specifically, requirements concerning staff training, minimum staffing levels, outside referrals, and the implementation of policies and procedures specific to the Jail. (See Pl's Resp. at 17-26.) But Plaintiffs assertion that the individual defendants had an affirmative duty to monitor and enforce the Jail health contract appears based on the individual defendants' executive positions within the County government, and not on direct evidence of the specific duties with which they were assigned. Because questions of causation require an "individualized approach" that takes into account "the duties, discretion, and means" of each defendant, Leer, 844 F.2d at 633-34, the court must consider the specific responsibilities of the individual defendants with respect to the monitoring of NaphCare and the enforcement of the Jail health contract.
I. Davis
The Washington County Charter provides for a Council-Manager form of government, vesting a five-member Board of Commissioners with legislative responsibility and designating administrative authority to a Board-appointed professional county administrator. (https://www.co.washington.or.us/CAO/.) In addition to providing direct administrative and clerical support to the Board of Commissioners, the County Administrator and his or her staff are charged with overseeing County programs and projects; selecting and evaluating the performance of appointed department heads; performing analyses leading to the improvement of County services; and preparing and administering the annual budget. (Id.)
At all times relevant to this Motion, Davis served as the County Administrator of Washington County, and described his role as follows:
... [A] big part of it is relationships with the Board of Commissioners. Trying to understand and work with them to implement their goals, their objectives, [and] their initiatives. And a big part of my role was building the organizational capacity, both fiscally and staff-wise for those appointments that I had in the administrative office and the department heads. My goal was to appoint the best people that we could find, work with them, build a team, and have a team approach to managing the organization.(Davis Dep. 9:16-10:4; 10:5-17.) During his tenure as County Administrator, Davis oversaw five or six functional areas, each of which contained multiple departments that encompassed numerous divisions, units, and programs; approximately 2, 000 employees; and a budget of $1.4 billion. (Davis Dep. 10:21-11:11.)
With respect to Jail health care, Davis testified in his deposition that his role "was pretty much like [his] role with other programmatic services programs at that level, which was, [he] was aware that [the County was] providing that[, ] [b]ut [he] was not involved in the details." (Davis Dep. 11:25-12:7.) Davis further testified that he was not involved in the decision to award the Jail health contract to Naphcare, that he had no contact with NaphCare or its representatives concerning the contract, and that he had no one reporting to him about NaphCare's performance or contractual compliance. (Davis Dep. 16:3-12.) Although Davis did periodically receive "[t]ypical... updates [and] [b]riefings" from Bohn as to the status of projects concerning Jail health care, namely the audit, the record demonstrates that Davis had no formal role or involvement in the oversight, administration, or delivery of health services in the Jail. (Davis Dep. 12:23-13:3; see also Dep. of Judy Lynn dated November 17, 2019 ("Lynn Dep."), 50:3-6.)
The "Lynn Dep" is filed as Exhibit 4 to the Mandt Declaration (ECF No. 98-4).
Plaintiff argues that delegating his duties to others cannot relieve Davis of his responsibility to monitor NaphCare's performance and to enforce the Jail health contract, and that "[i]t appears he did not even monitor the performance of those to whom he delegated his duties." (PL's Resp. at 34.) This argument is unavailing. Although the County cannot escape its constitutional obligation to provide adequate medical care to individuals in its custody by delegating its duties to a contracted medical provider, West v. Atkins, 487 U.S. 42, 56 (1988), Plaintiff provides no authority establishing that Davis individually is held to a similar constitutional standard. Indeed, Davis's potential liability turns on his affirmative "duties, discretion, and means" as the County Administrator, Leer, 844 F.2d at 633-34, and not on a presumption that he is ultimately responsible for every action taken by the County by virtue of his executive position. Cf. Cruz v. Lee, Case No. EDCV 15-1428-JGB (JEM), 2017 WL 1682563, at * (CD. Cal. Mar. 29, 2017) (dismissing claims that the defendant failed to provide training and supervision to ensure individuals in custody received adequate medical care because the plaintiffs allegations were "purely conclusory and based on [the defendant's] role as the Chief Medical Officer at [the prison]," and otherwise failed to demonstrate that the defendant was involved in or caused the constitutional deprivations alleged). Furthermore, Plaintiff provides no evidence that Davis was responsible for the direct supervision of anyone charged with the day-to-day delivery, monitoring, or management of health services in the Jail, or that he was involved in any decisions stemming from the audit.
In sum, the court finds that there is no evidence in the record from which a reasonable juror could conclude that Davis was involved in or caused the constitutional deprivation alleged here. More specifically, Plaintiffs assertion that Davis had an "affirmative duty" to monitor NaphCare's performance and to enforce the Jail health contract is conclusory and unsupported by evidence in the record. Plaintiff thus fails to establish supervisory liability with respect to Davis.
2. Bohn
At all times relevant to this Motion, Bohn served as the Assistant County Administrator of Washington County, describing his role as similar to that of a chief operating officer "in charge of the day-to-day operations of the County." (Bohn Dep. 8:19-9:6, 10:1-8.) This included management of all "internal departments, [the] managed accountings budget, all capital projects, [and] collective bargaining." (Id.) As Assistant County Administrator, Bohn was charged with overseeing eight departments encompassing approximately 350 employees. (Bohn Dep. 10:1-16.)
In his deposition, Bohn testified that he did not have a role nor any responsibilities with respect to the administration of the Jail health contract. (Bohn Dep. 10:20-11:1, 11:11-21.) Bohn did become involved, however, with the Jail health program after the audit revealed that the County needed to make fundamental, structural changes to "how the service was positioned in the organization and how [the County] attached other expertise and resources to the service." Bohn thus became the project's "corporate sponsor," explaining his role this way:
. . . [W]e needed to make some really corporate changes to how the jail health care function was being organized, resourced, supported, [and] managed. And in order to do that, when there's multiple departments involved, it requires someone at my level of the organization to sponsor it because we needed to make changes that involved the sheriffs office, Department of Health and Human Services, support services, [and] County counsel. And so in order to make that happen at all those different levels, I got involved.(Bohn Dep. 15:21-16:3.)
Bohn further explained that prior to the audit, the Jail health contract was administered by a management analyst within the Department of Health and Human Services, who reported to a division manager. (Bohn Dep. 49:2-4.) Bohn described the difficulty this arrangement presented:
. . . there [were] some contract administration issues that hadn't been addressed at the department level, and the department was not finding their way forward. And I think, not surprisingly, the jail - providing jail health care in a custodial environment and having the contract administered by somebody who doesn't go into the jail, doesn't have access to the jail, and - and is administering this as one of many contracts that they're administering didn't work.
And so we acknowledged that, and we said that we needed to do it differently.(Bohn Dep. 10:24-11:1; 11:22-12:8.) Bohn thus recognized that if the County "wanted to improve and make sure that there was a sustainable model going forward that met [its] legal and moral obligations," the Jail health contract could not "just sit in a department[] [b]ecause [there were] too many other people ... involved in [the] service delivery." (Bohn Dep. 50:5-13.) Accordingly, Bohn reassigned the management of the Jail health contract to Judy Lynn ("Lynn") - a detail- oriented contract administrator who could "hit the ground running" because she already knew the County's finance and contracting systems - and worked to gather a multidisciplinary leadership team to address the audit findings and to implement Hutzler's recommendations. (Bohn Dep. 27:12-15, 27:24-28:20, 48:9-23.)
After assembling the leadership team, Bohn remained "[t]angentially involved as the executive sponsor[, ]" but was not involved in the day-to-day administration of the Jail health program. (Bohn Dep. 26:7-10, 117:16-17.) Indeed, Bohn testified that that he was not Lynn's supervisor; that his role "was as a corporate sponsor, not a day-to-day person;" and that he attended meetings about the Jail health program only when asked, which was very rarely, "because they were managing the contract as a team." (Bohn Dep. 27:12-23, 117:7-18; see also Lynn Dep. 21:13-19 (explaining that Bohn "assigned the work to [Lynn] for special projects[, ] [b]ut [she] actually reported to the chief financial officer").) The oversight of the Jail health contract eventually was transferred to the Sheriffs Office, at which time Bohn "was not involved at all," because Garrett took over the role of coiporate sponsor. (Bohn Dep. 113:2-7.)
Although Plaintiff argues that Bohn had an affirmative duty to monitor NaphCare's performance and to enforce the Jail health contract, the record shows that Bonn's duties did not include administering the Jail health contract, supervising the individual tasked with administering the Jail health contract, or otherwise providing any day-to-day supervision or input with respect to the delivery of health services in the Jail. Rather, Bohn became involved with the Jail health program for the express purpose of coordinating multiple departments and stakeholders to facilitate the implementation of recommended changes to the service delivery model, and his involvement tapered off once he had assembled a qualified, multidisciplinary team to handle all issues arising from health services in the Jail. Because evidence in the record indicates that Bohn was not responsible for the monitoring or administration of the Jail health contract, nor responsible for supervising those engaged in such work, Plaintiffs contrary assertion is unpersuasive. Accordingly, the court concludes that no reasonable juror could find that Bohn was involved in or caused the constitutional deprivation alleged here.
C. Sheriff Garrett and the Sheriffs Office
Garrett currently serves as the Sheriff of Washington County, and held that position at all times relevant to this Motion. (Dep. of Sheriff Pat Garrett dated Jan. 31, 2020 ("Garrett Dep."), 7:14-16.) As the "chief executive officer and conservator of the peace of the county," Or. Rev. Stat. § 206.010, Garrett is "vested with the administration and control of the Sheriffs Office through the state constitution, Oregon law, and the County Charter." (Mandt Decl., Ex. 6 at 1.) Garrett's administrative powers include "abolish[ing] positions or reorganizing] the [Sheriffs] Office or a division within the [Sheriffs] Office; [] determining] the duties and qualifications of various job classifications; and [] delegating] his authority to subordinate executive officers." (Id.); see also Or. Rev. Stat. § 206.210(1) (instructing that "[t]he various duties of the [sheriffs] office may be assigned to appropriate departments and divisions to be performed by persons experienced and qualified for such respective kinds of work").
The "Garrett Dep." is filed as Exhibit 113 to the Jones Declaration (ECF No. 83-13), and Exhibit 5 to the Mandt Declaration (ECF No. 98-5).
The Sheriffs Office has adopted a chain of command and formal organizational structure, and is organized into six major functional areas of responsibility: Executive Administration, which serves the whole agency and reports to the Undersheriff or Sheriff; and the Services, Jail, Investigations, Patrol East, and Patrol West Divisions. (Mandt Deck, Ex. 7 at 2.) The five divisions each are overseen by a commander, and are further divided into branches, sections, or units depending on functional, geographic, or other organizational characteristics. (Id.) As relevant here, the functions of the Jail Division include, among other things, inmate services and Jail administration and operations. (Id., at 3.) The Commander of the Jail Division reports to the Chief Deputy of Services and Jail Operations, who in turn reports to the Undersheriff. (Mandt Decl., Ex. 7 at 3; Ex. 8.)
Garrett acknowledged in his deposition that he bears ultimate responsibility for the Jail as the Washington County Sheriff, but explained that his affirmative duties are limited to "[e]nsur[ing] that the team that oversees, runs the jail... is the right team; that they are effective at what they do; that their leadership produces the right kind of services for safety and security of our adults in custody, and who work collaboratively with our part[n]ers and stakeholders both inside and outside the facility." (Garrett Dep. 7:17-8:1, 43:25-44:4; see also Lynn Dep. 50:22-25 (explaining that Garrett is "responsible for all things that go on in the sheriffs department, which includes the jail").) Similarly, with respect to health services in the Jail, Garrett testified that his specific role is limited to "[m]ak[ing] sure that we at the sheriffs office have the right people in place to make the right decisions regarding the delivery of health care services." (Garrett Dep. 8:2-10.)
The record indicates that at the time of Thomsen's death, the administration of the Jail health contract was assigned outside of the Sheriffs Department. (Garrett Dep. 9:14-10:1; Dep. of Christy McCamond dated January 21, 2020 ("McCammond Dep."), 10:5-10.) Specifically, Lynn, a contract administrator with the County's Department of Finance, was responsible for overseeing and managing the Jail health contract until August 2018, when those functions were reassigned to the Sheriffs Office. (Garrett Dep. 9:3-10:1; McCammond Dep. 10:5-10.) Lynn testified during her deposition that while in that role, she reported to the chief financial officer, Mary Gruss, and did not, in any way, report to Garrett. (Lynn Dep. 21:13-25.)
The administration of the Jail health contract was not reassigned to the Sheriffs Office until approximately one year after Thomsen's death.
The "McCammond Dep." is filed as Exhibit 109 to the Jones Declaration (ECF No. 83-9), and Exhibit 9 to the Mandt Declaration (ECF No.98-9).
Garrett similarly denied having any affirmative responsibilities with respect to monitoring NaphCare's contract compliance at the time of Thomsen's death:
I, as the sheriff, have a responsibility to ensure that we have the right people in the right places with the right knowledge, skills, and abilities to do a job.
And that is the case with our contract administrator whose function is to provide overwatch to our contract with . . . health care in the jail. And so that's really the function of that position. She has help when she needs it, but that is her... function, not my specific duty.(Garrett Dep. 73:20-74:7.) Garrett also denied having any role in the enforcement of penalties for NaphCare's nonperformance, explaining that Lynn and the group assembled to handle Jail health issues (i.e., the MAC, CQI Committee, and Jail Health Liaison) would work together "to make recommendations about penalties." (Garrett Dep, 74:22-75:9.) Garrett did, however, confirm that Lynn reported to him concerning NaphCare's contract compliance at least once, but he could not recall the context or substance of that report, or whether Lynn had ever provided him with any data concerning Corizon or NaphCare's fulfillment of the minimum staffing levels set forth in the Jail health contract. (Garrett Dep. 74:8-21.)
As the individual defendants point out, evidence in the record demonstrates that individuals other than Garrett affirmatively were charged with administering the Jail health contract and monitoring NaphCare's performance prior to Thomsen's death. For example, Lynn, the County Contract Administrator, was responsible for all tasks related to the management of the Jail health contract, including "monitoring contract requirements through the contract monitoring plan; enforcement of standards; understanding the NCCHC standards as they apply to the County Jail facilities;... [and] develop[ing], reviewing] and analyzing] areas of concern related to jail health care[.]" (Mandt Decl., Ex. 10 at 2.) Garrett did not serve as Lynn's supervisor, nor did Lynn regularly report to Garrett. Similarly, the Jail Health Liaison was responsible for monitoring "overall day-to-day activities of jail health care," and County Counsel was responsible for providing advice and counsel to the Jail Health Liaison and the County Contract Administrator; "assum[ing] lead negotiator role in contract amendment process; and serv[ing] as the primary liaison to the jail healthcare vendor legal representative." (Id., at 2-3.) Finally, the MAC and CQI Committee, neither of which involved Garrett, were responsible for a panoply of issues arising out of health services in the Jail, including "healthcare provision; operational process and procedures; staffing patterns; high risk inmates; monthly reports and statistics; staff training updates; . . . risk management reports; utilization summaries; quality monitoring and results . . . [and] corrective action plans and results." (Id. at 1.)
The court acknowledges that Garrett is vested with overall authority in matters pertaining to the Jail, but finds that the record demonstrates that he had no direct role in the administration, negotiation, or enforcement of the Jail health contract; in the daily oversight of the Jail health vendor; or in the overall quality control and monitoring of health care delivery in the Jail. Moreover, no evidence suggests that any of the individuals responsible for managing the Jail health program regularly reported to Garrett or otherwise expressed concerns as to NaphCare's contract compliance or performance, and that Garrett consistently failed to act or ignored those concerns. Although Plaintiff insists that the audit put Garrett on notice of numerous deficiencies related to the Jail health program, the audit specifically outlined performance and compliance deficiencies with respect to the previous health care provider, Corizon, and Garrett testified that he did "not have [similar] concerns with [NaphCare.]" (Garrett Dep. 90:21-91:2.) Plaintiff thus has failed to demonstrate that Garrett had an affirmative duty to monitor NaphCare's performance and enforce the Jail health contract, that he was deliberately indifferent in failing to do so, or that he otherwise acquiesced to the constitutional violation alleged. Accordingly, the record does not support a finding of supervisorial liability with respect to Garrett.
II. Qualified Immunity
The doctrine of qualified immunity "protects government officials 'from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Such protection extends regardless of whether the government official makes an error as a result of "'a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.'" Id. (quoting Groh v. Ramirez, 540 U.S. 551, 567 (2004) (KENNEDY, J., dissenting)). Qualified immunity thus "gives government officials breathing room to make reasonable but mistaken judgments" and "protects all but the plainly incompetent or those who knowingly violate the law." Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (quoting Mailley v. Briggs, 475 U.S. 335, 341 (1986)); see also Romero v. Kitsap Cty., 931 F.2d 624, 627 (9th Cir. 1991) (noting that "regardless of whether the constitutional violation occurred, the [official] should prevail if the right asserted by the plaintiff was not 'clearly established' or the [official] could have reasonably believed that his particular conduct was lawful").
On summary judgment, courts resolve questions of qualified immunity through a two-pronged inquiry. Tolan v. Cotton, 572 U.S. 650, 655 (2014). The first prong "asks whether the facts, '[t]aken in light most favorable to the party asserting the injury, . . . show the officer's conduct violated a [federal] right[.]'" Id. (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)). The second prong "asks whether the right in question was 'clearly established' at the time of the violation." Tokm, 572 U.S. at 656 (quoting Hope v. Pelzer, 536 U.S. 730, 739 (2002)). "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier, 533 U.S. at 202 (citation omitted); see also Tarabochia v. Adkins, 766 F.3d 1115, 1125 (9th cir. 2014) (noting that the "clearly established" prong requires the court to "consider whether a reasonable officer would have had fair notice that the action was unlawful"). The court is not required to address the two prongs in any particular order. See Pearson, 555 U.S. at 236 (holding that "the judges of the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand").
The individual defendants argue that they each are entitled to qualified immunity because they were neither involved in nor caused the constitutional deprivation alleged, and that even if they were, the constitutional right at issue was not clearly established. In this case, the first prong is dispositive. As explained above, Davis, Bohn, and Garrett were not directly involved in or responsible for the day-to-day management of health services in the Jail or the monitoring and administration of the Jail health contract. (Davis Dep. 11:25-12:7; Bohn Dep. 10:20-11:1, 11:18-21; Garrett Dep. 7:17-8:10.) Moreover, there is no causal connection between the individual defendants' alleged failures to implement the recommendations of the Washington County Auditor and Thomsen's death. Accordingly, no constitutional violation attributable to the individual defendants occurred here, and they are entitled to qualified immunity.
Even if the first prong was satisfied in this case, the constitutional right at issue must have been "clearly established" so that the individual defendants had fair warning that their specific conduct violated Thomsen's constitutional rights. See Saucier, 533 U.S. at 202 (explaining that if "[t]he law did not put the officer on notice that his conduct would be clearly unlawful, summary judgment... is appropriate"). Such an inquiiy "must be undertaken in light of the specific context of the case, not as a broad general proposition." Id. at 201. "The Plaintiff bears the burden to show that the contours of the right were clearly established." Clairmont v. Sound Mental Health, 632F.3d 1091, 1109 (9th Cir. 2011).
Plaintiff argues that an individual in custody has a clearly established right to prompt and adequate medical care without delay or interference from prison officials, but such a formulation is too broad. With respect to these particular defendants in the specific context of this case, the issue is whether the individual defendants each were on notice that he was violating Thomsen's constitutional rights by failing to fully implement all of the recommendations made by the county auditor or by failing to monitor and enforce the requirements of the Jail health contract. As explained above, Plaintiff points to no authority establishing that individuals in positions similar to that of Davis, Bonn, and Garrett violate the constitutional rights of individuals in custody by declining to fully implement any and all recommendations made by a county auditor. The individual defendants thus are entitled to qualified immunity on Plaintiffs first claim for relief.
Plaintiff similarly provides no authority establishing that executive county officials who are not responsible for nor directly involved in the oversight and administration of health services in the county jail violate the rights of individuals in custody by failing to monitor and enforce the county's contract with a third-party medical vendor. Indeed, Plaintiff relies on Paris v. Conmed Healthcare Mgmt. Inc., 2017 WL 7310079, at *13 (D. Or. Nov. 28, 2017), and Williams v. County, 2016 WL 4745179 (D. Or. Sept. 12, 2016), for the proposition that liability extends to "a jail supervisor such as a sheriff failing to train subordinates to implement safeguards, to oversee contract providers and to enforce contractual provisions for the provision of medical care[, ]" but neither case supports her position. In Paris, the court denied summary judgment to a county sheriff and his subordinate on an inadequate medical care claim due to their alleged failures to monitor and enforce the county's jail health contract, but unlike the individual defendants in this case, both were affirmatively charged with monitoring contract performance. Paris, 2017 WL 7310079 at *5, * 13-* 14. The court in Williams, on the other hand, denied a county sheriffs motion to dismiss based on qualified immunity where the plaintiff adequately alleged that the sheriff had failed to train his subordinates and had failed to implement and enforce policies and procedures regarding suicide prevention and inmate mental health needs. Williams, 2016 WL 4745179 at *6. Because a plaintiff "need not plead each detail of his case, but rather must allege facts, that if true, could allow 'a court to draw the reasonable inference that the defendant is liable for the misconduct alleged[, ]'" id., the Williams court's denial of a motion to dismiss based on qualified immunity is not enough to put the individual defendants on notice that their specific conduct violated Thomsen's constitutional rights. Accordingly, Plaintiff has failed to demonstrate the constitutional rights at issue here were clearly established, and the individual defendants are entitled to qualified immunity.
Conclusion
For the reasons stated above, the district judge should DENY the Washington County Defendants' Motion for Summary Judgment (ECF No. 17) as to the individual defendants, and DEFER ruling as to Washington County.
Scheduling Order
The Findings and Recommendation will be referred to a district judge. Objections, if any, are due on July 20, 2021. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.