Derby v. Columbia Cnty.

Full title: MICHELLE DERBY, as legal guardian for William Derby, an individual…

Court: United States District Court, District of Oregon

Date published: Feb 23, 2024

3:21-cv-1030-HL (D. Or. Feb. 23, 2024)

Opinion

3:21-cv-1030-HL

02-23-2024

MICHELLE DERBY, as legal guardian for William Derby, an individual, Plaintiff, v. COLUMBIA COUNTY, an Oregon municipality; CORRECT CARE SOLUTIONS, LLC, d/b/a/ Wellpath, LLC; JEFFREY DICKERSON, in his official capacity; CHRIS HOOVER, in his official capacity; JUSTIN HECHT, in his official capacity; and NANCY RONAN, in her individual capacity, Defendants.

ANDREW HALLMAN UNITED STATES MAGISTRATE JUDGE

AMENDED FINDINGS AND RECOMMEDNATION

ANDREW HALLMAN UNITED STATES MAGISTRATE JUDGE

Plaintiff Michelle Derby, the legal guardian for William Derby (“Derby”), brings this action against multiple Defendants stemming from Derby's treatment while he was incarcerated at Columbia County Jail (“CCJ”). Defendants Columbia County, Jeffrey Dickerson, Chris Hoover, and Justin Hecht (collectively, “County Defendants”) have filed a motion for summary judgment. County Mot., ECF 68. Defendants Correct Care Solutions, LLC, d/b/a/ Wellpath, LLC (“Wellpath”) and Nancy Ronan (collectively, “Wellpath Defendants”) filed a separate motion for summary judgment. Wellpath Mot., ECF 76. Oral argument on Defendants' motions was held on December 6, 2023. For the reasons explained below, County Defendants' motion for summary judgment should be GRANTED in part and DENIED in part, and Wellpath Defendants' motion for summary judgment should be GRANTED.

BACKGROUND

Plaintiff is the biological sister of William Derby (“Derby”). FAC ¶5. On October 16, 2017, Plaintiff was appointed as the legal guardian for Derby based on Derby's lack of competence due to mental illness. Id.

Defendant Columbia County owned and operated CCJ. Id. ¶6. Defendant Jeffrey Dickerson (“Dickerson”) was the Sheriff of Columbia County and was in charge of operating the jail. Id. ¶9. Defendants Chris Hoover (“Hoover”) and Justin Hecht (“Hecht”) were both probation officers employed by Columbia County. Hoover Decl. ¶1, ECF 74; Hecht Decl. ¶1, ECF 72. Defendant Wellpath was a corporation contracted by Columbia County to provide medical services at the Jail. FAC ¶8. Defendant Nancy Ronan (“Ronan”) was a nurse practitioner for Wellpath who worked at the jail. Id. ¶¶ 10-12.

In August 2015, Derby was convicted of Possession of Methamphetamine and was sentenced to 18 months of supervised probation in Columbia County. Hecht Decl. ¶3. Derby's probation was initially assigned to officer Hecht but was taken over by officer Hoover in October of 2015. Id. ¶4; Hoover Decl. ¶4.

On February 3, 2016, Hoover saw Derby in a grocery store with two bottles of alcohol; Hoover determined that Derby had a BAC of 0.069%. Hoover Decl. Ex. 1 at 2, ECF 74-1. The special conditions of Derby's probation prohibited him from possessing or consuming alcoholic beverages. Id. Derby had also failed to report for a urine test and failed to report to the probation office. Id. Hoover prepared a Notice of Violation, and a probation violation hearing took place on February 17, 2016. Id. ¶¶9-10; Nweze Decl. Ex. 1 at 1, ECF 75-1. Derby was found in violation of his probation and was sentenced to one year in jail. Id. at 4; Hoover Decl. ¶¶10-11. As a result of that sentence, Derby was incarcerated in CCJ from February 3, 2016, through September 21, 2016. Pixley Decl. ¶2, ECF 73.

In February 2016, CCJ initially housed Derby in “C-Pod” based on his designation as a “medium” security risk. Pixley Decl. Ex. 1, ECF 73-1. “C-Pod” is typically utilized for adults in custody (“AICs”) who do not “get along well” with other AICs in the general population. Pixley Decl. ¶3. AICs in “C-Pod” are generally permitted out of their cell for four (4) hours per day. Id.

When Derby was booked into CCJ on February 3, 2016, he was “visiabley [sic] upset” and stated that he was “pretty sure” he had been sexually assaulted during a prior incarceration at CCJ, over sixty days prior. Pixley Decl. Ex. 4 at 1, ECF 73-4. The next day, February 4, 2016, Officer Bonds met with Derby and recorded their interview, id. at 2; Derby told Officer Bonds that he had woken up in his cell with wet spots on the back of his jail pants and shirt and felt sore. Id. Derby said that he had been housed with someone named, Jason. Id. Officer Bonds wrote in his report, “I know he was housed in AL6 in the past with Jason Emanuel. I asked if meant the large Indian looking guy and he said he did. Emanuel is large and looks Indian.” Id. On February 8, 2016, Detective Olsen met with Derby and asked if the wet spots appeared to be semen, and Derby said, yes. Id. at 3. Detective Olsen wrote, “Derby said he didn't think that Jason had done anything and it may have been a guard. Derby said that there was no guard in his cell that he could recall. Derby said he wasn't sure 100% that it had really happened.” Id. No further investigation took place.

During Derby's incarceration in 2016, he violated jail policies and corrections officers' directives, and CCJ imposed sanctions. Pixley Decl. Ex. 2 at 1-15, ECF 73-2; Resp. County Mot. Ex. 3 at 1-14. Corrections officers reported incidents of Derby yelling, swearing at jail staff, behaving disrespectfully, and causing disturbances. Pixley Decl. Ex. 2 at 1, 4, 10-15. As a result of his rule violations, Derby was subject to a total of 19 days of “disciplinary segregation” during his 2016 incarceration. Pixley Decl. ¶4. CCJ placed Derby in “A-Pod” housing from April 8, 2016, through May 6, 2016 and again from July 17, 2016 through September 21, 2016. Id. ¶5. “A-Pod” is a restricted unit housing with two-person cells that are utilized for AICs who are placed on pre-classification, administrative, or disciplinary lockdown. Id. In “A-Pod,” AICs are generally in their cell 20-23 hours a day. Id.

On September 21, 2016, Derby was released from CCJ and immediately reported to Hoover, who explained to Derby that he had 18 months of supervised probation to serve. FAC ¶35. On October 12, 2016, Hoover was informed that Derby had been arrested for disorderly conduct in Klamath Falls. Hoover Decl. Ex. 6 at 2, ECF 74-6. Hoover issued a warrant for Derby's failure to report a change of address but agreed to “lift” the warrant to allow Derby time to enroll in a residential treatment program. Hoover Decl. ¶19. On January 19, 2017, Hoover determined that Derby had not checked into a treatment program, id. ¶18, and on January 24, 2017, Hoover filed a Notice of Violation, and issued a warrant for Derby. Id. ¶13. After Derby's arrest, he pleaded guilty and was convicted of the parole violation. Id. ¶14.

Derby was again booked into CCJ on February 7, 2017. Id. ¶15; Pixley Decl. ¶2. On February 8, 2017, Wellpath staff conducted a medical screening of Derby and noted that he demonstrated “appropriate” affect, speech, mood, and behavior. Resp. County Mot. Ex. 8 at 8, ECF 86-9. The screening checked “no” regarding thoughts of suicide, signs of depression, and anxiety. Id. at 7-8. Under the referral section, the boxes were checked under “mental health” for “acute problems - immediate referral (psychosis, suicidal)” and “routine problems - (current treatment non-emergent, chronic, developmental disability.” Id. at 9. The next day, on February 9, 2017, Derby was referred to and seen by a Wellpath mental health counselor for a behavioral health assessment. Taylor Decl. Ex. 2 at 34. Derby denied suicidal or homicidal ideation and related that he felt “stable” and had “no concerns.” Id. Derby told the counselor that he saw “no need” for a mental health follow up and would request help if he wanted to be seen for follow up. Id. On February 19, 2017, Wellpath completed a physical assessment of Derby, and his speech, affect, and mood were all marked as “appropriate.” Id. at 13. In the summary section, the boxes were marked for “Mental health problems requiring routine follow-up” and “Routine mental health referral.” Id.

As part of Derby's intake at CCJ, Wellpath requested and received Derby's pharmacy records which showed that Derby had been prescribed multiple medications in the past, including Sertraline and Clonidine. Taylor Decl. Ex. 2 at 47-49. On February 21, 2017, nurse practitioner Nancy Ronan (“Ronan”) reviewed Plaintiff's medication list, id. at 10, and issued Derby a prescription for Clonidine and Sertraline. Id. at 2. Derby's medical notes indicate that he was prescribed both medications to treat depression and anxiety. Id. at 46, 49. On February 21, 22, 23, and 24, 2017, Derby refused both Sertraline and Clonidine six of eight times that he was offered the medications. Id. at 50. On February 24, 2017, Ronan discontinued Derby's prescriptions for Sertraline and Clonidine. Id. at 2, 10.

During Derby's February 7-April 4, 2017 incarceration at CCJ, he was housed in “C-Pod” due to his designation as a “medium” security risk. Pixley Decl. ¶7; id. Ex. 5.

On February 15, 2017, Columbia County Circuit Court Judge Jenefer Grant found Derby in violation of his probation and sentenced him to a 90-day sanction. Hoover Decl. Ex. 7, ECF 74-7. In Judge Grant's Judgment and Probation Order, she marked, “Eligible for furlough to residential chemical dependency program,” and wrote in pen, “Balance of [Derby]'s sentence to be suspended if [he] is furloughed to a residential program.” Id. Hecht, who was present at the hearing, misunderstood the order and thought that Derby's sentence would be suspended only upon his completion of a treatment program, and not just upon his furlough from jail to a treatment program. Hecht Decl. ¶6.

On March 9, 2017, Hecht visited Derby in jail as a favor to Derby's family. Id. ¶7. Although Hecht was not Derby's probation officer, he came to CCJ to assist Derby in filling out paperwork to help get him into a chemical treatment program. Id.; Resp. County Mot. Ex. 13 at 17, ECF 81-12. During that visit, Hecht erroneously told Derby that if Derby were furloughed to a treatment program and did not successfully complete the program, he would be required to serve the balance of his jail sentence at CCJ. Hecht Decl. ¶7. Hecht next stopped by Captain Weaver's office to ask whether CCJ had received the necessary paperwork for Derby to be considered for a furlough to a treatment program. Resp. County Mot. Ex. 13 at 17, ECF 81-12. Captain Weaver told Hecht that CCJ had received the necessary paperwork, but that Derby had made the decision not to seek a treatment program. Id. Ex. 14 at 17, ECF 81-13. No further steps were taken to transfer Derby.

From March 10 to March 21, 2017, Derby missed twenty-four of thirty-six meals. Nweze Decl. Ex. 13 at 1-5, ECF 75-13. Derby missed all meals on two days, and he missed one or two meals on eight days. Id. Jail staff did not regard Derby's missed meals as a hunger strike. CCJ's hunger policy states:

Staff will consider any [AIC] refusing food for 72 hours to be on a hunger strike, and will refer him/her to the medical department for evaluation and possible treatment. However, any [AIC] refusing food and proclaiming to be on a hunger strike will be referred to the medical department regardless of whether 72 hours have passed.

Pixley Decl. Ex. 18, ECF 73-18. On March 23, 2017, a Wellpath counselor visited Derby regarding his missed meals. Taylor Decl. Ex. 2 at 33, ECF 77-2. The progress notes from that visit state that a corrections officer confirmed that Derby was eating again. Id. When the counselor visited Derby again on March 27, 2017, Derby denied wanting to harm himself and did not want to discuss his reasons for not eating. Id.

When Derby was released from CCJ on April 4, 2017, his parents and sister observed that he did not look himself. Resp. County Mot. Ex. 27 at 12-13, ECF 81-26; id. Ex. 1 at 21, ECF 81-1. Derby was non-vocal, had no energy, and had lost more than 25 pounds since he was booked into CCJ on February 7, 2017. Id. Ex. 27 at 12-13; id. Ex. 26. On April 6, 2017, Derby sought a medical assessment at Columbia Community Mental Health (“CCMH”) for depression and anxiety. Nweze Decl. Ex. 5 at 5, ECF 75-5; Resp. County Mot. Ex. 28 at 5, ECF 81-27.¹ The provider noted a diagnosis of “Adjustment Disorder with mixed anxiety and depression” and found that Derby did not present a risk of suicide or pose a risk of harm to himself or others. Id. at 3. On April 8, 2017, Derby collapsed at his parents' home and was taken to Good Samaritan hospital where he was seen by Dr. Jeffrey Meyerhoff. Nweze Decl. Ex. 6, ECF 75-6. Dr. Meyerhoff noted that Derby came in “reporting suicidal ideation and still has some of those feelings but it does not appear to be active at this time.” Id. at 11. Good Samaritan communicated with Dr. Allison Hadley at Unity Center for Behavioral Health (“Unity”) who accepted Derby for transfer on April 10, 2017. Id. at 13.

1 CCMH and one of its employees were previously named in this action, but were dismissed based on the stipulation of the parties. ECF 98.

On the day of Derby's transfer to Unity, April 10, 2017, a CCMH case manager visited Derby, found that he was doing well, and recommended that he be released the next day. Derby's family expressed concern about Unity releasing Derby sooner than the five-day stay that Dr. Meyerhoff had recommended. Id. On April 12, 2017, Dr. Hadley approved Derby's discharge and noted that Derby had been transferred from Good Samaritan for “worsening depression, weight loss and suicidal thoughts” but had “improved with medication regiment of Wellbutrin and Zyprexa.” Nweze Ex. 7 at 10, ECF 75-7. Dr. Hadley stated that “[Derby] denies thought of harm to self or others . . . he has been eating and drinking appropriately and is able to formulate a plan for self-care and follow up.” Id. Unity discharged Derby on April 12, 2017. Id.

After Derby's discharge from Unity, he was seen at CCMH on April 13, 2017, for an assessment. Nweze Decl. Ex. 9, ECF 75-9. When the provider asked Derby if he “actually had any thoughts of killing himself or someone else,” Derby said, yes. Id. at 2. Derby also stated that “he felt good and was in a safe home,” and agreed to contact his crisis worker if he experienced thoughts of self-harm or suicide. Id. at 2-3.

On April 16, 2017, Derby attacked his mother in their family home and cut her throat multiple times. Resp. County Mot. Ex. 29 at 17, ECF 81-28. As a result of his actions, Derby was arrested and charged with Attempted Murder, Assault in the Second Degree, Unlawful Use of a Weapon, and Menacing. Pixley Decl. ¶8; Nweze Decl. Ex. 10, ECF 75-10. After his arraignment, Derby was held in CCJ from April 16 until May 18, 2017, and again from August 1 until November 3, 2017. Pixley Decl. ¶2. During those incarceration periods, Derby was housed in “B-Pod” due to his designation as a “maximum” security risk. Id. ¶8. “B-Pod” is typically utilized for AICs who are deemed a potential security risk, either through behavior or the severity of charges. Id. AICs in “B-Pod” are typically permitted out of their cell for three hours per day. Id.

When Derby was booked in CCJ on April 16, 2017, a “Suicide Screening” was completed. Pixley Decl. Ex. 7, ECF 73-7 Jail staff noted in the assessment that they did not observe behaviors or statements from Derby that gave them concerns that Derby was at risk for suicide. Id. On May 7, 2017, Derby requested a razor blade for shaving from Deputy Kyles. Kyles Decl. ¶2, ECF 70. Before Kyles dispensed a razor to Derby, she confirmed that Derby was not on suicide watch or on the jail's “no razor” list. Id. ¶3. The “no razor” list contains a list of AICs who should not be dispensed razor blades due to safety and security reasons. Id. Prior to providing Derby with a razor, Kyles asked him how he was feeling, and Derby responded with a big smile and a thumbs up. Id. ¶4. Later that same day Derby attempted to commit suicide by cutting his neck with the razor blade. Nweze Decl. Ex. 12, ECF 75-12. Derby received medical attention and medics were called to provide transport to the nearest hospital. Id.

On October 31, 2017, Derby pleaded guilty except for insanity to the charge of Assault in the Second Degree. Resp. County Mot. Ex. 33 at 2, ECF 81-31. Columbia County Circuit Court found that “[Derby] is affected by a mental disease or defect, to wit: Schizophrenia; [t]hat as a result of mental disease or defect at the time of engaging in criminal conduct, [Derby] lacked substantial capacity either to appreciate the criminality of the conduct or to conform his conduct to the requirements of law[.]” Id.

After those events, Derby's parents, Michael and Janice Derby, sued Columbia County for negligence in Multnomah County Circuit Court Case No. 19CV17239. Resp. County Mot. Ex. 36, ECF 81-34.

PLAINTIFF'S CLAIMS

Plaintiff filed the FAC on May 12, 2023, alleging the following: (1) Against all Defendants, Plaintiff alleges violations of Derby's rights under the Eighth and Fourteenth Amendments pursuant to 42 U.S.C. § 1983; (2) against Columbia County and Hoover, Plaintiff alleges violations of Derby's rights under the Fourth Amendment pursuant to § 1983; (3) against Columbia County, Plaintiff alleges violations of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12191 et. seq., and the Rehabilitation Act, 29 U.S.C. § 794; and (4) against all Defendants, Plaintiff alleges negligence claims under the Oregon Tort Claims Act (“OTCA”), Or. Rev. Stat. (“ORS”) § 30.265 et. seq. FAC ¶¶70-96, ECF 40.

In Plaintiff's response to Defendants' motions for summary judgment and during oral argument, Plaintiff stipulated to the dismissal of the following claims: (1) § 1983 claims for deliberate indifference against Hoover and Hecht (Claim 1, Counts 4 and 5), Resp. County Mot. 42, ECF 81; (2) § 1983 claim for false arrest against the County and Hoover (Claim 3), id.; and (3) negligence claim against Hoover (Claim 6), id. at 56. Additionally, Plaintiff stipulated to the partial dismissal of the following claims: (1) § 1983 claims for deliberate indifference against Ronan and Wellpath (Claim 1, Counts 3 and 6), Resp. Wellpath Mot. 27, 33; (2) ADA and Rehabilitation Act claim against the County (Claim 2) (stipulated at oral argument); (3) negligence claims against the County (Claim 4), Resp. County Mot. 56-57; and (4) negligence claims against Wellpath and Ronan (Claims 5 and 8), Resp. Wellpath Mot. 32-33.

County Defendants and Wellpath Defendants argue that Plaintiff's remaining claims are barred by the statute of limitations. County Mot. 19-20; Wellpath Mot. 13-14. In the alternative, Defendants argue that Plaintiff's claims should be dismissed because there is insufficient evidence to raise a genuine issue of material fact as to the elements of Plaintiff's claims. Id. at 12-28; County Mot. 20-52. Each argument is discussed in turn below.

SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate where the moving party “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) (2019). The moving party bears the initial burden of establishing the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To meet this burden, the party asserting that a fact cannot be genuinely disputed must support that assertion with admissible evidence. FED. R. CIV. P. 56(c).

If the moving party establishes the absence of a genuine issue of material fact, the nonmoving party must go beyond the allegations in the complaint to demonstrate a genuine issue for trial. Celotex, 477 U.S. at 324. A party cannot defeat a summary judgment motion by relying on the allegations set forth in the complaint, unsupported conjecture, or conclusory statements. Hernandez v. Spacelabs Med., Inc., 343 F.3d 1107, 1112 (9th Cir. 2003). Summary judgment thus should be entered against “a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322.

The court views the evidence in the light most favorable to the nonmoving party. Bell v. Cameron Meadows Land Co., 669 F.2d 1278, 1284 (9th Cir. 1982). All reasonable doubt as to the existence of a genuine issue of fact should be resolved against the moving party. Hector v. Wiens, 533 F.2d 429, 432 (9th Cir. 1976).

DISCUSSION

I. Statute of Limitations

The parties agree that there is a two-year statute of limitations for all of Plaintiff's claims. See Findings and Recommendation 18, ECF 35; ORS 30.275(9) (two-year statute of limitations for state-law claims against public body); ORS 12.110(1) (two-year statute of limitations for personal injury actions); Sain v. City of Bend, 309 F.3d 1134, 1139 (9th Cir. 2002) (explaining that Oregon's two-year statute of limitations for personal injury actions applies to actions under 42 U.S.C. § 1983); VanValkenburg v. Oregon Dep't of Corr., 3:14-cv-00916-BR, 2016 WL 2337892, at *8 (D. Or. May 2, 2016) (noting two-year statute of limitations for claims under the ADA). Plaintiff initiated this action on July 9, 2021, and brings claims against Defendants based on events that allegedly occurred while Derby was incarcerated at CCJ in 2015, 2016, and 2017. See generally FAC. Thus, the parties agree that Plaintiff's claims are untimely unless they are tolled by ORS 12.160(3), which tolls the two-year statute of limitations due to a “disabling mental condition.” See County Mot. 19; Wellpath Mot. 12; FAC ¶4.

ORS 12.160(3) provides that if “at the time [a] cause of action accrues the person has a disabling mental condition that bars the person from comprehending rights that the person is otherwise bound to know, the statute of limitation for commencing the action is tolled for so long as the person has” that disabling condition. Id.; Ogan v. Oregon Health & Sci. Univ., 3:17-CV-1849-SI, 2018 WL 2105378, at *1 (D. Or. May 7, 2018) (discussing statute). The statute of limitations may be extended for no more than five years, and no more than “one year after the person no longer has a disabling mental condition barring him or her from comprehending rights that he or she is otherwise bound to now, whichever occurs first.” ORS 12.160.

In July 2017, Dr. Lindsay Graham evaluated Derby and diagnosed him with “Unspecified Schizophrenia Spectrum and Other Psychotic Disorder.” Nweze Decl. Ex. 15 at 8, ECF 75-15. During that examination, Derby “presented as mentally stable,” and Dr. Graham concluded that he “had the present capacity to stand trial.” Id. at 9. However, Dr. Graham also noted that “Derby began to exhibit symptoms associated with psychosis . . . [in 2016]” when he “demonstrated . . . tangential thinking . . . evidence of responding to internal stimuli/auditory hallucinations, and paranoid thinking.” Id. Dr. Graham also noted that Columbia County Circuit Court found Derby “unfit to proceed” in May 2017 and again in June 2017 and “Derby was therefore admitted to the Oregon State Hospital [(“OSH”)] . . . for treatment until his capacity to stand trial was gained or regained.” Id. at 1. In October 2017, Dr. Alexander Millkey's report was similarly mixed. She found that Derby “had the ability to understand the nature of the proceeding, assist and cooperate with counsel and participate in the proceedings,” Resp. County Mot. Ex. 33, but also diagnosed Derby with schizophrenia and cited clinical reports of Derby's “delusional” and “paranoid” thinking and behaviors in 2016 and 2017. Id. at 12, 15. Moreover, Columbia County Circuit Court relied on Dr. Millkey's evaluation in finding that Derby was guilty except for insanity on October 31, 2017. See Resp. County Mot. Ex. 33 at 2. Based on that evidence, a reasonable jury could find that Derby had a disabling mental condition that barred him from understanding his rights in 2016 and 2017.

Defendants cite a CCMH evaluation from January 4, 2019, noting that Derby appeared “to be psychiatrically stable,” Nweze Decl. Ex. 19 at 11, and argue that Plaintiff has failed to show that Derby was unable to comprehend his rights “following his release from custody and after having received treatment from the State Hospital.” County Reply 8, ECF 92. Defendants' point is well taken, but Derby was a patient at OSH until December 2018 and was then admitted into the Oregon Psychiatric Security Review Board (“PSRB”) Alternatives program as a residential patient “with a diagnosis o[f] Schizophrenia.” Id. at 8-9. That evidence, viewed in the light most favorable to Plaintiff, raises genuine questions about Derby's ability to understand his rights-even while undergoing treatment. Based on that evidence and the evaluations of Dr. Graham and Dr. Millkey, a reasonable jury could find that Derby had a disabling condition that barred him from understanding while incarcerated at CCJ, through his subsequent confinement at OSH, and as a patient under the jurisdiction of the PSRB. See Gaspar v. Vill. Missions, 154 Or.App. 286 (1998) (noting that “the extent of the disabling effects of a mental condition is normally a question of fact for the jury”); cf. Ogan, 2018 WL 2105378, at *2 (finding that a psychiatric evaluation did not create a genuine dispute as to whether the plaintiff had a mental condition that barred him from comprehending his rights because the evaluator's reference to the “chronic discrepancy” between the plaintiff's and others' perceptions was made “in the context of a report describing [the plaintiff's] disinhibition, irritability, and increased verbal aggression toward others”). Accordingly, this Court should deny summary judgment to all Defendants on the grounds that Plaintiff's claims are untimely, as this presents a question of fact for the jury.

II. Section 1983 Claims

A. Inadequate Medical Care Standards

“Individuals in state custody have a constitutional right to adequate medical treatment.” Sandoval v. Cnty. of San Diego, 985 F.3d 657, 667 (9th Cir. 2021), cert. denied sub nom. San Diego Cnty. v. Sandoval, 142 S.Ct. 711 (2021) (citing Estelle v. Gamble, 429 U.S. 97, 104-05 (1976)). “[P]retrial detainees have not yet been convicted of a crime and therefore are not subject to punishment by the state.” Id. Accordingly, “their rights arise under the Fourteenth Amendment's Due Process Clause.” Id. (citing Bell v. Wolfish, 441 U.S. 520, 535-36, 535 n.16 (1979)). For “[AIC]s serving custodial sentences following a criminal conviction, that right is part of the Eighth Amendment's guarantee against cruel and unusual punishment.” Id. “Under both clauses, the plaintiff must show that the prison officials acted with deliberate indifference.” Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1068 (9th Cir. 2016).

1. Eighth Amendment Standard

To establish an Eighth Amendment claim for deliberate indifference, an AIC must show: (1) they had a “serious medical need,” and (2) defendants were “deliberately indifferent” to that need. Estelle, 429 U.S. at 104. “[A] serious medical need is present whenever the failure to treat [an AIC]'s condition could result in further significant injury or the unnecessary and wanton infliction of pain[.]” Clement v. Gomez, 298 F.3d 898, 904 (9th Cir. 2002) (simplified).

“[T]he Eighth Amendment's deliberate indifference standard looks to the subjective mental state of the person charged with violating a[n AIC]'s right to medical treatment.” Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1187 n.8 (9th Cir. 2002). Under the Eighth Amendment, a prison official acts with “deliberate indifference . . . only if the [prison official] knows of and disregards an excessive risk to inmate health and safety.” Id. at 1187 (simplified). Under this standard, the prison official must not only “be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists,” but that person “must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). “If a [prison official] should have been aware of the risk, but was not, then the [official] has not violated the Eighth Amendment, no matter how severe the risk.” Gibson, 290 F.3d at 1188 (citation omitted). This “subjective approach” focuses only “on what a defendant's mental attitude actually was[.]” Farmer, 511 U.S. at 839. “Mere negligence in diagnosing or treating a medical condition, without more, does not violate a[n AIC]'s Eighth Amendment rights.” Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (citing McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992) (simplified)). “Deliberate indifference is a high legal standard.” Id. at 1060.

2. Fourteenth Amendment Standard

A medical care claim brought by a pretrial detainee “must be evaluated under an objective deliberate indifference standard.” Gordon v. Cnty. of Orange, 888 F.3d 1118, 1125 (9^th Cir. 2018), cert. denied sub nom. Cnty. of Orange, Cal. v. Gordon, 139 S.Ct. 794 (2019) (citing Castro, 833 F.3d at 1070). The elements of a pretrial detainee's medical care claim under the Fourteenth Amendment against an individual defendant are:

(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 available 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 defendants caused the plaintiff's injuries.

Castro, 833 F.3d at 1071. Regarding 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 Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015)). The “‘mere lack of due care by a state official' does not deprive an individual of life, liberty, or property under the Fourteenth Amendment.” Id. (citation omitted). Thus, a pretrial detainee who asserts a due process claim for inadequate medical care “must . . . prove more than negligence but less than subjective intent-something akin to reckless disregard.” Id.

B. Deliberate Indifference Claims Against Columbia County and Dickerson

Plaintiff brings a Monell claim against Columbia County and Sheriff Dickerson, in his official capacity, (collectively, “County”), alleging that the County had “an unofficial custom . . . of failing to assist and being deliberately indifferent towards [AIC]s suffering from a serious medical need,” FAC ¶71, and “of classifying what they deemed to be the irregular behaviors of mentally ill [AIC]s as willful defiance of correctional officer authority.” Id. ¶75. More specifically, Plaintiff alleges that,

[i]f there had been proper (or any) training, officers would not have: [d]isciplined [Derby] to the same extent because they would have known his behaviors were caused by his mental illness; [i]solated [Derby] for over 5,000 hours in 2016; [f]ailed to conduct a reasonable investigation into [Derby]'s claim of sexual assault . . .; [i]gnored [Derby] when he was starving himself over twelve days; and [g]iven a razor blade to a well-known, mentally ill AIC who had recently attempted to take his mother's life because of paranoid delusions[.]

Resp. County Mot. 40.² Plaintiff alleges that the County's acts of deliberate indifference were “directly caused by an astounding degree of lack of training, which in turn caused him to attack his mother, and to later attempt suicide.” Id.

2 In its reply, the County objects that Plaintiff “‘may not effectively amend [her] Complaint by raising a new theory . . . in [her] response.'” County Reply 8, ECF 92 (quoting La Asociacion de Trabajadores de Lake Forest v. City of Lake Forest, 624 F.3d 1083, 1089 (9th Cir. 2010)). This Court acknowledges that Plaintiff's Monell claim alleges multiple instances of the County violating the rights of AICs at CCJ but fails to mention Derby by name, see FAC ¶¶75-76. However, this Court finds that the FAC provided sufficient notice of Plaintiff's claims by alleging that the County ignored the medical and mental health needs of AICs in situations that Derby actually faced and that the County was aware of and documented.

The County argues that Plaintiff has failed to plead or prove that any County employee knew that Derby had serious medical needs and disregarded them. County Mot. 20-25. This Court agrees and finds that the County is entitled to summary judgment on Plaintiff's deliberate indifference claims.

In Monell v. N.Y. City Dep't of Soc. Servs., 436 U.S. 658 (1978), the Supreme Court held that a municipal entity may be held liable under § 1983 where a plaintiff demonstrates that the constitutional violation complained of was caused by a municipal “policy or custom.” Id. at 694. To establish Monell liability, a plaintiff must allege that (1) they were deprived of a constitutional right; (2) the municipality had a policy, custom, or practice; (3) the policy, custom, or practice amounted to deliberate indifference of the plaintiff's constitutional rights; and (4) the policy, custom, or practice was the “moving force” behind the constitutional violation. Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011) (simplified). Further, if the policy or custom in question is an unwritten one, the plaintiff must show that it is so “persistent and widespread” that it constitutes a “permanent and well settled” practice. Monell, 436 U.S. at 691 (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-168 (1970)). “Liability for improper custom may not be predicated on isolated or sporadic incidents; it must be founded upon practices of sufficient duration, frequency and consistency that the conduct has become a traditional method of carrying out policy.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir.1996).

A municipal entity cannot be held liable under § 1983 where there is no underlying constitutional violation by its employees. Long v. City and County of Honolulu, 511 F.3d 901, 907 (9th Cir. 2007). In Long, the mother of a suspect who was shot and killed by police brought claims against the city, county, and police alleging the use of excessive force. Id. at 904. The Ninth Circuit found that the police officer acted reasonably and did not violate the decedent's Fourth Amendment rights. Id. at 907. The plaintiff alleged that the city failed to property train its officers regarding the use of deadly force, but the Ninth Circuit held that, “[i]f no constitutional violation occurred, the municipality cannot be held liable and whether ‘the department regulations might have authorized the [alleged violations] is quite beside the point.'” Id. (quoting City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (noting that “neither Monell . . . nor any other of our cases authorizes the award of damages against a municipal corporation based on the actions of one of its officers when . . . the officer inflicted no constitutional harm”)).

Here, Plaintiff alleges that County Defendants were deliberately indifferent to Derby's serious medical needs when they disciplined Derby for violating CCJ rules, and she argues that properly trained jail staff “would not have disciplined [Derby] to the same extent[.]” Resp. County Mot. 40. Assuming that CCJ staff were inadequately trained, that fails to show-and makes it far less likely-that anyone at CCJ could have recognized that Derby had serious medical needs when he was yelling, swearing, or causing other disturbances that violated CCJ rules. See Clement, 298 F.3d at 904 (noting that a “serious medical need is present whenever the failure to treat a[n AIC]'s condition could result in further significant injury or the unnecessary and wanton infliction of pain”). Plaintiff argues that CCJ's responses to Derby's behaviors caused Derby to attack his mother and attempt suicide, but there is no evidence that CCJ staff were aware that disciplining Derby for his rule violations would result in serious harm to Derby, let alone cause him to engage in violent attacks. See Toguchi, 391 F.3d at 1059 (noting that “there must be a conscious disregard of a serious risk of harm for deliberate indifference to exist”) (emphasis in original).

Plaintiff's corrections experts testified that Derby was kept in his cell for as many as 5,000 hours out of a total of 5,400 hours that he spent in CCJ in 2016, and they provided extensive testimony that AICs with mental illness often suffer serious decline from a lack of social interaction.³ See Resp. County Mot. Ex. 5 at 52-53; id. Ex. 6 at 5. However, Plaintiff cites no evidence that anyone at CCJ who was personally involved in Derby's rule violations subjectively understood that Derby faced a significant risk of deterioration when they placed him in restricted housing. See Gibson, 290 F.3d at 1187 n.8 (noting that the “Eighth Amendment's deliberate indifference standard looks to the subjective mental state of the person charged with violating a[n AIC]'s right to medical treatment”). As the Ninth Circuit has stated, “[i]f a [prison official] should have been aware of the risk, but was not, then the [official] has not violated the Eighth Amendment, no matter how severe the risk.” Toguchi, 391 F.3d at 1057 (citing Gibson, 290 F.3d at 1188)).

3 Plaintiff cites, without objection from County Defendants, expert testimony from the trial in Derby v. Columbia County et al., Multnomah County Circuit Court Case No. 19CV17239. See Resp. County Mot. Ex. 5 (undated direct examination of Philip Stanley, corrections expert); id.Ex. 6 (August 19, 2022 direct examination of Dr. Soroush Mohandessi, forensic psychiatrist); id. Ex. 7 (August 20, 2022 deposition of Dr. Michael Hamas-Garcia, corrections expert); id. Ex. 22 (June 8, 2022 deposition of Renee Dahring, nurse practitioner).

There is also no evidence that anyone at CCJ was deliberately indifferent to Derby's serious medical needs when Derby reported that he had been sexually assaulted. Plaintiff alleges that CCJ failed to adequately investigate Derby's report, but it is undisputed that Officer Bonds and Detective Olsen both interviewed Derby within a few days of Derby telling Officer Kyles that he was “pretty sure” that he had been sexually assaulted during his last stay at CCJ, see Pixley Decl. Ex. 4 at 1-3; Derby also told Detective Olsen that he “wasn't sure 100%” that the assault took place, id. at 3, and Sheriff Pixley explained in his declaration that “there was insufficient information to determine whether a sexual assault occurred.” Pixley Decl. ¶6. Even if CCJ staff should have done more to investigate Derby's report of sexual assault, “[m]ere negligence . . ., without more, does not violate a[n AIC]'s Eighth Amendment rights.” Toguchi, 391 F.3d at 1057 (simplified). Moreover, it is not apparent that anyone at CCJ was aware of an alleged risk of harm to Derby's health or that Derby could become violent as a result of the jail's investigation. Thus, no reasonable jury could find that the County's response to Derby's report of sexual assault constituted deliberate indifference to Derby's serious medical needs.

Plaintiff also fails to demonstrate that anyone at CCJ was deliberately indifferent to Derby's missed meals from March 10 to March 21, 2017, or responded in a manner that caused Derby to deteriorate, attack his mother, or attempt suicide. Plaintiff states repeatedly that Derby was on a “hunger strike,” but CCJ defines a hunger strike as missing meals for 72 hours or more or when an AIC declares a hunger strike and misses any meals-and Derby never said he was on a hunger strike or missed more than three meals in a row. Pixley Decl. Ex. 18 at 1 (CCJ hunger strike policy); Nweze Decl. Ex. 13 at 2-5 (CCJ record of Derby's missed meals). Although CCJ did not consider Derby's missed meals a hunger strike, someone apparently notified medical staff anyway, because a Wellpath counselor saw Derby on March 23 and 27, noted that he was eating again, and asked him about self-harm and his reasons for not eating. Taylor Decl. Ex. 2 at 33. Even if someone at CCJ should have reached out to medical staff sooner, as Plaintiff contends, there is no evidence that Derby faced a significant risk of harm of serious injury from the alleged delay, or that the timing of CCJ's response actually caused or contributed in any way to Derby's decline or other alleged injuries. Thus, no reasonable jury could find that anyone at the County “kn[ew] of and disregard[ed] an excessive risk to [Derby's] health and safety” based on CCJ's response to Derby's missed meals. See Gibson, 290 F.3d at 1187 (simplified).

Last, there is no evidence of deliberate indifference regarding the razor blade incident, which occurred on May 7, 2017, when Derby was a pretrial detainee. On that date, Deputy Kyles dispensed a razor blade to Derby after Derby requested one for shaving, and Derby used the razor blade to attempt suicide. Nweze Decl. Ex. 12 at 1, ECF 75-12; Kyles Decl., ECF 70. However, no reasonable jury could find that it was “objectively unreasonable” for Deputy Kyles to give Derby the razor blade, or that doing so showed “reckless disregard” for Derby's health or safety. See Castro, 833 F.3d at 1071 (citing standard for deliberate indifference claims under the Fourteenth Amendment). Before Deputy Kyles gave Derby the razor, she confirmed that Derby was not on suicide watch or the jail's “no razor” list. Kyles Decl. ¶3. When Deputy Kyles asked Derby how he was, Derby responded with “a big smile and a thumbs up” and said nothing that could give Deputy Kyles concern that he might be suicidal-all of which is consistent with the “suicide screening” the jail conducted three weeks prior that noted no concerns for Derby having suicidal ideation. See Pixley Decl. Ex. 7, ECF 73-7. Plaintiff argues that the jail “negligently failed” to designate Derby a suicide risk and that Deputy Kyles “should have been aware” that Derby was suicidal because of multiple warning signs, including Derby's history of mental illness at CCJ and his care at Good Samaritan hospital, Unity, and CCMH the previous month for suicidal ideation. Resp. County Mot. 58 (emphasis in original). However, neither negligence nor a “‘lack of due care by a state official'” can show deliberate indifference under the Fourteenth Amendment. Castro, 833 F.3d at 1071.

In sum, Plaintiff fails to demonstrate that that anyone at the County showed deliberate indifference to Derby's medical or mental health needs under the Eighth or Fourteenth Amendments. Because Plaintiff has failed to show that anyone at the County violated Derby's constitutional rights, her Monell claim against County Defendants cannot survive summary judgment. See Jackson v. City of Bremerton, 268 F.3d 646, 653-654 (9th Cir. 2001) (noting that “[n]either a municipality nor a supervisor can be held liable under § 1983 where no injury or constitutional violation has occurred” and affirming summary judgment for city as there was “no basis on which to find [the city] liable for the alleged use of excessive force”); see also Baker v. Ensign, 11-CV-2060-BAS WVG, 2015 WL 5568044, at *9 (S.D. Cal. Sept. 22, 2015) (granting county summary judgment on Monell claim because the plaintiff “cannot satisfy the first element for a Monell claim” where “there was no violation of [the plaintiff]'s Fourth or Fourteenth Amendment rights”).

C. Deliberate Indifference Claim Against Ronan

Plaintiff alleges that Ronan was deliberately indifferent to Derby's serious medical needs when she, (1) “failed to make reasonable efforts to persuade Mr. Derby to take his medication,” and (2) “fail[ed] to implement a plan . . . to stabilize [Derby's] condition” when Derby was missing meals. FAC ¶98. Ronan argues that she is entitled to summary judgment because there is no evidence that she knew of and disregarded a serious risk to Derby's health when she discontinued his medications, or knew that Derby was missing meals. Wellpath Mot. 21-25. This Court agrees and finds that Ronan is entitled to summary judgment on Plaintiff's deliberate indifference claim.

Plaintiff's first allegation refers to Ronan's decision to discontinue Sertraline and Clonidine for Derby on February 24, 2017, after he had been refusing both medications. See Taylor Decl. Ex. 2 at 50 (medical records showing that Derby declined Sertraline and Clonidine six of eight times he was offered the medications on February 21, 22, 23, and 24, 2017). Plaintiff broadly alleges that, because Ronan made no effort to persuade Derby to take Clonidine and Sertraline, Derby suffered mental and physical deterioration, attacked his mother, and attempted suicide. FAC ¶99. However, as Ronan points out, “Plaintiff cites no evidence that Derby would have taken the medications” or that “further encouragement would have changed his mind.” Reply 12, ECF 94. Plaintiff also cites no evidence that Derby suffered significant harm or injury specifically from not taking Clonidine and Sertraline-despite the fact that both medications are used to treat depression; Plaintiff's experts testified that the general conditions at CCJ regarding housing, discipline policies, and medical and mental health care cumulatively caused Derby to suffer significant decline and ultimately attack his mother on April 16, 2017, but Plaintiff fails to cite evidence that those harms would have been prevented had Ronan made an effort to persuade Derby to take his medications.⁴

4 In fact, the record indicates that Derby was compliant with Clonidine during his incarceration at CCJ in 2016 and yet still suffered paranoid thoughts, suicidal ideation, anxiety, and depression. See Taylor Decl. Ex. 2 at 45 (February 16, 2016 notes referring to Derby's “suicidality, delusional thoughts, paranoia, instability”); id. at 40 (February 24, 2016 notes describing Derby's expression of delusional thoughts about family and officers who “stalk and rob him”)); id. at 37 (June 28, 2016 notes that Derby had “delusional” thoughts and was feeling “anxious” and “depressed”). Additionally, there is no evidence that Derby had been compliant with Sertraline before he was booked at CCJ in February 2017 or that Sertraline had been effective in treating Derby's mental health conditions.

Plaintiff's medical expert, nurse practitioner Renee Dahring, testified that the standard of care would dictate that a provider would ask why a patient is refusing medications and, “if the medications are critical,” the provider should “perhaps try to convince them to take” the medications before discontinuing them. Resp. Wellpath Mot. Ex. 1 at 9, ECF 86-2. However, Ronan explained in her deposition that, “[i]t's no different than what I do at Adventist. If a patient is refusing to take a medication, I will take it off their med list. It is common practice.” Id. Ex. 3 at 37-38. Ronan also noted that nurses generally do encourage patients to take medication, id. at 34, and emphasized that “[t]he patient has a choice of taking [medications] or not,” Taylor Decl. Ex. 3 at 38-which Plaintiff does not dispute.

Although Ronan and Dahring apparently disagree as to how Ronan should have responded to Derby's medication refusals, “a mere ‘difference of medical opinion is insufficient, as a matter of law, to establish deliberate indifference.'” Toguchi, 391 F.3d at 1058 (citation omitted). Rather, “to prevail on a claim involving choices between alternative courses of treatment,” Derby “must show that the chosen course of treatment”-discontinuing his medications after he had been refusing them-“‘was medically unacceptable under the circumstances,' and was chosen ‘in conscious disregard of an excessive risk to [the AIC]'s health,” id. (citing Jackson, 90 F.3d at 332)-which Plaintiff fails to do. Moreover, the opinion of Plaintiff's expert sheds no light on Ronan's subjective state of mind. See Toguchi, 391 F.3d at 1059-60 (acknowledging an expert's opinion that the defendant failed to meet community standards and finding that evidence failed to show deliberate indifference because it “lacked any insight into [the defendant's subjective knowledge”).

Next, Plaintiff alleges that Ronan was deliberately indifferent to Derby's needs when he missed meals from March 10 until March 21, 2017, but Plaintiff fails to show that Ronan was aware that Derby was missing meals. Plaintiff argues that “[i]gnorance of [Derby]'s situation over multiple months is no defense because it was [] Ronan's job to know and take appropriate action,” Resp. Wellpath Mot. 23, but that fails to show that Ronan actually knew that Derby was missing meals or was subjectively aware that a failure to respond to his missed meals sooner than March 23, 2017, would create a substantial risk of serious harm to Derby, such as a deterioration in health, his attack of his mother, or his attempted suicide. The Ninth Circuit has made clear that, “[e]ven if a prison official should have been aware of the risk [to the AIC's health], if he ‘was not, then [he] has not violated the Eighth Amendment, no matter how severe the risk.'” Peralta v. Dillard, 744 F.3d 1076, 1086 (9th Cir. 2014) (quoting Gibson, 290 F.3d at 1187) (emphasis in original).

In sum, Plaintiff fails to cite evidence to raise a genuine issue of fact as to whether Ronan knew of and disregarded significant risks to Derby's health when she discontinued his medications, or whether she knew about his missed meals. Ronan is therefore entitled to summary judgment on Plaintiff's deliberate indifference claims.⁵

5 Wellpath Defendants argue that Plaintiff raised new claims of deliberate indifference against Ronan in Plaintiff's response to Wellpath Defendants' motion for summary judgment that were not asserted in the FAC. Reply 14, 17-19. This Court agrees that the FAC alleged deliberate indifference only regarding Derby's missed meals and discontinued medications, see id. ¶98 and Resp. Wellpath Mot. 21, and finds that Plaintiff's response asserts new theories of deliberate indifference against Ronan regarding situations and incidents not raised in the FAC. See id. (allegations regarding Derby's suicide attempt); id. at 25-26 (alleging “a total lack of action or follow through” as to mental health treatment); id. at 26, 29 (alleging a failure to transfer); id. at 28-29 (alleging failures as to visits and credentials of mental health professionals). Because Plaintiff did not assert those theories of liability in the FAC, Ronan is entitled to summary judgment on those claims. See City of Lake Forest, 624 F.3d at 1089 (“[the plaintiff] may not effectively amend its Complaint by raising a new theory . . . in its response to a motion for summary judgment”). The FAC also contains no deliberate indifference claim against Ronan based on supervisory liability. See Wellpath Reply 14. Ronan is therefore entitled to summary judgment on Plaintiff's deliberate indifference claim to the extent that it is based on a theory of supervisory liability.

D. Deliberate Indifference Claim Against Wellpath

Plaintiff brings a Monell claim against Wellpath alleging that it was deliberately indifferent to Derby's serious medical needs when it failed to transfer him from CCJ to a mental health facility. FAC ¶86. Wellpath argues that Plaintiff's claim cannot survive summary judgment because she fails to plead or prove the elements of a Monell claim. Wellpath Mot. 2528. This Court agrees and finds that Wellpath is entitled to summary judgment on Plaintiff's Monell claim because Plaintiff fails to cite sufficient evidence regarding an underlying violation of Derby's rights or that Wellpath had a policy, custom, or practice of failing to transfer mentally ill AICs to outside treatment facilities.

Plaintiff broadly alleges that Wellpath should have transferred Derby to a treatment facility because Derby “demonstrated psychotic behaviors and an inability to function in the jail since 2012.” Resp. Wellpath Mot. 33. However, that fails to show that Wellpath knew that Derby would suffer “significant injury or the unnecessary and wanton infliction of pain,” if Wellpath failed to transfer him to an outside facility, see Clement, 298 F.3d at 904, and Plaintiff cites no evidence that anyone at Wellpath “was subjectively aware that [its] failure to [transfer Derby] . . . created a ‘substantial risk of serious harm' to [Derby]”-such as the attack on his mother or his attempted suicide. See Toguchi, 391 F.3d at 1060. Because Plaintiff fails to establish an underlying violation of Derby's rights, Wellpath is entitled to summary judgment on Plaintiff's Monell claim on that ground alone. See Dougherty, 654 F.3d at 900 (a Monell claim requires proof that a municipal entity deprived the plaintiff of a constitutional right); Long, 511 F.3d at 907 (to allege a viable Monell claim, a plaintiff must establish that the municipal entity violated the plaintiff's constitutional rights).

Even if Plaintiff could show that Wellpath violated Derby's rights by failing to transfer him to a care facility, there is no evidence that Wellpath maintained a policy, practice, or custom of failing to transfer AICs with mental health needs to such facilities. Plaintiff broadly alleges that Wellpath had a “custom” of failing to transport AICs with “dire medical needs” to outside treatment facilities, but there is no question that Wellpath had an actual, written policy for transferring qualified AICs “[i]f the mental health needs of the patient exceed the capabilities of the facility.” ECF 91-1 at 3. Thus, Plaintiff brings her Monell claim on the basis of an unofficial policy or unwritten custom that Wellpath allegedly maintained; as such, Plaintiff must show that Wellpath's discriminatory or unlawful conduct was so “persistent and widespread” that it constituted a “permanent and well settled” practice-which she fails to do. Monell, 436 U.S. at 691 (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-168 (1970)). Plaintiff cites the complaint in a civil rights case that was filed against Wellpath in this Court, see Case No. 3:22-cv-300, and the response to the defendant's motion for summary judgment in a civil rights case filed in this Court against Columbia County, see Case No. 3:20-cv-0584. Resp. Wellpath Mot. 33-34. However, the plaintiff's allegations in those cases do not constitute evidence, and Plaintiff cites no cases where Wellpath was found liable for failing to transfer AICs to outside treatment facilities in violation of their constitutional rights. Plaintiff has therefore failed to show that Wellpath maintained an unofficial custom or policy of failing to transfer AICs with mental health needs to outside care facilities. See Trevino, 99 F.3d at 918 (“[l]iability for improper custom may not be predicated on isolated or sporadic incidents; it must be founded upon practices of sufficient duration, frequency and consistency that the conduct has become a traditional method of carrying out policy”).

Wellpath is therefore entitled to summary judgment on Plaintiff's Monell claim.

III. ADA & Rehabilitation Act Claims

A. ADA and Rehabilitation Act Standards

Title II of the ADA provides:

[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.

42 U.S.C. § 12132. Title II covers discrimination against AICs in state or local prisons. Penn. Dept't of Corr. v. Yeskey, 524 U.S. 206, 210 (1998). Section 504 of the Rehabilitation Act provides: “No otherwise qualified individual with a disability . . . shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a); see also Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002) (“Title II of the ADA and § 504 of the [Rehabilitation Act] both prohibit discrimination on the basis of disability”). This Court “‘analyze[s] the . . . ADA and Rehabilitation Act claims together because the statutes provide identical remedies, procedures and rights.'” Gillette v. Oregon, 3:20-CV-00513-IM, 2022 WL 2819057, at *8 (D. Or. July 19, 2022) (quoting Vos v. City of Newport Beach, 892 F.3d 1024, 1036 (9th Cir. 2018) (simplified)).

To prevail on an ADA claim under Title II, a plaintiff must show that: “(1) he is a ‘qualified individual with a disability'; (2) he was either excluded from participation in or denied the benefits of a public entity's services, programs, or activities, or was otherwise discriminated against by the public entity; and (3) such exclusion, denial of benefits, or discrimination was by reason of his disability.” Updike v. Multnomah Cnty., 870 F.3d 939, 949 (9th Cir. 2017) (quoting Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1135 (9th Cir. 2001), as am. on denial of reh'g (Oct. 11, 2001)).

Inadequate medical treatment or the lack of treatment cannot support liability under the ADA. See Simmons v. Navajo Cty., 609 F.3d 1011, 1022 (9th Cir. 2010) (“[t]he ADA prohibits discrimination because of disability, not inadequate treatment for disability”), overruled on other grounds by Castro v. Cty. of Los Angeles, 833 F.3d 1060 (9th Cir. 2016) (en banc). However, in an unpublished memorandum opinion, the Ninth Circuit noted that “[i]nadequate medical care” can provide a basis for an ADA claim where “medical services are withheld by reason of a disability.” Marlor v. Madison Cnty., Idaho, 50 Fed.Appx. 872, 873 (9th Cir. 2002) (emphasis in original) (citing Bryant v. Madigan, 84 F.3d 246, 248-49 (7th Cir. 1996)).

To prevail on a claim for damages under Title II of the ADA or § 504 of the RA, “[a] plaintiff must prove discriminatory intent[.]” Wallace v. Washington Cnty. Jail, 3:18-CV-1975-SI, 2023 WL 4744740, at *7 (D. Or. July 25, 2023) (citing Ferguson v. City of Phoenix, 157 F.3d 668, 674 (9th Cir. 1998)); A.G. v. Paradise Valley Unified Sch. Dist. No. 69, 815 F.3d 1195, 1204 (9th Cir. 2016) (simplified) (to recover damages under the ADA “plaintiffs must prove a mens rea of intentional discrimination”). To show intentional discrimination, a plaintiff must establish that a defendant acted with “deliberate indifference.” Updike, 870 F.3d at 950. Deliberate indifference requires both (1) “knowledge that a harm to a federally protected right is substantially likely,” and (2) “a failure to act upon that likelihood.” Id. at 950-51 (simplified) (quoting Duvall, 260 F.3d at 1139). “When the plaintiff has alerted the public entity to his need for accommodation (or where the need for accommodation is obvious, or required by statute or regulation), the public entity is on notice that an accommodation is required, and the plaintiff has satisfied the first element of the deliberate indifference test.” Id. at 951. After a public entity is on notice that an accommodation is required, failure to investigate what accommodation might be reasonable may constitute deliberate indifference. Id. at 954. (“A denial of a request without investigation is sufficient to survive summary judgment on the question of deliberate indifference”).

“[D]eliberate indifference does not occur where a duty to act may simply have been overlooked” or where an event could be “attributable to bureaucratic slippage that constitutes negligence rather than deliberate action or inaction.” Duvall, 260 F.3d at 1139. “Rather, in order to meet the second element of the deliberate indifference test, a failure to act must be a result of conduct that is more than negligent, and involves an element of deliberateness.” Id.

B. ADA Claim

Plaintiff alleges that the County denied Derby medical care, social interactions, and programming when, (1) Hecht failed to furlough Derby to a treatment program pursuant to Judge Grant's order of February 15, 2017; (2) CCJ staff ignored Derby's missed meals from March 1021, 2017; and (3) CCJ staff placed Derby in housing that cut him off from jail programming, social interactions, and “other opportunities afforded to general population [AICs].” Resp. County Mot. 44-50. The County argues that Plaintiff's ADA and Rehabilitation Act claim should be dismissed because Plaintiff fails to show that Derby was disabled within the meaning of the ADA at the time of the alleged ADA violations, and Derby was never denied medical or mental health care or any jail programs because of his alleged disability. This Court finds that the record contains sufficient evidence of Derby's qualifying disability, but that Plaintiff fails to demonstrate that any County employee denied Derby medical care or jail programs because of his disability. The County is therefore entitled to summary judgment on Plaintiff's ADA claim.

1. Qualifying disability

County Defendants do not dispute that Derby has schizophrenia or that schizophrenia is a qualifying disability under the ADA. See 42 U.S.C. § 12102(1) (defining “disability” as “(a) a physical or mental impairment that substantially limits one or more major life activities of such individual; (b) a record of such impairment; or (c) being regarded as having such an impairment”); see also Douris v. City of Henderson, 222CV00371CDSEJY, 2023 WL 4421409, at *8 (D. Nev. July 10, 2023) (finding that “schizophrenia . . . constitutes a disability . . . under the ADA”); Moore v. City of Berkeley, 14-CV-00669-CRB, 2018 WL 1456628, at *3 (N.D. Cal. Mar. 23, 2018), aff'd, 801 Fed.Appx. 480 (9th Cir. 2020) (finding that the decedent was a “qualified individual with a disability-namely, schizophrenia”). Rather, the County argues that Plaintiff fails to make clear, “at what point in time, if any, . . . Derby suffered from a qualifying disability.” Id.

The record shows, however, that Derby was diagnosed with schizophrenia multiple times in 2017 and suffered a history of schizophrenia prior to 2017. See Nweze Decl. Ex. 15 (July 2017 diagnosis of schizophrenia); Resp. County Mot. Ex. 6 at 4 (noting that 2017 diagnosis of schizophrenia “goes back many years”); id. Ex. 30 at 14 (April 2017 notes referring to Derby's

history of schizophrenia). That evidence is sufficient to show that Derby suffered schizophrenia in 2016 and 2017 and therefore suffered a qualifying disability under the ADA during the time of the County's alleged ADA violations.

2. Transfer to treatment program

There is no evidence that Hecht failed to transfer Derby to a treatment program based on Derby's disability. On March 9, 2017, Hecht visited Derby at CCJ to help him complete paperwork so that Derby could be transferred to a treatment program. Hecht Decl. ¶7. Although Hecht was not Derby's parole officer, he visited Derby as a favor to Derby's family. Id. When Hecht checked in with Captain Weaver about Derby's transfer, Weaver told Hecht that Derby had decided “he did not want to go” to the treatment program, and no further steps were taken. Resp. County Mot. Ex. 14 at 17. Plaintiff does not dispute that Derby told Weaver he was declining the treatment program or that Weaver conveyed that to Hecht.

Instead, Plaintiff argues that discriminatory animus can be inferred because Judge Grant “ordered [Derby] to be transferred.” Resp. County Mot. 45. However, Judge Grant never ordered CCJ to transfer Derby to a treatment program. See Hoover Decl. Ex. 7. Rather, Judge Grant's Judgement and Probation Order of February 15, 2017, stated that Derby was eligible for furlough to a treatment program. Id. Plaintiff argues that Hecht was “tasked with facilitating [Judge Grant's] order,” Resp. County Mot. 47, but Hecht was not Derby's parole officer in March 2017 and was therefore not “tasked” with carrying out any “order” from Judge Grant regarding Derby's care. Plaintiff claims that Hecht “walked away from the unfinished job knowing [Derby] was otherwise helpless,” id. (emphasis in original), but any suggestion of callousness overlooks the fact that Hecht visited Derby at CCJ as a favor to Derby's family and to help Derby fill out the necessary paperwork to be transferred to a program. Hecht Decl. ¶¶7, 10. Plaintiff takes issue with Hecht's apparent failure to question Weaver or to seek clarification from Derby as to his actual wishes, but Hecht's alleged oversight fails to show that he discontinued his efforts to get Derby transferred by reason of Derby's disability. See Simmons, 609 F.3d at 1022 (finding no evidence that the jail's failure to transfer detainee to another facility “was because of or motivated by [the detainee]'s depression” and therefore granting the county defendant summary judgment on ADA claim).

3. Missed meals

Plaintiff alleges that the County “withheld medical and mental health care” from Derby regarding his missed meals, but there is no evidence that CCJ denied Derby medical care or delayed their response due to Derby's disability. Plaintiff acknowledges that a Wellpath counselor checked on Derby on March 23 and 27, 2017, and there is no dispute that someone at CCJ notified the medical team of Derby's missed meals-despite the fact that the jail did not consider Derby's missed meals as a hunger strike under CCJ policy. See Resp. County Mot. 4748 (acknowledging that corrections officers “took notice” of Derby's missed meals); Pixley Decl. Ex. 18 at 1 (CCJ hunger strike policy). Even viewing the evidence in the light most favorable to Plaintiff, no reasonable jury could find that anyone at CCJ denied or delayed Derby medical or mental health care for his missed meals-let alone that they did so based on discriminatory animus. See Simmons, 609 F.3d at 1022 (noting that there was “no evidence that [the accommodation] was ever sought or denied, let alone that such denial was because of or motivated by [the detainee's disability]”). If anything, the evidence demonstrates that CCJ took the initiative to have medical staff visit Derby and did not wait for Derby to miss meals for 72 hours or to announce a hunger strike before notifying Wellpath of Derby's possible medical needs.

4. Disciplinary segregation

Last, Plaintiff fails to show that CCJ “punished [Derby] because of his disability.” Resp. County Mot. 50 (emphasis in original). Plaintiff claims that the jail kept Derby in “extreme isolation” for much of his time at CCJ because of his disability, but the evidence shows that Derby's housing assignments were determined based on his record of rule violations and considerations of safety and security. Pixley Decl. ¶¶4-5. Plaintiff argues that the County was “aware that modern jail standards demand that mentally ill individuals be treated differently, and yet . . . refused to develop any modern policy or protocol to that effect[.]” Resp. County Mot. 52. Plaintiff's expert, Dr. Hames-Garcia, stated that mentally ill AICs “have more difficulty complying with . . . verbal directives . . . and rules,” and suggested that jails with significant numbers of mentally ill AICs should keep them out of the general population and establish separate policies for them. Id. at 52-53. Assuming that is true, it fails to show that anyone at CCJ who was involved in Derby's discipline or housing assignments intentionally placed him in restricted housing or denied him access to jail programming or other AICs because of his disability.

Without any evidence of discriminatory intent, Plaintiff's ADA claims boil down to allegations that Hecht failed to transfer Derby to a treatment program, that CCJ failed to respond to Derby's missed meals, and that CCJ placed Derby in restricted housing that isolated Derby and denied him full access to CCJ programming. Those allegations are not clearly supported by the evidence and in any event do not state claim under the ADA. The County is therefore entitled to summary judgment on Plaintiff's ADA claim. See Simmons, 609 F.3d at 1022 (affirming summary judgment for county defendant on ADA claim brought by family of pretrial detainee who committed suicide in jail and noting that “[t]he ADA prohibits discrimination because of disability, not inadequate treatment for disability”) (citation omitted); see also Arreola v. California Dep't of Corr. & Rehab., 16-CV-03133-JD, 2017 WL 1196802, at *2 (N.D. Cal. Mar. 31, 2017) (dismissing ADA claim brought by AIC plaintiff and noting that, “while these allegations might point to indifference or negligence, they do not show [the plaintiff] was discriminated against, or denied benefits, by reason of a disability”).

IV. Negligence Claims

A. Standards

To establish negligence under Oregon common law, a plaintiff must prove that the defendant's conduct “created a foreseeable and unreasonable risk of legally cognizable harm to the plaintiff and that the conduct in fact caused that kind of harm to the plaintiff.” Sloan ex rel. Estate of Sloan v. Providence Health Sys.-Oregon, 364 Or. 635, 642 (2019); Stewart v. Jefferson Plywood Co., 255 Or 603, 609 (1970) (under Oregon law, an actor is negligent if he “ought reasonably to foresee that he will expose another to an unreasonable risk of harm”).

The concept of foreseeability “refers to the generalized risks of the type of incidents and injuries that occurred, rather than predictability of the actual sequence of events.” Fazzolari v. Portland Sch. Dist. No. 1J, 303 Or. 1, 22 (1987). Oregon law does not require a plaintiff “to precisely forecast a specific harm to a particular person.” Piazza v. Kellim, 360 Or. 58, 80 (2016). “[A] harm may be legally unforeseeable if the defendant's conduct constituted a ‘mere facilitation' of [a] third person's intervening intentional criminal act.” Miller v. Tabor W. Inv. Co., 223 Or.App. 700, 711 (1993) (citing Buchler v. Oregon Corr. Div., 316 Or. 499, 511-12 (1993)). The question of foreseeability is typically submitted to a jury. McPherson v. State ex re. Dep't of Corr., 210 Or.App. 602, 614 (2007).

The plaintiff in a negligence action “must also prove an actual causal link between the defendant's conduct and the plaintiff's harm-that is, the plaintiff must prove ‘cause in fact.'” Towe v. Sacagawea, Inc., 357 Or. 74, 86 (2015). Under Oregon law, “[w]hen the element of causation involves a complex medical question, as a matter of law, no rational jury can find that a plaintiff has established causation unless the plaintiff has presented expert testimony that there is a reasonable medical probability that the alleged negligence caused the plaintiff's injuries.” Baughman v. Pina, 200 Or.App. 15, 18 (2005) (citing Uris v. Compensation Department, 247 Or. 420, 424 (1967) (“where injuries complained of are of such character as to require skilled and professional persons to determine the cause and extent thereof, the question is one of science and must necessarily be determined by testimony of skilled, professional persons”) (internal quotation marks omitted)). As the Oregon Court of Appeals explained, this rule “prevents jurors from speculating about causation in cases where that determination requires expertise beyond the knowledge and expertise of an ordinary lay person.” Baughman, 200 Or.App. at 18 (citing Howerton v. Pfaff, 246 Or. 341, 347-48 (1967)).

B. Derby's Criminal Assault of Janice Derby and Confinement at OSH

Plaintiff alleges that the parties' negligence “created foreseeable risks to [] Derby that were realized in [] Derby's . . . attack on Janice Derby [and his] Derby's significant loss of freedom and liberty due to his attack[.]” See FAC ¶115 (negligence claims against the County); id. ¶118 (negligence claims against Wellpath); id. ¶124 (negligence claims against Hecht); and id. ¶127 (negligence claims against Ronan). As a threshold matter, the parties dispute whether these specific actions were foreseeable as a matter of law. See County Mot. 48-49; Wellpath Mot. 17.⁶ Although “foreseeability is generally a fact question for the jury and thus not a likely candidate for summary judgment, . . . in an ‘extreme case' a court can decide that the risk to the plaintiff caused by the defendant's conduct was unforeseeable as a matter of law.” Miller, 223 Or.App. at 711. This Court finds, as a matter of law, that Derby's attack on his mother and subsequent confinement at OSH were not foreseeable risks that were created by Defendants' alleged acts of negligence.

6 This issue is not dispositive of any of Plaintiff's specific claims of negligence because Plaintiff alleges that Defendants' negligence also created the foreseeable risk that Derby would suffer a deterioration of his mental and physical health and attempt suicide. See FAC ¶¶115, 118, 124, 127. Defendants do not assert that those specific harms to Derby were unforeseeable as a matter of law. Accordingly, this Court construes Defendants' motions as seeking summary judgment on specific allegations of damages with respect to each negligence claim.

All relevant Oregon cases turn on whether “the defendant could reasonably foresee that the third party . . . would engage in the kind of criminal conduct that ultimately harmed the plaintiff.” Washa v. Or. Dep't of Corrections, 159 Or.App. 207, 213 (1999) (emphasis added). Here, Plaintiff turns that issue on its head, and asks this Court to determine whether it is foreseeable that defendants' alleged negligence would cause Derby to engage in criminal conduct towards a third party, thereby resulting in further harm to Derby in the form of emotional distress and hospitalization at OSH. No Oregon court has held that a plaintiff's own criminal conduct can be the foreseeable consequence of a defendant's actions, and this Court declines to do so here.

Regardless, even if this Court applies general principles of foreseeability pertaining to the criminal acts of third parties, the attack on Plaintiff's mother was not foreseeable as a matter of law. Miller is instructive. There, the plaintiff brought a negligence action against an apartment complex after he was criminally assaulted by someone who also lived at the complex, a man named Homer Woods. 223 Or.App. at 702. The landlord knew that Woods was mentally ill, had been convicted for assault, and had been confined at OSH, but “there [was] nothing in the record to indicate that defendants knew that Woods was prone to violence as a result of his mental illness.” Id. at 714. Although Wood's “irrational” behavior toward the landlord “may have indicated that Wood's mental condition was deteriorating,” it did not suggest that “defendants should have anticipated that that behavior would escalate into physical violence[.]” Id. at 715. Even evidence that “suggest[ed] a general aggressiveness on the part of Woods . . . [did] not suggest an inclination to commit a violent assault against [the] plaintiff.” Id. The court explained that, “in the absence of more specific knowledge of the risk of the type of harm that befell plaintiff,” the landlord's failure to warn or protect the plaintiff “constituted ‘mere facilitation' of Wood's intervening criminal conduct.” Id. at 716 (quoting Buchler, 316 Or. at 511 (noting that “mere ‘facilitation' of an unintended adverse result, where intervening intentional criminality of another person is the harm-producing force, does not cause the harm so as to support liability for it”)); see also Chapman v. Mayfield, 358 Or. 196, 222 (2015) (holding that overserving alcohol to a visibly intoxicated patron did not create the foreseeable risk that the patron would subsequently engage in an off-premise assault by firing a concealed weapon at a nearby building and injuring its occupants); McAlpine v. Multnomah Cnty., 31 Or.App. 136, 143-44 (1994) (plaintiff's injuries sustained at the hands of parolee with arrest warrant were not the foreseeable result of the defendant's failure to arrest the parolee; although defendants knew of parolee's history of violent crimes, neither the warrant nor his underlying offense showed that parolee was prone to violence against members of the general public).

Here, there is no evidence that Derby was prone to violence before he attacked his mother. There is no indication that Derby had threatened or attacked anyone at CCJ, was ever regarded as a danger to others, or had “an[y] inclination to commit a violent assault against [Janice Derby].” Miller, 223 Or.App. at 715 . Moreover, there was no indication that failing to provide Derby with adequate treatment for his mental health, or failing to provide him with adequate care in custody, would result in Derby committing crimes of violence upon his release. Although Derby may have suffered harm from the conditions of confinement at CCJ, no reasonable jury could find that the County's acts or omissions created the foreseeable risk that Derby would criminally assault his mother after he was released from CCJ. See Buchler, 316 Or. At 511 (noting that, “[w]hile it is generally foreseeable that criminals may commit crimes . . . that level of foreseeability does not make the criminal's act the legal responsibility of everyone who may have contributed in some way to the criminal opportunity”). Defendants are therefore entitled to summary judgment on Plaintiff's negligence claims to the extent that they allege that Defendants' negligence caused Derby to attack his mother, and on any claims for damages stemming from the assault.⁷

7 In the tort action brought by Derby's parents, the jury found the County liable for Derby's attack of his mother, and the County appealed that verdict. See Resp. County Mot. Ex. 36. Although the state court found that there was a factual issue as to whether the attack was the foreseeable result of the County's negligence, this Court is not bound by that non-final ruling, and Plaintiff presents no other argument or authority on which this Court could find that the conditions of confinement at CCJ created the foreseeable risk that Derby would criminally assault his mother.

C. Negligence Allegations Against the County and Hecht

Plaintiff alleges that the County, through its policies and the actions of its employees, was negligent in eight ways: (1) providing Derby with a razor blade that he used to attempt suicide; (2) placing Derby in housing that deprived him of social interactions and other privileges; (3) failing to provide Derby reasonable medical and mental health treatment during his missed meals and after his suicide attempt; (4) failing to properly investigate Derby's claim of sexual assault; (5) failing to adequately train officers on interacting with mentally ill AICs; (6) failing to implement policies for the humane treatment of mentally ill AICs; (7) failing to transfer Derby to a treatment facility pursuant to Judge Grant's order; and (8) communicating to Derby that if he were to “screw up” in the treatment program, he would be sent back to CCJ. FAC ¶114(a)-(f), (i)-(j).⁸

8 In its reply and pursuant to LR-56-1(b), County Defendants object to evidence that Plaintiff cites in her response on the basis of relevance, authenticity, and prejudice. County Reply 5-7. However, this Court's analysis does not refer to or rely on any of the contested evidence. Thus, this Court finds it unnecessary to address the County Defendants' objections.

Plaintiff has failed to cite sufficient evidence of negligence regarding Derby's missed meals, attempted suicide, and Hecht's comment to Derby. However, a reasonable jury could find that the County created the foreseeable risk that Derby's health would deteriorate and that he would attempt suicide when jail staff gave Derby a razor blade, placed him in restricted housing, conducted a limited investigation of his sexual assault claim, declined to transfer him to a treatment program, and by failing to adequately train staff or establish adequate policies for the treatment of mentally ill AICs. Accordingly, summary judgment should be granted in part and denied in part on the negligence claims against the County.

1. Razor blade

There is no dispute that Kyles dispensed a razor blade to Derby for shaving on May 9, 2017, or that Derby used the razor to attempt suicide later that day. Kyles Decl. ¶1; Resp. County Mot. Ex. 3 at 15, ECF 81-3. The record also shows that Derby received extensive treatment for suicidal ideation the prior month at Good Samaritan hospital, Unity, and CCMH. Nweze Decl. Ex. 5; id. Ex. 6; id. Ex. 9. Thus, when Kyles gave Derby the razor blade, it was not unforeseeable that Derby would use it to commit suicide. See Grainger v. Ensley, 20-36021, 2022 WL 1439132, at *2 (9th Cir. May 6, 2022) (finding decedent's suicide foreseeable because “suicide is the sort of risk that could be expected to result from an inadequately performed welfare check on a person showing signs of suicidal ideation”); see also See Est. of Manstrom-Greening v. Lane Cnty., 845 Fed.Appx. 555, 557 (9th Cir. 2021) (finding that the “generalized risk of harm resulting from . . . leaving a loaded gun on a desk is that someone else living in the home could harm themselves . . . with the gun”).

The County argues that Kyles was not aware of any reason to deny Derby's request for a razor blade because Derby was not on suicide watch or the “no razor” list, but a reasonable jury could find that the County conducted a deficient suicide assessment on Derby when he was booked in CCJ on April 16, 2017. Given the care that Derby received for his suicidal ideation from multiple providers just three weeks before his attempted suicide, see Nweze Decl. Ex. 9, a reasonable jury could find that CCJ should have been aware of Derby's suicidality and should have placed him on suicide watch and the “no razor” list. The County is therefore not entitled to summary judgment on this claim.

2. Restricted housing

The County disputes that CCJ “isolated” Derby by placing him in housing that restricted his privileges and ability to leave his cell. County Mot. 41-2. However, Plaintiff's corrections expert, Phillip Stanley, testified that Derby spent over 5,000 hours in his cell at CCJ in 2016 out of a total of 5,400 hours that he was confined at the jail. Resp. County Mot. Ex. 5 at 53. Dr. Soroush Mohandessi, a forensic psychiatrist, found that Derby “was subjected to severe isolation and . . . [o]ver 93 percent of his jail period was in solitary confinement,” id. Ex. 6 at 5, and other experts discussed the deleterious effects of isolation on an AIC's mental health and overall wellbeing. See id. at 31-34; id. Ex. 7 at 6-7. Dr. Mohandessi stated that, “someone with schizophrenia being in prolonged isolation is at a very high risk of becoming symptomatic and having another break from reality, becoming psychotic.” Id. Ex. 6 at 5; id. Ex. 7 at 7 (Dr. Hames-Garcia testimony that “prolonged isolation . . . without treatment” can lead to “serious worsening of existing mental health conditions” as well as “paranoia [and] . . . self-harm”). Based on that evidence, a reasonable jury could find that, “the generalized risk of harm” from placing Derby, a mentally ill AIC, in isolated housing for extensive periods of time, was that Derby would suffer a significant deterioration in his mental and physical health, even to the point of his attempted suicide. See Est. of Manstrom-Greening, 845 Fed.Appx. at 557 (emphasizing that “foreseeability refers to generalized risks of the type of incidents and injuries that occurred” and finding that the decedent's suicide was “within the realm of foreseeable risks resulting from [his father]'s act of leaving his loaded gun readily accessible and unsecured”).

3. Missed meals

Plaintiff alleges that the County provided Derby with inadequate medical and mental health care by failing to respond to his missed meals from March 10 to March 21, 2017. FAC ¶114(c). However, there is no dispute that a CCJ corrections officer notified a Wellpath about Derby's missed meals or that a Wellpath mental health counselor visited Derby regarding his missed meals on March 23 and 27, 2017. Taylor Decl. Ex. 2 at 3. Moreover, there is no evidence that the timing or substance of the counselor's response caused Derby harm. Plaintiff alleges that the County's response to Derby's missed meals caused his decline in health and attempted suicide, but she fails to explain her theory of causation and cites no evidence showing any causal link between the County's response and the harms that she alleges. The County is therefore entitled to summary judgment on this claim.

4. Suicide attempt

Plaintiff also fails to explain her allegation that the County “failed to provide [] Derby reasonable medical and/or mental health treatment . . . after his suicide attempt.” FAC ¶114(c). There is no dispute that the County called emergency services after Derby's attempted suicide or that Derby was immediately taken to the hospital accompanied by a CCJ corrections officer. See Nweze Decl. Ex. 12 at 7-9. Plaintiff fails to explain what care the County allegedly denied Derby after his attempted suicide or how it caused him further harm. The County is therefore entitled to summary judgment concerning its response to Derby's suicide attempt.

5. Sexual assault investigation

The County argues that CCJ conducted a reasonable investigation into Derby's report of sexual assault and that investigators found insufficient evidence of a sexual assault after Derby told an investigator that he was not sure that the sexual assault happened. See Pixley Decl. ¶6. However, the jail knew that Derby was a mentally ill AIC, and Derby provided specific information regarding a possible assault and as to who may have hurt him. Also, the Prison Rape Elimination Act (“PREA”), 34 U.S.C. §§ 30301-30309, requires jails to investigation claims of sexual assault, and Congress found that “[AIC]s with mental illness are at an increased risk of sexual victimization” when it passed PREA. Id. § 30301(3). Moreover, Congress enacted PREA to “establish a zero-tolerance standard for the incidence of prison rape[.]” Id. § 30302(1). Thus, a reasonable jury could find that CCJ should have done more to investigate Derby's conflicting reports of being sexually assaulted, and that Derby's mental and physical decline, even to the point of his attempted suicide, was the foreseeable result of CCJ's decision to stop their investigation after Olsen's conversation with Derby. See id. § 30301(14)(D) (noting that the “failure to State officials to adopt policies and procedures to reduce the incidence of prison rape . . . increases the rate of . . . depression, suicide, and the exacerbation of existing mental illnesses”). The County is not entitled to summary judgment on this claim.

6. Training and policies

The County argues that CCJ staff received adequate training on mental illness, but a reasonable jury could find otherwise based on Plaintiff's corrections experts' extensive testimony that CCJ corrections officers received only four hours of training on mental illness at the police academy and no additional training as employees at CCJ. Resp. County Mot. Ex. 5 at 32-33; id. Ex. 7 at 8-9. Dr. Hames-Garcia testified that if corrections officers had been properly trained, they would have recognized the behaviors of mentally ill AICs as symptoms of mental illness, and not as rule infractions. Id. at 8. Plaintiff's experts also testified that CCJ policies should have required that mentally ill AICs receive treatment for their symptoms of mental illness rather than being placing in restricted housing. Id. at 9. Given that evidence, a reasonable juror could find that the County's training and policies on mental illness were inadequate and that the deficiencies created the foreseeable risk that Derby, a mentally ill AIC, would suffer significant decline to the point of his attempted suicide.

7. Transfer to treatment program

The record also supports Plaintiff's claim that CCJ negligently failed to transfer Derby to a substance treatment program on March 9, 2017, and that the failure to transfer created the foreseeable risk of Derby's decline and attempted suicide. There is no dispute that Derby suffered a long history of substance abuse or that he generally needed, wanted, and would have benefitted from a treatment program. Resp. County Mot. Ex. 14 at 16-17. Thus, when Hecht discontinued his efforts to have Derby transferred to a treatment program on March 9, a reasonable juror could find that it created the foreseeable risk that Derby would suffer a decline in his mental and physical health and attempt suicide. Although Derby told Weaver that he did not wish to be transferred and Weaver conveyed that to Hecht, no one took steps to clarify what Derby truly wished to do or whether he had the capacity to decide. See id. at 17. Given Derby's mental illness, a jury could find that a reasonable officer in Hecht's situation should have inquired further and completed the transfer process, despite Derby's earlier comment to Weaver.

8. Hecht's comment to Derby

Hecht concedes that he mistakenly told Derby that if he were transferred to a substance treatment program and did not successfully complete the program, he would be returned to CCJ to finish the balance of his sentence. Hecht Decl. ¶7. Plaintiff argues that Hecht's misunderstanding was unreasonable and caused Derby's deterioration and attempted suicide, but Hecht explained that it was “common operating procedure” for Columbia County Circuit Court to require AICs to successfully complete a treatment program before suspending their time in jail, id. ¶6, and Judge Grant's hand-written notes in her order indicate that she was departing from standard practice. See Hoover Decl. Ex. 7, ECF 74-7. Even if Hecht acted unreasonably in making his erroneous remark to Derby, it is not clear what harm Derby alleged suffered. Plaintiff contends that Hecht's comment “prompt[ed] Derby to go on a hunger strike,” Resp. County Mot. 63, but she cites no evidence to support her claim, and the record does not show that Hecht's mistaken comment contributed to Derby's mental or physical health decline or his attempted suicide. The County is entitled to summary judgment on this claim.

C. Negligence Allegations Against Wellpath and Ronan

Plaintiff alleges that Wellpath and Ronan (collectively, “Wellpath”) failed to provide Derby with reasonable care when they, (1) and “failed to make reasonable efforts to persuade . . . Derby to take his medication” and “failed to have qualified mental health professionals on staff . . . who could counsel [AIC]s about the dangers of not taking medications”; (2) “failed to implement policies for transferring [AIC]s to mental health facilities who are experiencing mental health crises”; and (3) “failed to provide . . . Derby reasonable medical and/or mental health treatment during [his] hunger strike and after his suicide attempt.” FAC ¶¶117, 126. This Court finds that there is insufficient evidence for a reasonable juror to conclude that Wellpath's response to Derby's medication refusals, attempted suicide, and missed meals caused Derby any injury including a decline in his mental or physical health or attempted suicide.

1. Discontinued medications

The parties agree that Ronan discontinued Derby's prescriptions for Clonidine and Sertraline on February 24, 2017, after Derby had refused both medications for four days. Taylor Decl. Ex. 2 at 2, 10. Plaintiff's medical expert, Renee Dahring,⁹ testified that Ronan should have tried to persuade Derby to take the medications and should have inquired into his reasons for refusing the medications, but she did not say that Derby suffered harm after Ronan discontinued his medication, let alone that Ronan's actions caused Derby to suffer a mental or physical deterioration that was so severe as to cause him to attempt suicide. Resp. County Mot. Ex. 22 at 32. In fact, Dahring stated the following in her deposition: “I want[] to be clear, . . . I'm not a causation expert.” Resp. Wellpath Mot. Ex. 2 at 38. Even assuming that Ronan's response was below the standard of care and that she should have checked in with Derby before discontinuing his medications, Plaintiff cites no evidence that Ronan could have convinced Derby to take his medications or that her failure to try caused Derby's mental or physical deterioration. The record does not show that Derby's mental health needs had been effectively addressed by Clonidine or Sertraline, or that his failure to take them or Ronan's discontinuation of those medications caused him any harm, including a deterioration of his mental or physical health.

9 In its reply, Wellpath objects to the deposition of Renee Dahring under Fed.R.Evid. 403. Wellpath Reply 2. However, Dahring testified about the standard of care for medical and mental health services for incarcerated patients, which is relevant to Plaintiff's negligence claims against Wellpath and Ronan. See Resp. Wellpath Mot. Ex. 1 (Dahring's deposition); see Estate of Sloan, 364 Or. at 642 (stating elements of negligence claim under Oregon law). Wellpath also objects to Plaintiff's failure to provide specific citations to Dahring's testimony as required by LR-56-1(a), but this Court finds that Plaintiff's response includes sufficiently specific citations to Dahring's testimony. See Resp. Wellpath Mot. 17 (citing Ex. 1 at 58-62); see id. at 24 (citing Ex. 1 at 30).

Furthermore, Plaintiff cites no expert testimony that Ronan discontinuing Clonidine and Sertraline caused Derby to attempt suicide. In Teater v. Pfizer, Inc., 3:05-CV-00604-HU, 2013 WL 2455995 (D. Or. June 6, 2013), the plaintiff brought a products liability claim against a pharmaceutical company alleging that “‘Neurontin caused [her] to attempt to commit suicide.'” Id. at *6. In turn, this Court noted that “plaintiff overlooks the fact that the Baughman rule[, 200 Or.App. at 18,] prevents ‘jurors from speculating about causation in cases where that determination requires medical expertise beyond the knowledge and experience of an ordinary lay person,'” and therefore granted summary judgment to the defendant on the plaintiff's claim. Id. Here, expert testimony is also required to show that Ronan's acts or omissions caused Derby to attempt suicide, but Plaintiff cites no such evidence. See Uris, 247 Or. at 424 (“where injuries complained of are of such character as to require skilled and professional persons to determine the cause and extent thereof, the question is one of science and must necessarily be determined by testimony of skilled, professional persons”); Watson v. Meltzer, 247 Or.App. 558, 565 (2011) (“in order to prevail on in a negligence action, a plaintiff must establish that but for the negligence of the defendant, the plaintiff would not have suffered the harm that is the subject of the claim”) (simplified). Without expert testimony, no reasonable jury could find that Ronan discontinuing Clonidine and Sertraline caused Derby to attempt suicide.

Plaintiff also contends that Wellpath should have had “qualified mental health professionals on staff” to counsel Derby about the dangers of not taking medications, FAC ¶117, but she cites no evidence that Wellpath's alleged staffing deficiencies fell below the standard of care or contributed in any way to Derby's deterioration or suicide attempt. See id. Because Plaintiff cites no evidence and no expert testimony linking Ronan's acts or omissions to Derby's mental and physical decline or his attempted suicide, Wellpath is entitled to summary judgment on this claim.

2. Failure to transfer for mental health treatment

Plaintiff argues that Wellpath staff negligently failed to transfer Derby to a mental health facility after Derby attempted suicide on May 7, 2017, Resp. Wellpath Mot. 17, but she fails to explain how Wellpath's conduct failed to meet applicable standards of care or was otherwise unreasonable. Wellpath records indicate that Derby received emergency medical care after his attempted suicide on May 7, 2017, and when Derby returned to the CCJ later that same day, he was immediately placed on suicide watch and checked regularly by Wellpath staff in subsequent days. See Taylor Reply Decl. Ex. 3 at 2-5, ECF 95-3. Plaintiff argues that Derby was only transferred from CCJ to an outside facility after his lawyer filed a petition in court on October 3, 2017, Resp. Wellpath Mot. 29 (citing Ex. 5, ECF 86-6),¹⁰ but the record shows that Columbia County Circuit Court ordered Derby to OSH for mental health treatment on May 16, 2017, Nweze Decl. Ex. 15 at 1, and Plaintiff fails to explain what harm Derby suffered from not being transferred to a treatment program before May 16. In her response, Plaintiff does not elaborate on her failure-to-transport claim and cites no evidence that Wellpath's decision to treat Derby at CCJ and not transfer him to a mental health treatment program from May 7 to May 16, 2017, caused Derby to suffer further decline. Accordingly, Wellpath is entitled to summary judgment on this claim.

10 Wellpath Defendants argue that the lawyer's petition has not been properly authenticated and contains hearsay. Wellpath Reply 2. This Court finds that this evidence fails to create an issue of fact and therefore declines to address Wellpath's objections.

3. Missed meals

Plaintiff argues that Wellpath failed to provide Derby with adequate care in response to his missed meals. Plaintiff's medical expert, Dr. Mohandessi,¹¹ testified that medical personnel “could have and should have taken action” in response to Derby missing twenty-four out of thirty-six meals from March 10 to March 23, 2017. Resp. County Mot. Ex. 6 at 29. However, a Wellpath counselor met with Derby on March 23 and 27, 2017, regarding his missed meals, Taylor Decl. Ex. 2 at 33, and there is no evidence that Derby suffered harm from the timing of the counselor's response. Renee Dahring testified that, when Derby missed his meals, he “should have been seen by someone who had the ability to make a diagnosis and recommend a . . . prescription or something else,” Resp. County Mot. Ex. 1 at 48, but she did not testify that Derby suffered harm from being visited by a Wellpath counselor who apparently lacked those credentials, and she specifically declined to testify as to any physical or mental harm that may have been caused by Derby's missed meals. See id. Ex. 2 at 44. In her deposition, Dahring was asked the effects of Derby's missed meals and responded, “I was not asked to . . . determine causation for . . . [what] occurred after [Derby] left the jail.” Id. Dahring noted that insufficient medical and mental health care for a mentally ill AIC may generally cause the risk that the AIC's conditions worsen, see id., but she did not testify that Derby's specific injuries-i.e., his significant decline and attempted suicide-were caused by any failure in care from Ronan or the Wellpath counselor who saw him on March 23 and 27, 2017. See Teater, 2013 WL 2455995, at *6 (acknowledging generalized evidence that the medication at issue could cause suicidality but emphasizing that, “[i]n this case, [the] [p]laintiff has not presented any expert testimony indicating that there is a reasonable medical probability that Defendants' actions caused her [attempted suicide]”) (emphasis in original). Wellpath defendants are therefore entitled to summary judgment on this claim.

11 Wellpath objects to Dr. Mohandessi's testimony under Fed.R.Evid. 403, but Dr. Mohandessi addressed standards of medical and mental health care for incarcerated patients, which is relevant to Plaintiff's negligence claims against Wellpath and Ronan. See Estate of Sloan, 364 Or. at 642 (stating the elements of a negligence claim under Oregon law).

4. Suicide attempt

Plaintiff fails to explain her allegation that the Wellpath “failed to provide [] Derby reasonable medical and/or mental health treatment . . . after his suicide attempt.” FAC ¶117(f). The record includes detailed accounts of the jail and Wellpath's response to Derby's suicide attempt and makes it clear that a Wellpath nurse, outside medics, and corrections officers responded immediately with emergency services to stabilize Derby, assess him, and transport him to Emanuel Hospital where he received stitches. Taylor Reply Decl. Ex. 3 at 21-22, ECF 953; Resp. County Mot. Ex. 34 at 1-11, ECF 81-32; Nweze Decl. Ex. 12 at 7-9. Plaintiff does not dispute that evidence and fails to explain what was deficient about Wellpath's response to Derby's attempted suicide or how Derby allegedly suffered harm or further decline because of Wellpath's acts or omissions. Wellpath is therefore entitled to summary judgment concerning its response to Derby's suicide attempt.

In sum, based on the record before this Court, no reasonable jury could find that Wellpath Defendants failed to provide Derby reasonable medical or mental health care or that Wellpath's alleged negligence caused Derby's mental and physical health to deteriorate or his attempted suicide. Wellpath Defendants are therefore entitled to summary judgment on Plaintiff's negligence claims.

RECOMMENDATION

For the reasons discussed above, including Plaintiff's stipulation to the dismissal of claims, County Defendants' motion for summary judgment, ECF 68, should be GRANTED as to the following claims and Defendants:

(1) § 1983 deliberate indifference claim against Columbia County and Dickerson (Claim 1, Counts 1 and 2)

(2) § 1983 deliberate indifference claim against Hoover (Claim 1, Count 4)

(3) § 1983 deliberate indifference claim against Hecht (Claim 1, Count 5)

(4) ADA claim against the County (Claim 2)

(5) § 1983 false arrest claim against the County and Hoover (Claim 3)

(6) negligence claim against the County regarding (a) Derby's 2016 and 2017 incarcerations for probation violations; (b) Derby's missed meals; (c) Derby's suicide attempt; and (d) Hecht's erroneous comments about the conditions of a potential furlough (Claim 4)

(7) negligence claim against Hoover (Claim 6)

(8) negligence claim against Hecht regarding his erroneous comment to Derby about the conditions of a potential furlough (Claim 7)

(8) Plaintiff's claims for damages resulting from his criminal assault on his mother and his resulting confinement at OSH.

Each of those specific claims, and Plaintiff's specific claims for damages resulting from the criminal assault, should be dismissed with prejudice.

County Defendants' motion for summary judgment should be DENIED as to Plaintiff's negligence claim against the County regarding: (a) Derby receiving a razor blade; (b) Derby's restricted housing; (c) Derby's report of sexual assault, (d) CCJ's training and policies for mentally ill AICs, and (e) Derby's transfer to a mental health treatment program (Claim 4).

Wellpath Defendants' motion for summary judgment, ECF 76, should be GRANTED in full, and Plaintiff's claims against Wellpath Defendants should be dismissed with prejudice.

SCHEDULING ORDER

The Findings and Recommendation will be referred to Judge Hernandez. Objections, if any, are due fourteen (14) days from service of the Findings and Recommendation. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.

A party's failure to timely file objections to any of these findings will be considered a waiver of that party's right to de novo consideration of the factual issues addressed herein and will constitute a waiver of the party's right to review of the findings of fact in any order or judgment entered by a district judge. These Findings and Recommendation are not immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of judgment.