FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANDREW ABRAHAM, on behalf of 

himself, and for all others similarly 

situated,

Plaintiff-Appellant,

v.

CORIZON HEALTH, INC., FKA Prison 

Health Services, Inc.,

Defendant-Appellee.

No. 19-36077

D.C. No.

3:16-cv-01877-

JR

ORDER 

CERTIFYING 

QUESTION TO 

OREGON 

SUPREME 

COURT

Appeal from the United States District Court

for the District of Oregon

Michael W. Mosman, District Judge, Presiding

Argued and Submitted December 7, 2020

Seattle, Washington

Filed January 28, 2021

Before: Eric D. Miller and Daniel A. Bress, Circuit Judges, 

and Stanley A. Bastian,* District Judge.

Order by Judge Miller

* The Honorable Stanley A. Bastian, Chief United States District 

Judge for the Eastern District of Washington, sitting by designation.
2 ABRAHAM V. CORIZON HEALTH

SUMMARY**

Certification of Question to Oregon Supreme Court

The panel certified the following question to the Oregon 

Supreme Court:

Is a private contractor providing healthcare 

services at a county jail a “place of public 

accommodation” within the meaning of 

Oregon Revised Statutes § 659A.400 and 

subject to liability under § 659A.142?

COUNSEL

Carl Post (argued) and John Burgess, Law Offices of Daniel 

J. Snyder, Portland, Oregon, for Plaintiff-Appellant.

Sara Kobak (argued) and Anne M. Talcott, Schwabe, 

Williamson & Wyatt P.C., Portland, Oregon, for DefendantAppellee.

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
ABRAHAM V. CORIZON HEALTH 3

ORDER

MILLER, Circuit Judge:

We respectfully certify the following question to the 

Oregon Supreme Court under Oregon Revised Statutes 

§ 28.200:

Is a private contractor providing healthcare 

services at a county jail a “place of public 

accommodation” within the meaning of 

Oregon Revised Statutes § 659A.400 and 

subject to liability under § 659A.142?

The certified question of law is determinative of this appeal, 

and there appears to be no controlling precedent in the 

decisions of the Oregon Supreme Court or the Oregon Court 

of Appeals. Or. Rev. Stat. § 28.200. We proceed to explain 

“all facts relevant to the question[] certified,” “the nature of 

the controversy in which the question[] arose,” and the 

“question[] of law to be answered.” Id. § 28.210.

I

Because the district court decided this case on a motion 

to dismiss, we assume the truth of the facts as set out in the 

complaint. Wojciechowski v. Kohlberg Ventures, LLC, 923 

F.3d 685, 688 n.2 (9th Cir. 2019). 

On October 23, 2015, Andrew Abraham was arrested 

and taken to the Clackamas County Jail. Abraham is deaf 

and communicates through American Sign Language (ASL). 

He is also diabetic. While in jail, Abraham was deemed a 

suicide risk and placed for several days “under the care and 

supervision” of Corizon Health, Inc., a private healthcare 

company that contracts to provide medical services to the 
4 ABRAHAM V. CORIZON HEALTH

inmates of the Clackamas County Jail. According to 

Abraham, these medical services were provided at the jail.

Corizon did not provide Abraham an ASL interpreter. 

Instead, it used “paper sheets to communicat[e]” with 

Abraham. Abraham alleges that Corizon’s failure to provide 

an ASL interpreter resulted in a series of 

miscommunications that caused him to be incorrectly placed 

on suicide watch and denied meals and insulin. 

Abraham sued Corizon on behalf of a putative class of 

deaf inmates under the Oregon Public Accommodation Act, 

which makes it unlawful “for any place of public 

accommodation” to discriminate against “a customer or 

patron” because he or she “is an individual with a disability.” 

Or. Rev. Stat. § 659A.142(4). He also brought various 

federal claims, which are no longer at issue here. The district 

court dismissed Abraham’s claim under section 659A.142 

because the complaint sought only equitable relief, and as 

Abraham was no longer incarcerated, he lacked standing to 

seek such relief.

Abraham moved to amend his complaint to include a 

demand for compensatory damages. The district court 

denied leave to amend as futile because it concluded that 

section 659A.142 “does not apply to [Corizon]’s provision 

of medical services in the Jail.” Specifically, the district

court held that Corizon is not a “place of public 

accommodation” under Oregon Revised Statutes 

§ 659A.400(1)(a).

Abraham appealed. In an unpublished memorandum 

disposition, we affirmed the dismissal of the federal claims 

and vacated and remanded as to Abraham’s section 

659A.142 claim. Abraham v. Corizon Health, Inc., 775 

F. App’x 301, 303 (9th Cir. 2019). We noted that “Oregon 
ABRAHAM V. CORIZON HEALTH 5

courts have yet to address whether a private contractor like 

Corizon constitutes a ‘place of public accommodation,’” and 

we instructed the district court to “consider its jurisdiction 

over Abraham’s § 659A.142 claim” anew in light of the 

dismissal of the federal claims. Id. 

On remand, the district court determined that it had 

diversity jurisdiction over Abraham’s section 659A.142 

claim. See 28 U.S.C. § 1332. Abraham again moved to 

amend his complaint to allege compensatory damages. He 

also asked the district court to certify the following question 

to the Oregon Supreme Court: “Whether private entities that 

provide services at a local correction facility are excluded 

from the definition of ‘a place of public accommodation’ and 

therefore exempt from Or. Rev. Stat. § 659A.142?”

The district court referred both motions to a magistrate 

judge. The magistrate judge recommended resolving the 

dispositive question of Oregon law. The magistrate judge 

reasoned that “Oregon’s public accommodation laws apply 

solely to private entities that are open to the public or provide 

services/accommodations to the public,” and “the statutory 

definition of ‘place of public accommodation’ expressly 

excludes places furnishing services to involuntarily detained 

individuals (i.e., federal and local correctional facilities, 

state hospitals, and youth correction facilities), as well as 

places that are in their ‘nature distinctly private.’” 

Accordingly, the magistrate judge recommended that the 

motion to certify be denied and the motion to amend the 

complaint be denied as futile. The district court adopted the 

findings and recommendation in full and denied the motions.

II

Under Oregon law, “[i]t is an unlawful practice for any 

place of public accommodation, resort or amusement as 
6 ABRAHAM V. CORIZON HEALTH

defined in ORS 659A.400, or any person acting on behalf of 

such place, to make any distinction, discrimination or 

restriction because a customer or patron is an individual with 

a disability.” Or. Rev. Stat. § 659A.142(4). The question of 

statutory interpretation on which this case turns is whether 

Corizon is a “place of public accommodation.” Section

659A.400 provides the following definition:

(1) A place of public accommodation, subject 

to the exclusions in subsection (2) of this 

section, means:

(a) Any place or service offering to the 

public accommodations, advantages, 

facilities or privileges whether in the 

nature of goods, services, lodgings, 

amusements, transportation or otherwise.

(b) Any place that is open to the public 

and owned or maintained by a public 

body, as defined in ORS 174.109, 

regardless of whether the place is 

commercial in nature.

(c) Any service to the public that is 

provided by a public body, as defined in 

ORS 174.109, regardless of whether the 

service is commercial in nature.

(2) A place of public accommodation does 

not include:

(a) A Department of Corrections 

institution as defined in ORS 421.005.
ABRAHAM V. CORIZON HEALTH 7

(b) A state hospital as defined in ORS 

162.135.

(c) A youth correction facility as defined 

in ORS 420.005.

(d) A local correction facility or lockup as 

defined in ORS 169.005.

(e) An institution, bona fide club or place 

of accommodation that is in its nature 

distinctly private.

Were we to answer the question presented, we would be 

required to predict how the Oregon Supreme Court would 

decide the issue. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 

78–80 (1938); Norcia v. Samsung Telecomms. Am., LLC, 

845 F.3d 1279, 1284 (9th Cir. 2017). In this case, the parties 

make competing arguments based on the statute’s text and 

history. Abraham contends that Corizon’s treatment of 

inmates at Clackamas County Jail is a “service” offered “to 

the public” under section 659A.400(1)(a). He explains that 

Corizon lacks discretion as to whom its services are provided 

and must treat all inmates incarcerated at the jail. Abraham 

further argues that Corizon, as a private contractor, may not 

invoke the exemption for “local correction facilit[ies].” 

Instead, he suggests that the legislature’s specific exemption 

of state-controlled entities in section 659A.400(2)(d) creates 

a negative implication that private providers of services at a 

jail are encompassed by the basic definition in section 

659A.400(1)(a).

Corizon, by contrast, argues that it does not offer its 

services “to the public,” or is otherwise exempt from liability 

under sections 659A.400(2)(d) and (e). Corizon explains that 
8 ABRAHAM V. CORIZON HEALTH

it serves only jail inmates, who must be arrested and 

incarcerated to be eligible for treatment, and thus does not 

offer its services to the public at large. Corizon also points 

to legislative history that, in its view, reflects an intent to 

exclude all services provided at correctional facilities from 

the statute’s reach. Finally, Corizon argues that it cannot be 

liable to Abraham because inmates who receive services at a 

jail are not “customer[s] or patron[s]” under section 

659A.142(4).

Our assessment of those arguments is informed by 

decisions of the Oregon courts construing the term “place of 

public accommodation” in a variety of contexts. See, e.g., 

Schwenk v. Boy Scouts of Am., 551 P.2d 465, 465–70 (Or. 

1976) (Boy Scouts); Lahmann v. Grand Aerie of Fraternal 

Ord. of Eagles, 121 P.3d 671, 673 (Or. Ct. App. 2005) 

(national fraternal organization); Lloyd Lions Club of 

Portland v. International Ass’n of Lions Clubs, 724 P.2d 

887, 888–91 (Or. Ct. App. 1986) (local club); Parsons v. 

Henry, 672 P.2d 717, 721 (Or. Ct. App. 1983) (custom 

builder); Graham v. Kold Kist Beverage Ice, Inc., 607 P.2d 

759, 762 (Or. Ct. App. 1979) (wholesaler). 

Most recently, the Oregon Court of Appeals has 

articulated a two-part test to determine whether a private 

entity is a “place of public accommodation” under section 

659A.400(1)(a), asking first whether “the organization is a 

business or commercial enterprise” and, second, whether “its 

membership policies are so unselective that the organization 

can fairly be said to offer its services to the public.” 

Lahmann, 121 P.3d at 673 (internal quotation marks and 

citation omitted). But Oregon courts have yet to address 

whether a private contractor like Corizon constitutes a “place 

of public accommodation.” And although Corizon seems 

clearly to be “a business or commercial enterprise,” we are 
ABRAHAM V. CORIZON HEALTH 9

uncertain whether Oregon courts would consider it “to offer 

its services to the public.” Id. Corizon, a private healthcare 

provider that contracts with an exempt state-controlled 

entity, is unlike the businesses and membership-based 

organizations previously considered in the Oregon case law. 

Nor does any case resolve whether Corizon is exempt under 

section 659A.400(2)(d), or whether section 659A.142(4)’s 

use of the terms “customer or patron” excludes plaintiffs like 

Abraham.

In sum, there is no controlling precedent of the Oregon 

Supreme Court or the Oregon Court of Appeals as to whether 

Corizon is a “place of public accommodation” under section 

659A.400 and subject to liability under section 659A.142. 

See Or. Rev. Stat. § 28.200; Western Helicopter Servs., Inc. 

v. Rogerson Aircraft Corp., 811 P.2d 627, 631–32 (Or. 

1991). 

III

Abraham has asked us to certify the question to the 

Oregon Supreme Court rather than decide it ourselves. The 

grant of diversity jurisdiction in section 1332 authorizes 

federal courts to decide questions of state law—even 

questions of state law that lack obvious answers. Thus, “[w]e 

invoke the certification process only after careful 

consideration and do not do so lightly.” Murray, 924 F.3d at 

1072 (quoting Kremen v. Cohen, 325 F.3d 1035, 1037 (9th 

Cir. 2003)). But our recent decision in Murray reminds us to 

evaluate certification based on such factors as “(1) whether 

the question presents important public policy ramifications 

yet unresolved by the state court; (2) whether the issue is 

new, substantial, and of broad application; (3) the state 

court’s caseload; and (4) the spirit of comity and 

federalism.” Id. (internal quotation marks and citation 

omitted).
10 ABRAHAM V. CORIZON HEALTH

The first two factors are particularly relevant here, and 

they both counsel in favor of certification. Most importantly, 

the certified question is one of first impression that 

implicates two key policy interests of the State of Oregon: 

the State’s sovereign interest in the enforcement of its 

antidiscrimination laws and its proprietary interest in its 

relationships with service providers at correctional facilities. 

In addition, the question is likely to recur and may also apply 

to other private contractors providing services at correctional 

facilities and other statutorily exempt state facilities. See Or. 

Rev. Stat. § 659A.400(2)(a)–(d). 

We further conclude that the criteria for certification set 

forth in Oregon Revised Statutes § 28.200 are satisfied. See 

generally Western Helicopter, 811 P.2d at 630 (“(1) The 

certification must come from a designated court; (2) the 

question must be one of law; (3) the applicable law must be 

Oregon law; (4) the question must be one that ‘may be 

determinative of the cause;’ and (5) it must appear to the 

certifying court that there is no controlling precedent in the 

decisions of this court or the Oregon Court of Appeals.” 

(quoting Or. Rev. Stat. § 28.200)).

For these reasons, we respectfully ask the Oregon 

Supreme Court to exercise its discretionary authority to 

accept and decide the question set forth above. “Our 

phrasing of the question[] should not restrict the [c]ourt’s 

consideration of the issues involved,” and “[w]e 

acknowledge that the court may reformulate the relevant 

state law questions as it perceives them to be, in light of the 

contentions of the parties.” Raynor v. United of Omaha Life 

Ins. Co., 858 F.3d 1268, 1273 (9th Cir. 2017) (internal 

quotation marks, alterations, and citations omitted). If the 

court decides that the question presented is inappropriate for 

certification, or if it declines the certification for any other 
ABRAHAM V. CORIZON HEALTH 11

reason, we request that it so state, and we will resolve the 

question according to our best understanding of Oregon law. 

Abraham’s motion to certify a question to the Oregon 

Supreme Court is therefore GRANTED. The clerk of this 

court shall file a certified copy of this order with the Oregon 

Supreme Court under Oregon Revised Statutes § 28.215. 

This appeal is withdrawn from submission and will be 

submitted following receipt of the Oregon Supreme Court’s 

opinion on the certified question or notification that it 

declines to answer the certified question. The clerk is 

directed to administratively close this docket pending further 

order. The panel shall retain jurisdiction over further 

proceedings in this court. The parties shall notify the clerk 

of this court within one week after the Oregon Supreme 

Court accepts or rejects certification. In the event the Oregon 

Supreme Court grants certification, the parties shall notify 

the clerk within one week after the court renders its opinion.

IT IS SO ORDERED.

/s/ Eric D. Miller 

Eric D. Miller, 

United States Circuit Judge, 

Presiding