IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

PORTLAND DIVISION 

DARLENE HERNANDEZ, Conservator for 

Jose Angel Rafaesl Hernandez II, 

Plaintiff, 

vs. 

MARION COUNTY, a political subdivision 

of the State of Oregon; MARION COUNTY 

SHERIFF'S OFFICE, as a department of 

Marion County; MARION COUNTY JAIL, 

a correctional facility controlled by the 

Marion County Sheriffs Department; JASON 

MEYERS, in his capacity as Marion County 

Sheriff; SHEILA LORANCE, in her capacity 

as administrator of Marion County correctional 

institutions; CURTIS HENCKEL, an 

individual; and DOES 1-3, 

Defendants. 

AIKEN, District Judge: 

Case No. 3:15-cv-01070-AA 

OPINION AND ORDER 

This civil rights action concerns an attempted suicide. Plaintiff Darlene Hernandez, as 

conservator for Jose Angel Rafael Hernandez II ("Hernandez"), alleges that individual and 

agency defendants acted with deliberate indifference and negligence while Hernandez was in 

Page 1 - OPINION AND ORDER 
custody at the Marion County Jail ("MCJ"), causing Hernandez's serious injury by attempted 

suicide. Plaintiff alleges violations of the Eighth Amendment to the United States Constitution 

and the Oregon common law of negligence. Before me is defendants' motion for summary 

judgment. As explained in greater detail below, defendants' motion is granted in part and denied 

in part. 

BACKGROUND 

The following undisputed facts are those relevant and necessary to resolving this dispute. 

In 2012, Hernandez pleaded guilty to Delivery of a Controlled Substance to a Minor (Heroin) 

and Sexual Abuse in the Second Degree and was sentenced to 60 months' probation under the 

supervision of Marion County Community Conections ("MCCC"). At his first monthly 

probation meeting on January 15, 2013, on a form provided to Hernandez each time he would 

visit his probation officer, Hernandez indicated that he had not "had thoughts or made plans to 

kill [himself]." He indicated the same at his meeting with probation on March 20, 2013. 

Sometime in April of 2013, Hernandez was admitted to mental health and drug addiction 

treatment in Vancouver, WA. On April 11, 2013, plaintiff contacted Deputy Burton, 

Hernandez's probation officer, and told her that she had admitted her son to mental health and 

addiction treatment because he was "suicidal." Darlene Hernandez Dep 23:6-8 (doc. 50 at 9). 

Beginning May 9, 2013, and through June 17, 2013, Hernandez's Chemical Dependency 

Professional ("CDP") reported no discussion or mention of any suicidal thoughts or plans in the 

course of their treatment; she made this notation a total of fifteen times over nearly 40 days. 

During that same period, Hernandez continued to attend his monthly meetings with probation. 

At his May 14, 2013 meeting, Hernandez told Deputy Groom, a probation officer filling in for 

Deputy Burton, that he had been admitted to treatment in April because he was suicidal. 

Page 2 - OPINION AND ORDER 
However, he also noted that he was no longer suicidal. He indicated the same at his June 13, 

2013 meeting with Deputy Burton as well as at his next month's meeting on July 11, 2013. 

On June 30, 2013, police visited Hernandez's residence in response to a call from his 

then-girlfriend (and victim in his underlying sexual abuse conviction), E.R., who told police that 

Hernandez was in the process of hanging himself. Police determined that Hernandez was not at 

risk and that the call was a "false alann." Higgins Deel. 'if 6. For that reason, the encounter was 

not reported to Deputy Burton or anyone at MCCC. 

Hernandez was admitted to MCJ on August 14, 2013 after being arrested for violating the 

terms of his probation. He was housed at MCJ for three full days, from the afternoon of August 

14 to the afternoon of August 17, and had only three conscious encounters with MCJ staff in that 

time. His first encounter was his intake screening at 3:47 p.m. on August 14 by Jail Nurse 

Pamela Lash. Ms. Lash identified numerous "open, weeping sores" on Hernandez's body and 

placed him on "medical watch." Stewart Deel. 'if'if 6-7. 

Hernandez's second encounter with MCJ staff occurred later that same day at 6:33 p.m. 

Hernandez was interviewed by Deputy Russell Brazeal and asked if he had ever tried to hurt or 

kill himself. Hernandez told Deputy Brazeal he had recently attempted suicide in April by using 

"pills." Brazeal Deel. 'if 3. Deputy Brazeal asked Hernandez if he was cmTently contemplating 

suicide; Hernandez said that he was not. 

Hernandez's final encounter with MCJ staff occuned the next day at approximately 10:30 

a.m. He was examined by Dr. Aaron Vitells. He told Dr. Vitells that he picked at his skin 

lesions because of his anxiety and had been picking at them for several weeks. Dr. Vitells noted 

that Hernandez appeared "significantly anxious" and was showing symptoms of heroin 

withdrawal. Stewart Deel. 'if 9. Dr. Vitells prescribed Hernandez medication both for his anxiety 

Page 3 - OPINION AND ORDER 
and his open sores. Immediately after the examination, Dr. Vitells reported his observations to 

Dr. Lisa M. Stewatt, mental health specialist at MCJ, who had planned to follow up with 

Hernandez. 

Although Dr. Stewart observed Hernandez's intake screening with Ms. Lash, she would 

never end up speaking with Hernandez. Her first attempt to do so occurred later on August 15, 

2013, sometime after Hernandez's examination by Dr. Vitells. Hernandez was asleep at the 

time, and Dr. Stewart did not wake him. Hernandez was asleep again the next day when Dr. 

Stewait visited him during her early afternoon rounds. Again she did not wake him. Dr. 

Stewait "believed that plaintiff being asleep in the afternoon after taking his medication was a 

good sign that the medication for his anxiety was working." Stewart Deel. if 11. 

The following day, sheriffs deputies observed Hernandez sleeping again, this time "with 

his back to the door." Montoya Deel. Ex. 18. That observation occurred at 12:35 p.m. on 

August 17, 2013, when deputies made their security/welfare check of the medical "contact 

isolation" unit. Id. Almost 25 minutes later, after over 48 hours in his cell without any contact 

with anyone at MCJ, Hernandez was found hanging from the air vent in his cell. In the 24 hours 

leading up to his suicide attempt, Hernandez could be heard sobbing through the walls of his cell. 

Benton Dep. 5:22-6:11 (doc. 56 at 56-57). 

LEGAL STANDARD 

Summary judgment is proper where the "movant shows that there is no genuine dispute 

as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 

56(a). A grant of partial summary judgment is appropriate where genuine disputes of material 

fact exist for only some claims. See Circle K Stores, Inc. v. Zillman, 827 F. Supp. 2d 1251, 1256 

(D. Or. 2011) (citing Fed. R. Civ. P. 56(a) and noting that the standard for partial summary 

Page 4 - OPINION AND ORDER 
judgment is the same as the standard for summary judgment). An issue of material fact is 

considered genuine "if the evidence is such that a reasonable jury could return a verdict for the 

nomnoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When 

considering a motion for summary judgment, courts must draw all reasonable inferences in favor 

of the nomnoving party. Id. at 255. 

DISCUSSION 

I. Summaiy Judgment on Plaintiffa' 42 US.C. § 1983 Claims is Granted in Part and 

Denied in Part. 

The Ninth Circuit Court of Appeals "has noted that the first question in any § 1983 action 

is whether the section is the appropriate basis for a remedy." Ketchum v. Alameda Cty., 811 F.2d 

1243, 1245 (9th Cir. 1987) (footnote omitted). A successful claim under§ 1983 "requires two 

essential elements: (1) the conduct that harms the plaintiff must be committed under color of 

state law (i.e., state action), and (2) the conduct must deprive the plaintiff of a constitutional 

right." Id. 

Claims under § 1983 may allege unconstitutional acts by either individual persons or 

local govermnents--0r, as in this case, both. In her first claim, plaintiff alleges that defendants 

Marion County, the Marion County Sheriffs Office ("MCSO"), MCJ, Sheriff Meyers, and 

Commander Lorance violated Hernandez's Eighth Amendment rights in their management and 

operation of MCJ. In her second claim, plaintiff alleges violation of Hernandez's Eighth 

Amendment rights by Sergeant Beneke! and unnamed conections officers as a result of their 

deficient care of Hernandez while he was in their custody. 

As to claim one, defendants aver that plaintiffs have not shown the existence of a 

deficient policy, practice, custom, or procedure capable of giving rise to liability under§ 1983. 

Responding to plaintiffs second claim, defendants maintain that plaintiffs have failed to 

Page 5 - OPINION AND ORDER 
establish that Sergeant Henckel was deliberately indifferent to the risk that Hernandez would 

hmm himself. Moreover, and regardless of the outcome of that inquiry, defendants also assert 

that Sergeant Henckel is protected by qualified immunity. 

A. Defendants' 1Vfotionfor Summwy Judgment on Plaintiff's§ I 983 Claims Against 

Marion County is Denied. 

Plaintiff avers four theories of Marion County's liability under § 1983: that it was the 

policy or custom of Marion County (1) "to operate [MCJ] without adequate mental health 

services", (2) "to operate [MCJ] overcapacity," (3) to operate MCJ in a manner that is out of 

compliance with State and County standards, and ( 4) to operate MCJ "in a manner that exhibited 

deliberate indifference to [Hernandez's] Constitutional rights[.]" Comp!.~~ 31-34. 

Local governments 1 

may by liable under § 1983 when "the action that is alleged to be 

unconstitutional implements or executes a policy statement, ordinance, regulation, or decision 

1 In their Motion for Summary Judgment, defendants assert as a preliminary matter that 

"neither the [Marion County] Sheriffs Office nor the [Marion County] Jail is a 'public body' 

that can be sued" under either§ 1983 or the OTCA. Def. Mot. Summ. J. 23-24. Defendants are 

conect, although the analysis is more complicated than defendants' briefing would suggest. 

Under Federal Rule of Civil Procedure 17(b ), the capacity "to sue or be sued" is 

dete1mined "for a corporation, by the law under which it was organized[.]" Thus, Oregon state 

law controls whether an agency subdivision may be sued separately from the county of which it 

is a pmt. This Court has held that Oregon law does not authorize suits against a sheriffs office 

distinct from its own county. See Updike v. Clackamas Cty., 2015 WL 7722410, *4 (D. Or. Nov. 

30, 2015) ("[A] plaintiff may not separately sue Oregon entities such as the Clackamas County 

Sheriffs Office."). It has held the same with respect to county jails. See Thomas v. Oregon, 

2012 WL 1029139, *2 (D. Or. Jan. 30, 2012) ("The Multnomah County Inverness Jail is a 

co1Tectional facility belonging to and operated by Multnomah County, not a legal entity which 

may be separately sued under § 1983."); Sanders v. Dickerson, 2010 WL 3824077, *5 (D. Or. 

Aug. 13, 2010) ("[T]he Columbia County Jail is not a proper defendant, and [plaintiffs] 

allegations should be construed as asserted against Columbia County[.]"). 

In addition, "[w]hen a plaintiff brings a lawsuit against a government officer in his 

official capacity, a court treats the suit 'as a suit against the entity' that employs the officer." 

Updike, 2015 WL 7722410 at *3 (quoting Kentucky v. Graham, 473 U.S. 159, 166 (1985)). A 

court may "dismiss as redundant a defendant sued in his or her official capacity" when the entity 

the official represents is also patiy to the suit. Id. (citing Ctr. for Bio-Ethical Reform, Inc. v. L.A. 

Page 6 - OPINION AND ORDER 
officially adopted and promulgated by that body's officers." Monell v. Dep 't of Soc. Servs. of 

City of NJ~, 436 U.S. 658, 690 (1978). In her Response to Defendants' Motion for Summary 

Judgment, plaintiff fails to identify any evidence creating a genuine issue of material fact that 

defendants maintained an official policy with respect to any of her four theories of liability. 

Plaintiff therefore cannot succeed under the "policy" portion of Nfonell. 

But local governments may also "be sued for constitutional deprivations visited pursuant 

to gove1mnental 'custom' even though such a custom has not received formal approval through 

the body's official decisionmaking channels." Id at 690-91. Thus, plaintiffs claims may 

proceed if she can create a question of fact about the existence of an unofficial custom which led 

to a deprivation of Hernandez's constitutional rights. Plaintiff offers no evidence that it was 

Marion County's custom to operate MCJ overcapacity or out of compliance with state and local 

standards; defendants are correct that those theories are incapable of surviving their motion of 

summary judgment. However, plaintiff has provided sufficient evidence to create a genuine 

issue of material fact about whether it was the unofficial custom of Marion County to provide 

inadequate mental health services to inmates at risk of suicide. For that reason, plaintiffs§ 1983 

claim against Marion County will be allowed to proceed. 

Cty. Sheriff Dep 't, 533 F.3d 780, 799 (9th Cir. 2008)). Plaintiff sued Sheriff Myers and 

Commander Lorance in their official capacities only, and all claims against those defendants are 

also asserted against Marion County. 

Accordingly, the alleged actions or inactions of the MCSO, MCJ, Sheriff Myers in his 

official capacity, and Commander Lorance in her official capacity can only create liability for 

Marion County; despite their listing as distinct parties in this case, the foregoing defendants 

comprise only one legal entity for the purposes of § 1983 liability. Those defendants are 

dismissed with prejudice. 

Page 7 - OPINION AND ORDER 
1. 1\1CCC Deputies Are Not Policymakers Under the Monell Analysis, and 

Plaintiff Fails to Establish the Existence of an Official Policy. 

The Supreme Court in Monell extended § 1983 liability to local governments when 

government policymakers officially adopt "a policy statement, ordinance, regulation, or 

decision" that leads to a deprivation of an individual's federal constitutional rights. lvfonell, 436 

U.S. at 690. In a subsequent case, Pembaur v. City of Cincinnati, the Court gave extensive 

guidance about how such a policy may be "officially adopted" for the purposes of 1\1one/l: 

Municipal liability attaches only where the decisionmaker possesses final 

authority to establish municipal policy with respect to the action ordered. The 

fact that a pmiicular official--even a policymaking official-has discretion in the 

exercise of particular functions does not, without more, give rise to municipal 

liability based on an exercise of that discretion. The official must also be 

responsible for establishing final government policy respecting such activity 

before the municipality can be held liable. . . . [W]hether an official had final 

policymaking authority is a question of state law. 

475 U.S. 469, 481-83 (1986) (footnotes and citations omitted). 

Under Oregon state law, "each county sheriff has custody and control of all persons 

legally committed or confined in the county local co1Tectional facility of the county of the sheriff 

during the period of the commitment or confinement." Or. Rev. Stat. § 169.320(1). In addition, 

the sheriff may adopt ce1iain policies regulating the conditions of confinement "[u]nder the 

direction of the county court or board of county commissioners of the county" in which the jail is 

located. Id.; see also Or. Rev. Stat. § 169.220 (establishing the duties of the county court or 

board of county commissioners with respect to care of county prisoners). Thus, in Oregon, the 

county sheriff, the county comi, and the county commission have the "final authority to establish 

municipal policy with respect to" the custody and control of detainees. Pembaur, 475 U.S. at 

481. 

Page 8 - OPINION AND ORDER 
An official with final policymaking authority may delegate that authority to a 

subordinate. City of St. Louis v. Praprotnik, 485 U.S. 112, 130 (1988). Such a delegation may 

take the f01m of a general grant of authority to make final policy in a particular arena. 1vfcLean 

v. Pine Eagle Sch. Dist., No. 61, 194 F. Supp. 3d 1102, 1119 (D. Or. 2016). Alternatively, an 

official with final policymaking authority may transfo1m a decision by a subordinate into official 

policy if that policy is "expressly approved" and is "cast in the form of a policy statement." 

Praprotnik, 485 U.S. at 130. But either way, the delegation of authority must be express; neither 

"[s]imply going along with discretionary decisions made by one's subordinates" nor 

"fail[ing] to investigate the basis of a subordinate's discretionary decisions" amounts to a 

delegation of policymaking authority. Id. 

With respect to policy, each of plaintiffs four theories above is premised on plaintiffs 

belief that every employee of Marion County who interacted with Hernandez was a "final 

policymaker." Pl.'s Resp. Defs.' Mot. Summ. J. 3. Plaintiff reasons that because every deputy 

may initiate a suicide watch, every deputy is the final decisionmaker as to the suicide "policy" 

for each individual inmate. That reasoning is not in accord with Monell and subsequent case 

law. Oregon state law unambiguously identifies the final policymakers with respect to inmate 

care and custody. Accordingly, decisions by the sheriffs subordinates only become final 

policies for the purpose of Monell liability if a final policymaker delegated to those subordinates 

the authority to make policy for the County or if they were presented to the sheriff, the county 

court, or the county commission "in the form of a policy statement" and the relevant authority 

"expressly approve[ d]" them. See Praprotnik, 485 U.S. at 130. Plaintiff adduces no evidence 

that Sheriff Myers, the Marion County Circuit Court, or the Marion County Commission either 

broadly delegated to MCCC deputies the authority to make final policy or declared it the policy 

Page 9 - OPINION AND ORDER 
of Marion County to operate MCJ with inadequate mental health services, over capacity, out of 

compliance with state and local standards, or with deliberate indifference to inmates' 

constitutional rights. In fact, the policy statements cited in plaintiffs brief show Marion County 

took steps to avoid those outcomes at MCJ.2 Thus, plaintiff has failed to show the existence of a 

"policy" suppotting any one of her theories of Marion County's liability. 

2. Plaintiff Has Provided Sufficient Evidence ldentifoing a Custom of 

Providing Inadequate Mental Health Services or Inadequate Mental 

Health Training Which Placed Inmates at an Increased Risk of Suicide. 

If a plaintiff cannot establish the existence of a formal government policy, she may 

instead show a "longstanding practice or custom which constitutes the standard operating 

procedure of the local governmental entity." Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). 

A plaintiff must produce sufficient evidence showing that the custom or practice is "so 

'persistent and widespread' that it constitutes a 'permanent and well settled city policy.'" Id. 

(quoting Monell, 436 U.S. at 691). Indeed, "[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." Id; see also City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985) ("Proof 

of a single incident of unconstitutional activity is not sufficient to impose liability under 

Monell[.]"). 

Plaintiffs evidence is limited to Hernandez's experience during his three days of 

incarceration. Plaintiff has the difficult task of establishing the existence of a persistent and 

widespread custom based on an extremely natTOW set of circumstances. For that reason, plaintiff 

2 For example, it is Marion County's policy that all jail intake employees will "observe 

at1'estees for depressed and/or suicidal behavior, or the possibility of extreme situational stressors 

that warrant immediate intervention" and "Health Services Staff will always act on the side of 

caution and safety on behalf of the inmate in response to a perceived suicidal situation." Pl.' s 

Resp. Defs.' Mot. Summ. J. Ex. A at 1-2. 

Page 10 - OPINION AND ORDER 
has failed to establish that it was the custom of Marion County to operate MCJ either 

overcapacity or out of compliance with state and local standards. First, I am unable to identify 

any evidence at all concerning the allegations of overpopulation, even during the window of time 

when Hernandez was in MCJ custody. Additionally, while plaintiffs expert report shows that 

deputies at MCJ may have violated the spirit, if not the letter, of state c01Tections regulations, 

both the basis and conclusion of that report address solely the deputies' treatment of Hernandez. 

To give rise to Monell liability, a custom must be "of sufficient duration, frequency and 

consistency" that it can fairly be said to be the de fl1cto policy of the governmental body. 

Trevino, 99 F.3d at 918. Plaintiff has failed to establish a de facto policy with respect to her 

charges of overcrowding and noncompliance with state and local standards. 

However, there may be merit to plaintiffs allegations that MCJ was operated with 

inadequate mental health services or with deliberate indifference to Hernandez's constitutional 

right to be free from cruel and unusual punishment. While those two theories are pleaded 

separately, they amount to the same charge: that it was the custom of Marion County to provide 

poor mental health services to individuals at risk of suicide, in deliberate indifference to 

detainees' constitutional rights. As evidence of the inadequacy of MCJ staffs mental health 

response, plaintiff cites another expert report suggesting that a competent mental health response 

would have included increased interactions or interventions with Hernandez by MCJ staff and 

would not have included a prescription for the sleep-inducing anti-anxiety drug Ativan, 

generically known as lorazepam. Plaintiff also points to evidence that numerous employees at 

MCJ contributed to the inadequate mental health environment: jail nurse Pamela Lash for 

placing Hernandez on contact isolation, Deputy Russell Brazeal for failing to place Hernandez 

on suicide watch after he admitted a recent suicide attempt, Dr. Vitells for prescribing the antiPage 11 - OPINION AND ORDER 
anxiety drug lorazepam, Dr. Stewait for approving that prescription and failing to wake and 

interact with Hernandez for over 48 hours, and Deputies Strub and Dunbar for failing to wake 

and interact with Hernandez. 

While the involvement of multiple county employees bolsters the claim that plaintiffs 

treatment was consistent with the County's widespread practice or custom, plaintiffs evidence 

at this point is still confined to the treatment of one inmate over four days in 2013. That would 

generally be considered an insufficient duration to show a de facto policy. However, one 

particular piece of evidence sets this case apaii: Dr. Stewati, the mental health specialist at MCJ 

responsible for Hernandez's mental health treatment, is also employed as a county-wide expert 

on inmate mental health and "presents and/or facilitates at various trainings including [MCJ] 

employee in-service and local/regional Crisis Intervention Training." Stewart Deel. ~ 2. In 

addition, Dr. Stewart has been responsible for "developing course materials and instructing 

county correctional deputy candidates" on the subject of inmate mental health and suicide 

detection and prevention since November of2009. Id. ~ 3. The implications of this are apparent: 

the mental health professional responsible for approving Hernandez's placement in isolation; 

approving his treatment with psychotropic medication, despite his clear risk factors for 

depression and suicide; and leaving him without any human contact for over 48 hours is also 

responsible for training and advising deputies and other MCJ employees on how to address 

exactly this situation-and has been for nearly a decade. 

This evidence could permit a factfinder to infer that the county's treatment of Hernandez 

was unlawful under the "failure to train" approach endorsed by the Supreme Court in City of 

Canton, Ohio v. Harris, 489 U.S. 378 (1989). The facts of this case are relevantly similar to 

Page 12- OPINION AND ORDER 
those in City of Canton. The plaintiff in that case, Geraldine Harris, was a1rnsted by officers of 

the City of Canton Police Depatiment and brought to the police station in a patrol car. 

When she arrived at the station, Mrs. Han:is was found sitting on the floor of the 

wagon. She was asked if she needed medical attention, and responded with an 

incoherent remark. After she was brought inside the station for processing, Mrs. 

Han:is slumped to the floor on two occasions. Eventually, the police officers left 

Mrs. Harris lying on the floor to prevent her from falling again. No medical 

attention was ever summoned for Mrs. Harris. After about an hour, Mrs. HatTis 

was released from custody, and taken by an ambulance (provided by her family) 

to a nearby hospital. There, Mrs. Hanis was diagnosed as suffering from several 

emotional ailments; she was hospitalized for one week and received subsequent 

outpatient treatment for an additional year. 

Id at 381. Mrs. Han:is was successful in convincing a jury of her theory of municipal liability by 

showing that shift commanders for the City of Canton Police Department had the sole discretion 

to determine whether a detainee required medical attention and that they had been given no 

special training to help make such determinations. Id. Upon review, the Supreme Cami held 

that "there are limited circumstances in which an allegation of a 'failure to train' can be the basis 

for liability under § 1983." Id. at 387. When "a concededly valid policy is unconstitutionally 

applied by a municipal employee, the [municipality] is liable if the employee has not been 

adequately trained and the constitutional wrong has been caused by that failure to train." Id 

Here, while the evidence is somewhat weak, plaintiff has shown that it was within Dr. 

Vitells's and Dr. Stewart's sole discretion to detetmine what therapeutic approach would be most 

appropriate for Hernandez's symptoms of anxiety: no other official or employee at MCJ was 

required to approve their prescription oflorazepam. See Pl.'s Resp. Defs.' Mot. Summ. J. Ex. A 

at 3 ("Policy 3110 - Inmate Suicides ... Health Services or Mental Health Services staff will 

assess for appropriateness of medication treatment and refer to medical protocol (Standing 

Orders) as needed"). Additionally, plaintiff has introduced evidence that, despite the known 

risks and side effects of lorazepam and its contraindication for individuals with histories of 

Page 13 - OPINION AND ORDER 
depression, suicide, and narcotics abuse, both Drs. Vitells and Stewaii determined that it was an 

appropriate prescription for Hernandez. Dr. Stewart, by her own admission, has nearly a decade 

of experience training county employees on this very subject; if there was a training program in 

place to assist jail medical staff in determining when prescription treatment for anxiety is 

superseded by a detainee' s risk of suicide, it is reasonable to assume that Dr. Stewaii would have 

known about it. That she approved the prescription anyway and considered its sedative effects 

on Hernandez to be "a good sign" could suggest to a reasonable jury that no adequate training 

program existed. Stewaii Deel. '!['If 10-11. This evidence is thin, but it is more than the "mere 

scintilla" necessary to proceed to trial. Anderson, 477 U.S. at 252; cf United States v. Thomas, 

612 F.3d 1107, 1121 (9th Cir. 2010) (holding, in ruling on a proposed jury instruction, that 

evidence may qualify as "more than a mere scintilla" even if it is "weak, insufficient, [or] 

inconsistent") (internal quotation marks omitted). No more is needed for plaintiff to survive 

summary judgment on this claim. 

Plaintiff has created a sufficient question of material fact as to whether it was the custom 

or practice of Marion County to give MCJ medical staff the sole discretion to prescribe sleepinducing anti-anxiety medication without providing that staff with adequate training on the 

potential risks to inmates with demonstrated, recent histories of suicide, depression, and 

narcotics addiction. Whether framed as a custom under Monell or a failure to train under City of 

Canton, plaintiff has raised genuine issues of material fact as to Marion County's liability for 

Hernandez's injuries. Accordingly, summary judgment on that question is improper, and 

plaintiffs§ 1983 claim against the County is allowed to proceed to a jury. 

Page 14- OPINION AND ORDER 
3. Marion County, as an Entity, 1Way Have Been Deliberately Indifferent to 

the Potential of a Constitutional Violation Caused By Its Custom of 

Providing Inadequate ivfental Health Services. 

To be awarded relief under§ 1983 on a iV!onell theory of liability, "[i]t is not sufficient 

for a plaintiff to identify a custom or policy, attributable to the municipality, that caused his 

injury. A plaintiff must also demonstrate that the custom or policy was adhered to with 

'deliberate indifference to the constitutional rights of the jail's inhabitants."' Castro v. Cty. of 

L.A., 833 F.3d 1060, 1076 (9th Cir. 2016) (en bane) (quoting City of Canton, 489 U.S. at 392). 

To establish deliberate indifference, a plaintiff must show that the municipality was aware that 

its custom "would likely result in a constitutional violation" and that the practice "caused the 

violation in the sense that the municipality could have prevented the violation with an 

appropriate" practice. Jackson v. Barnes, 749 F.3d 755, 763 (9th Cir. 2014) (internal quotations 

omitted). 

In determining whether a defendant was aware of the risk of a constitutional violation, 

the standard for municipalities is always an objective inquiry "for the practical reason that 

government entities, unlike individuals, do not themselves have states of mind[.]" Compare 

Castro, 833 F.3d at 1076 with Farmer v. Brennan, 511 U.S. 825, 828 (1994) (stating that the 

standard for individuals is subjective: "[A] prison official cannot be found liable under the 

Eighth Amendment for denying an inmate humane conditions of confinement unless the official 

knows of and disregards an excessive risk to inmate health or safety[.]") (emphases provided). 

Under the objective standard of deliberate indifference, Supreme Court precedents have 

"permit[ ed] liability to be premised on obviousness or constructive notice[.]" Farmer, 511 U.S. 

at 841 (citing Canton, 489 U.S. at 396 (O'Connor, J., concurring)). "Obviousness" is most 

frequently defined by example. See Canton, 489 U.S. at 390 n.10 (explaining that city 

Page 15 - OPINION AND ORDER 
policymakers both know that their officers are required to arrest fleeing felons and know that 

they are aimed with firemms; "[t]hus, the need to train officers in the constitutional limitations 

on the use of deadly force can be said to be so obvious that failure to do so could properly be 

characterized as deliberate indifference to constitutional rights") (internal quotation marks and 

citations omitted). Constrnctive notice can be established by local government regulations and 

employee training materials. See Castro, 833 F.3d at 1077. 

Plaintiff is capable of meeting the objective standard for municipal deliberate 

indifference both through the obviousness and constructive notice methods. First, the expert 

report of Anthony Gagliardo states that a prescription of lorazepam is "contraindicated if the 

person has a history of depression or suicidal thoughts or behavior[ or] a history of drug or 

alcohol addiction[.]" Pl.'s Expert Witness Disclosure Ex.Cat 1 (emphasis omitted). Construing 

all factual inferences in plaintiffs favor, a factfinder could conclude that the county medical staff 

prescribing a given medication is aware of that medication's reconm1ended uses as well as its 

risks and side effects. Therefore, a jury could conclude that the risk that adhering to a custom of 

prescribing lorazepam to treat anxiety to an inmate with a history of suicide and heroin addiction 

might result in a violation of that inmate's constitutional rights was "so obvious" as to constitute 

deliberate indifference by defendants. 

Additionally, plaintiff raises evidence of official policies and training materials showing 

that Marion County policymakers could have had constructive notice that adhering to the custom 

of allowing MCJ staff to prescribe lorazepam to high-risk inmates and allowing them to sleep in 

isolation for days at a time cmTied a risk of a constitutional violation. First, the MCSO policy on 

inmate suicides requires deputies to "observe a11'estees for depressed and/or suicidal behavior, or 

the possibility of extreme situational stress ors that warrant immediate intervention." Pl.' s Resp. 

Page 16- OPINION AND ORDER 
Defs.' Mot. Summ. J. Ex. A at 1 (emphasis provided). County training materials describe the 

kinds of situational stressors that may be indications of increased risk of suicidal behavior, 

including: recent use of drugs, drug withdrawal, recent break-up of a relationship, depression, 

extreme anxiety, extreme sadness and crying, and excessive sleeping. Id. Ex. B at 4-7. The 

training materials end with an explanation of "Jail Suicide Litigation" and "Legal Standards of 

Care" describing the legal and constitutional bases of the foregoing requirements. A reasonable 

factfinder could conclude that these official materials are sufficient evidence that defendants had 

constructive notice that the failure to adequately identify and address an inmate's risk factorsincluding the drug withdrawal, crying, and excessive sleeping in evidence here--could lead to a 

violation of his constitutional rights. 

Plaintiff has also provided sufficient evidence from which a rational jury could find that, 

had an adequate mental health response been in place, Hernandez would not have suffered a 

constitutional injury. Plaintiffs expert report explains that a prescription of lorazepam is 

especially risky for patients with a history of suicide, depression, or narcotics abuse. If a jury 

credits that rep01i, it could conclude that, had Marion County not adhered to the custom of 

allowing MCJ medical staff carte blanche to prescribe anti-anxiety medication regardless of an 

inmate's medical history or instead provided adequate training about the risks of such medication 

and the risks of permitting 48 hours to pass without contact with the inmate, Hernandez would 

not have been placed at an increased risk of harm. For that reason, and those explained above, 

summary judgment on this claim is denied. 

B. Defendants' Motion/or SummmyJudgment on Plaintiff's§ 1983 Claims Against 

Sergeant Henckel and Does 1-3 is Granted 

Plaintiffs theory ofliability for Sergeant Henckel and three unnamed corrections officers 

is the same deliberate indifference theory explained above. However, plaintiffs claim against 

Page 17 - OPINION AND ORDER 
these individual officers is deficient in many respects. For that reason, defendants' Motion for 

Summary Judgment as to this claim is granted. 

The standard for deliberate indifference against an individual-as opposed to a 

municipality-is a subjective one. See Farmer, 511 U.S. at 837. Accordingly, 

a prison official cannot be found liable [for deliberate indifference] unless the 

official knows of and disregards an excessive risk to inmate health or safety; the 

official must both be aware of facts from which the inference could be drawn that 

a substantial risk of serious harm exists, and he must also draw the inference. 

Id. Plaintiff includes no allegations or suppo1iing evidence showing that Henckel had actual 

knowledge of an excessive risk to Hernandez's health and then actually disregarded that risk. 

Plaintiffs entire theory of liability as to Henckel is based on a theory of constructive notice-a 

theory that is inconsistent with the actual notice standard for individuals. See Pl.' s Resp. Defs.' 

Mot. Summ. J. 8 ("Notice to an agent, such as Dr. Stewart, who by policy must repo1i to 

[Sergeant] Henckel, constitutes notice to [Sergeant] Henckel."). Thus, plaintiffs claim against 

Beneke! fails to create an issue of material fact as to Beneke!' s knowledge of-and therefore his 

liability for-Hernandez. For that reason, defendants' motion as to Henckel and the unnamed 

corrections officers is granted.3 

II. Defendants' Aiotionfor Summwy Judgment on Plaintiff's OTCA Claim is Denied. 

Plaintiffs remaining claim is against all defendants for negligence under the Oregon Toti 

Claims Act. Because this final claim arises under the Oregon common law of negligence, I look 

to Oregon state law in determining whether plaintiff has created sufficient issues of material fact 

3 Qualified immunity is an affi1mative defense which can only be asserted by individuals. 

See Camarillo v. McCarthy, 998 F.2d 638, 639 (9th Cir. 1993). Because none of plaintiffs 

constitutional claims against individual officers is capable of surviving summary judgment, there 

is no further need to address qualified immunity. Saucier v. Katz, 533 U.S. 194, 201 (2001) ("If 

no constitutional right would have been violated were the allegations established, there is no 

necessity for fu1iher inquiries concerning qualified immunity."), overruled on other grounds by 

Pearson v. Callahan, 555 U.S. 223, 236 (2009). 

Page 18 - OPINION AND ORDER 
to survive summary judgment. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 76 (1938) (when 

adjudicating matters of state law, "the law to be applied in any case is the law of the state ... 

whether the law of the state shall be declared by its Legislature in a statute or by its highest court 

in a decision[.]"). 

In Oregon, to succeed on a claim of negligence, a complaint 

must allege facts from which a factfinder could determine (1) that defendant's 

conduct caused a foreseeable risk of harm[;] (2) that the risk is to an interest of a 

kind that the law protects against negligent invasion[;] (3) that defendant's 

conduct was unreasonable in light of the risk[;] ( 4) that the conduct was a cause of 

plaintiffs hann[;] and (5) that plaintiff was within the class of persons[,] and 

plaintiffs injury was within the general type of potential incidents and injuries[,] 

that made defendant's conduct negligent. 

Horton v. Or. Health & Sci. Univ., 373 P.3d 1158, 1161 (Or. Ct. App. 2016) (quoting Solberg v. 

Johnson, 760 P.2d 867, 870 (Or. 1988)). 

As ably summarized by defendants, plaintiffs general theory of negligence liability is 

that the standard for deliberate indifference is higher than the standard for negligence, therefore a 

defendant who has acted with deliberate indifference has ipso fl1cto acted with negligence. It is 

true that if an individual acts with deliberate indifference, she necessarily acts unreasonably. See 

Castro, 833 F.3d at 1071 n.4 ("[L]iability [for deliberate indifference] will only attach where the 

defendant's conduct is more egregious than mere negligence."). However, because she is 

seeking relief under state to1t law rather than federal constitutional law, plaintiff must point to 

sufficient evidence in the record to satisfy the elements of the common law tort of negligence to 

survive defendants' motion. 

A rational juror could conclude that prescribing sleep-inducing anti-anxiety medication to 

an inmate with a high risk of suicide and allowing him to remain in isolation for up to two full 

days created a foreseeable risk of harm. "Foreseeability is a prediction of the risk that an act or 

Page 19 - OPINION AND ORDER 
omission will result in a particular kind of harm[.]" Towe v. Sacagawea, Inc., 347 P.3d 766, 775 

(Or. Ct. App. 2015). As explained in detail above, ajuty could find that several Marion County 

employees were constructively aware-through the adoption of formal policies and training 

manuals--ofthe risk to Hernandez's health and life caused by inadequate mental health services, 

including leaving Hernandez alone for long periods of time. See part I.A.3, supra; Pl.'s Resp. 

Defs.' Mot. Summ. J. Ex. B at 1, 3 (PowerPoint presentation on jail suicides stating that 

"[h]istory of one or more suicide attempts indicates a person is a higher risk"; factors influencing 

suicidal behavior include "[i]solation" and the "[ d]ehumanizing aspects of being incarcerated"; 

and signs and symptoms of suicidal behavior include "[ e ]xcessive sleeping"). In addition, as 

explained by plaintiff's expe1t Anthony Gagliardo, a prescription of lorazepam "is 

contraindicated if the person has a history of depression or suicidal thoughts or behavior[ or] a 

history of drug or alcohol addiction." Pl.'s Expert Witness Disclosure Ex.Cat 1. Based on that 

evidence, a factfinder could dete1mine that a natural consequence of prescribing lorazepam to an 

inmate with plaintiffs risk factors and then pennitting that inmate to go two full days without 

any human contact is an increase of that imnate's risk of suicide. Accordingly, there is sufficient 

evidence for a finding of foreseeability, and plaintiff has satisfied the first essential element of 

her negligence claim. 

The risk created by defendants' conduct was to "an interest of a kind that the law protects 

against negligent invasion" because it created a risk to Hernandez's life and health. Horton, 373 

P.3d at 1161. Moreover, a jury might find that defendants' conduct was especially unreasonable 

in light of that risk because the potential harm to Hernandez was so great. It is well-established 

that defendants have a responsibility to ensure that inmates in their care and custody do not come 

to additional harm as a result of their incarceration-that is reinforced by defendants' own 

Page 20 - OPINION AND ORDER 
policies and training materials. See Pl.'s Resp. Defs.' Mot. Summ. J. Ex. A at 2 ("Health 

Services Staff will always act on the side of caution and safety on behalf of the inmate in 

response to a perceived suicidal situation.") (emphasis provided). Thus, jurors could conclude 

that defendants took an especially risky approach to Hernandez's mental health care: prescribing 

him medication contraindicated by his medical history and allowing him to sleep with no contact 

from MCJ staff for over 48 hours. 

Whether or not defendants' conduct was a "cause in fact" of Hernandez's injury is not 

clear, but at the summaiy judgment stage, I draw all factual inferences in plaintiffs favor and 

determine only whether defendants are entitled to relief as a matter of law. Anderson, 477 U.S. 

at 255. '"Cause in fact' has a well-defined legal meaning in Oregon: 'it generally requires 

evidence of a reasonable probability that, but for the defendant's negligence, the plaintiff would 

not have been harmed.'" Horton, 373 P.3d at 1163 (quoting Joshi v. Providence Health Sys., 

108 P.3d 1195, 1197 (Or. Ct. App. 2005)). When "the 'but for' allegation adequately link[s] the 

defendants' conduct to the [plaintiffs] harm[,] 'nothing more [is] necessary' ... 'to sufficiently 

allege causation."' Id Plaintiff avers that but for defendants' inadequate mental health 

treatment, Hernandez would not have been able to attempt suicide. There is sufficient evidence 

in the record--discussed in detail immediately above and throughout this opinion-with which a 

reasonable factfinder could support that chai·ge. Accordingly, sufficient issues of material fact 

remain as to whether defendants' conduct was a "cause in fact" of Hernandez's injuries, and 

summary judgment on that question is improper. 

Finally, to succeed on her claim of negligence, plaintiff must show that Hernandez was 

the kind of person, and his injury the kind of injury, that could foreseeably by ha1med by 

defendants' risky behavior. In other cases, this can be a complex inquiry; here it is not. As 

Page 21 - OPINION AND ORDER 
explained in the above analysis of the first foreseeability element, a reasonable factfinder could 

determine that the potential for harm resulting from defendants' conduct was foreseeable because 

defendants have adopted extensive policies and training to keep that very harm from happening. 

Those same materials explain exactly who is at risk (inmates) and exactly what they are at risk of 

(suicide). With that evidence in the record, a juror exercising her prudent judgment may find 

that defendants knew or should have known that engaging in the risky conduct of providing 

inadequate mental health services could result in an attempted suicide by an inmate. Thus, the 

final "proximate causation" element of the negligence standard may be satisfied by evidence 

already in the record. Accordingly, summary judgment on plaintiffs negligence claim would 

not be proper, and defendants' motion to that end must be denied. 

CONCLUSION 

Defendants' Motion for Summary Judgment (doc. 42) is GRANTED IN PART and 

DENIED IN PART as set fmih in greater detail herein. Defendants Marion County Sheriffs 

Office, Marion County Jail, Sheriff Jason Myers, and Commander Sheila Lorance are dismissed 

with prejudice as redundant. 

IT IS SO ORDERED. 

D'ttd d>i•~y ofD~omhcr 'U,~ QJ,,.__, 

Ann Aiken 

United States District Judge 

Page 22 - OPINION AND ORDER