IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PENDLETON DIVISION

DOUGLAS WILLIAMS,

Plaintiff,

v.

GRANT COUNTY, SHERIFF GLENN

PALMER, JACKSON DEROSIER, and

MICHAEL ALLEY,

Defendants.

Case No. 2:15-CV-01760-SU

ORDER ON

MOTION TO DISMISS

SULLIVAN, United States Magistrate Judge:

Plaintiff was lodged at the Grant County Jail during the events that gave rise to this

complaint. Plaintiff alleges that defendants Grant County, County Sheriff Glenn Palmer, and

sheriff’s deputies Jackson Derosier and Michael Alley were deliberately indifferent to warnings

plaintiff was suicidal and that defendant Derosier facilitated plaintiff’s suicide attempt by providing

him with a razor. Plaintiff sues defendants under 42 U.S.C. § 1983 for violations of his Eighth and

Fourteenth Amendment right to be free of cruel and unusual punishment. He also sues Grant County

for negligence under state tort law. Defendants move to dismiss the claims for lack of subject matter

jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim under

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Rule 12(b)(6). Plaintiff opposes the motion. For the following reasons, the Court denies the

defendants’ motion to dismiss.1

BACKGROUND

In August 2013, plaintiff Douglas Williams, an Eastern Oregon resident who suffers from

severe mental illness, was a pretrial detainee at the Grant County Jail . Compl., at 2-3; Tr., at 27. 

He alleges he began experiencing suicidal thoughts and “made it very clear to everyone at the jail.” 

Compl., at 3. On September 15, 2013, plaintiff notified officers of his bad thoughts in a written

note, known as an “inmate kite form.” Compl.,at 3. At some point, plaintiff was placed on suicide

watch and relocated so he was in full view of the control booth where correctional officers were

stationed. Compl., at 3. However, the complaint alleges that no other suicide prevention protocols

were implemented. Compl., at 3. On September 17, 2013, plaintiff filled out another kite form,

stating that he needed help. Compl., at 3. A sheriff’s deputy asked plaintiff if he was going to hurt

himself, and plaintiff replied that he was not sure because he could not control his thoughts. Compl.,

at 3. That same day, plaintiff called his son to say goodbye. Compl., at 3. His son immediately

called the sheriff’s office, and spoke with defendant Alley, a deputy in the control booth. Compl.,

at 3. Plaintiff’s son told defendant Alley that he needed to check on his father. Compl., at 3. 

According to the complaint, defendant Alley told the son that the plaintiff was not at the jail, and

defendant Alley took no steps to prevent plaintiff’s attempted suicide. Compl., at 3. On the morning

of September 18, 2013, plaintiff asked deputyDerosier for a razor, and the deputy provided him with

one. Compl., at 3. Subsequently, plaintiff used the razor to slash his wrist. Compl., at 3. Plaintiff

1

 The parties have consented to the jurisdiction of the Magistrate Judge pursuant to 28

U.S.C. § 636.

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was immediately transported to the hospital and survived the suicide attempt. Compl., at 3.

State Department of Public Safety Standards and Training (“DPSST”) records indicate that

as of September 2013, defendants Alley and Derosier never received any mental health or suicide

intervention training during their employment with the sheriff’s department. Compl., at 4. The

complaint alleges defendant Palmer received mental health training in 2009 but no suicide

intervention training. Compl., at 4. 

On September 17, 2015, plaintiff filed a complaint with this Court against Grant County,

Sheriff Palmer, and deputies Derosier and Alley. Plaintiff brings claims under Section 1983,

alleging that defendants Palmer, Derosier, and Alleyviolated his Eighth and Fourteenth Amendment

rights by acting with deliberate indifference “to a serious mental health need and a serious risk of

harm to Plaintiff,” and that defendant Grant County violated plaintiff’s Eighth and Fourteenth

Amendment rights by failing to implement adequate policies, procedures, and training regarding

mentally ill and suicidal inmates. Compl., at 4-5. Plaintiff also brings a negligence claim against

Grant County, alleging its employees and agents were negligent in their conduct with plaintiff and

their failure to implement sufficient policies, procedures, and training. Compl., at 6. On March 4,

2016, defendants filed a motion to dismiss the claims under Rule 12(b)(1) for lack of subject matter

jurisdiction and supported the motion by extrinsic evidence. Defendants also moved to dismiss

plaintiff’s complaint under Rule 12(b)(6) for failure to state a claim.2 Plaintiff opposes defendants’

2

 Defendants state their motions and arguments as five separate motions to dismiss: (1)

under Rule 12(b)(1), plaintiff’s Section 1983 claims against defendants Palmer, Derosier, and

Alley for lack of subject matter jurisdiction; (2) under Rule 12(b)(6) plaintiff’s Section 1983

claim against defendant Palmer for failure to state a claim; (3) under Rule 12(b)(6), plaintiff’s

Section 1983 claim against Grant County; (4) under Rule 12(b)(1), plaintiff’s negligence claim

against Grant County for lack of subject matter jurisdiction; and (5) under Rule 12(b)(6),

plaintiff’s negligence claim against Grant County for failure to state a claim. Defs.’ Mot.

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motion to dismiss and any consideration of the extrinsic evidence.

LEGAL STANDARDS

Under Rule 12(b)(6), a defendant may move to dismiss a complaint for “failure to state a

claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6), 8(a)(2). In order to survive such

a motion, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to

relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “This standard does

not rise to the level of a probability requirement, but it demands ‘more than a sheer possibility that

a defendant has acted unlawfully.’” Landers v. Quality Commc’ns, Inc., 771 F.3d 638, 641 (9th

Cir. 2014), cert. denied, 135 S. Ct. 1845 (2015) (quoting Iqbal, 566 U.S. at 678). A plaintiff need

not detail all factual allegations, but the complaint must provide “more than labels and conclusions.” 

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). While the court must assume all facts alleged

in a complaint are true and view them in a light most favorable to the nonmoving party, it need not

accept as true any legal conclusion set forth in the complaint. Iqbal, 556 U.S. at 678. A court

generallymay not consider anymaterial beyond the pleadings when deciding a Rule 12(b)(6) motion

to dismiss.3 Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994) overruled on other grounds by

Galbraith v. Cty. of Santa Clara, 307 F.3d 1119 (9th Cir. 2002); Marder v. Lopez, 450 F.3d 445, 448

Dismiss, at 7-8. Defendants’ motion to dismiss does not seek Rule 12(b)(6) dismissal of the

Section 1983 claims against defendants Derosier and Alley. However, the reply states: “In the

event the Court declines to decide the question of qualified immunity under FRCP 12(b)(1),

defendants request the matter be heard under FRCP 12(b)(6).” Defs.’ Reply, at 3. In the reply,

defendants also request for the first time that the Court convert the motion to dismiss to a motion

for summary judgment. Defs.’ Reply, at 3. 

3

 There are exceptions which allow a court to consider extrinsic evidence and facts

outside the complaint on a Rule 12(b)(6) motion to dismiss, but defendants do not invoke any of

these exceptions here. See Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001).

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(9th Cir. 2006); Fed. R. Civ. P. 12(d). The court may only consider the extrinsic evidence by

converting the motion to dismiss to a motion for summary judgment. Lee v. City of Los Angeles, 250

F.3d 668, 688-89 (9th Cir. 2001) overruled on other grounds by Galbraith, 307 F.3d 1119 (9th Cir.

2002); Fed. R. Civ. P. 12(d).

By contrast, “unlike a Rule 12(b)(6) motion, in a Rule 12(b)(1) motion, the district court is

not confined by the facts contained in the four corners of the complaint—it may consider [outside]

facts and need not assume the truthfulness of the complaint.” Americopters, LLC v. F.A.A., 441 F.3d

726, 732 n.4 (9th Cir. 2006); see Edison v. United States, 822 F.3d 510, 517 (9th Cir. 2016); White

v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). A Rule 12(b)(1) motion to dismiss challenges the

court’s subject matter jurisdiction to hear the claims at issue. Fed. R. Civ. P. 12(b)(1). Specifically,

a court may look beyond the pleadings when a defendant brings a “factual attack” disputing the

substance of the allegations in a complaint as they pertain to subject matter jurisdiction. Edison, 822

F.3d at 517; Dreier v. United States, 106 F.3d 844, 847 (9th Cir. 1996). Generally, a federal court

has subject matter jurisdiction over an action if it arises under the Constitution or federal law, or if

there is complete diversity of citizenship between the parties and the amount in controversy exceeds

$75,000. Other factors, including certain immunities, also affect the court’s ability to hear the case. 

See 28 U.S.C. §§ 1331, 1332(a). If a court determines it lacks subject matter jurisdiction, it must

dismiss the case. Fed. R. Civ. P. 12(h)(3). 

DISCUSSION

I. Section 1983 Claims Against Individual Defendants

Defendants move to dismiss the Section 1983 claims against defendants Palmer, Derosier,

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and Alley for lack of subject matter jurisdiction under Rule 12(b)(1) or alternatively, under Rule

12(b)(6) for failure to state a claim. Defs.’ Mot. Dismiss, at 7, 18-28, 32-34; Defs.’ Reply, at 3. 

Defendants seek to introduce extrinsic evidence in support of their Rule 12(b)(1) motion. Defs.’

Mot. Dismiss, at 18-19. With respect to the Rule 12(b)(6) motion, defendants request that the Court

convert the motion to dismiss to a motion for summary judgment so the Court may consider the

extrinsic evidence. Def.’s Reply, at 3.

A. Rule 12(b)(1) Motion to Dismiss for Lack of Subject Matter Jurisdiction

In their Rule 12(b)(1) motion, defendants assert that the Court lacks subject matter

jurisdiction, because the individual defendants have qualified immunity. Defs.’ Mot. Dismiss, at 7,

18-28. Defendants argue that qualified immunity is a jurisdictional issue that should be decided

under the rubric of Rule 12(b)(1) rather than Rule 12(b)(6). Defs.’ Mot. Dismiss, at 18-20; Defs.’

Reply, at 1-2. On that basis, defendants argue the Court should consider extrinsic evidence generally

allowed only under Rule 12(b)(1) or a motion for summary judgment. Defendants submit dozens

of exhibits, including individual defendants’ declarations, medicalrecords, and witness declarations. 

See Doc. #22-27. Plaintiff disagrees with defendants, and urges the Court to disregard the extrinsic

evidence submitted by defendants. Pl.’s Resp. Mot. Dismiss, at 1, 3-4. 

Defendants do not cite any legal authority for the proposition that qualified immunity is an

issue of subject matter jurisdiction that should be evaluated under Rule 12(b)(1). At oral argument,

they conceded they “did not find any authority directly on point.” Tr., at 9-10. Rather, defendants

analogize qualified immunity with sovereign immunity, arguing: “If a party is entitled to dismissal

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for lack of jurisdiction due to sovereign immunity under the Federal Tort Claims Act, it follows that

a party is entitled to dismissal for lack of jurisdiction where they have qualified immunity to claims

under § 1983.”4 Defs.’ Reply, at 2. The Court disagrees with defendants’ argument. The Supreme

Court has drawn a clear distinction between absolute immunities, such as sovereign immunity, and

qualified immunity. “An absolute immunity defeats a suit at the outset, so long as the official’s

actions were within the scope of the immunity. The fate of an official with qualified immunity

depends upon the circumstances and motivations of his actions, as established by the evidence at

trial.” Imbler v. Pachtman, 424 U.S. 409, 419 n.13 (1976); see Scheuer v. Rhodes, 416 U.S. 232,

239, 243 (1974), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982). 

Accordingly, courts have concluded that a claim of entitlement to qualified immunity is properly

brought as a motion to dismiss under Rule 12(b)(6), not Rule 12(b)(1). “Qualified immunity . . . is

not jurisdictional and dismissal is warranted, if at all, only pursuant to Rule 12(b)(6).” Uptergrove

v. United States, 2008 WL 2413182, at *5 (E.D. Cal. June 12, 2008); Petty v. Shojaei, 2013 WL

5890136, at *12-*13, *12 n.14 (C.D. Cal. Oct. 31, 2013). 

The Court was unable to locate a single Ninth Circuit case which allowed for a Rule 12(b)(1)

dismissal on qualified immunity grounds. However, numerous Supreme Court and Ninth Circuit

cases address Rule 12(b)(6) motions to dismiss on qualified immunity grounds, and they elaborate

standards and procedures for determining such motions. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662

4

 In making this statement, defendants cite to Mundy v. United States, 983 F.2d 950, 952

(9th Cir. 1993). However, the case states only that sovereign immunity is a jurisdictional issue

and does not discuss qualified immunity.

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(2009)(articulating the overarching standard for Rule 12(b)(6) motions in a case determining

qualified immunity); O’Brien v. Welty, 818 F.3d 920, 936 (9th Cir. 2016) (when “defendants assert

qualified immunity in a motion to dismiss under Rule 12(b)(6), dismissal is not appropriate unless

we can determine, based on the complaint itself, that qualified immunity applies”); Groten v.

California, 251 F.3d 844, 851 (9th Cir. 2001) (“a Rule 12(b)(6) dismissal is not appropriate unless

we can determine, based on the complaint itself, that qualified immunity applies”); Morley v. Walker,

175 F.3d 756, 759 (9th Cir. 1999) (“To determine [qualified immunity], we must accept the

allegations in the plaintiff's complaint as true” pursuant to Rule 12(b)(6)); Jensen v. City of Oxnard,

145 F.3d 1078, 1082 (9th Cir. 1998). Accordingly, the Court declines to consider qualified

immunity as part of a Rule 12(b)(1) motion to dismiss. The proper vehicle for defendants to assert

qualified immunity here is a Rule 12(b)(6) motion to dismiss or, if appropriate, a motion for

summary judgment. The Rule 12(b)(1) motion to dismiss Section 1983 claims against individual

defendants is denied. 

B. Conversion of Motion to Dismiss into Motion for Summary Judgment

Before turning to defendants’ alternative Rule 12(b)(6) motion, the Court addresses

defendants’ request that the Court convert that motion to dismiss to a motion for summary judgment. 

Defs.’ Reply, at 3.5 As a general rule, when defendants move to dismiss and submit extrinsic

5

 Defendants’ request is somewhat confusing as defendants ask “that Motion No. 1 be

converted to a Motion for Summary Judgment,” and “Motion No. 1” is a motion to dismiss under

Rule 12(b)(1). Defs.’ Reply, at 3; Defs.’ Mot. Dismiss, at 7. While the Federal Rules of Civil

Procedure provide that, in appropriate circumstances, a Court may convert a Rule 12(b)(6)

motion into a motion for summary judgment, there is no such provision for a Rule 12(b)(1)

motion. Fed. R. Civ. P. 12(d). Accordingly, the Court interprets defendants request as seeking to

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evidence, courts have discretion to consider the evidence by converting the motion to a motion for 

summary judgment.6 Hamilton Materials, Inc. v. Dow Chem. Corp., 494 F.3d 1203, 1207 (9th Cir.

2007); Arkema, 719 F. Supp. 2d at 1330; see Fed. R. Civ. P. 12(d). However, a court may not

convert the motion to dismiss to one for summary judgment, unless the plaintiff first receives “both

notice that the motion is pending and an adequate opportunity to respond.” Portland Retail

Druggists Ass’n v. Kaiser Found. Health Plan, 662 F.2d 641, 645 (9th Cir. 1981); see In re Rothery,

143 F.3d 546, 549 (9th Cir. 1998); see also Fed. R. Civ. P. 12(d). “Implicit in the ‘opportunity to

respond’ is the requirement that sufficient time be afforded for discovery necessary to develop facts

essential to justify a party’s opposition to the motion.” Portland Retail Druggists Ass’n, 662 F.2d

at 645; Neuber v. Pritt, 2015 WL 5965621, at *2 (D. Or. Oct. 13, 2015). 

Here, defendants moved to dismiss partly on Rule 12(b)(1) grounds and stated they were

submitting extrinsic evidence in support of those jurisdictional motions. Only in their reply brief did

defendants request the Court convert their motion to dismiss to one for summary judgment. In

support of conversion to summary judgment, defendants argue only that, “Summary Judgment is

appropriate because Plaintiff has not submitted any evidence and there are no disputed issues of

fact.” Defs.’ Reply, at 3. However, plaintiff only learned of defendants’ conversion request in that

convert the Rule 12(b)(6) motion into a motion for summary judgment. 

6

 Specifically, Rule 12(d) provides: 

If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are

presented to and not excluded by the court, the motion must be treated as one for

summaryjudgment under Rule 56. All partiesmust be given a reasonable opportunity

to present all the material that is pertinent to the motion.

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same reply. Moreover, discovery has not concluded as it was stayed pending the resolution of

defendants’ motion to dismiss. See Doc. #18. Under the present circumstances, conversion to a

motion forsummaryjudgment is not appropriate. Accordingly, defendants’ request should be denied

and all extrinsic evidence excluded at this stage of proceedings. 

C. Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim

As explained above, the appropriate framework for deciding defendants’ qualified immunity

arguments is a Rule 12(b)(6) motion to dismiss for failure to state a claim. A court may not dismiss

a Rule 12(b)(6) motion on qualified immunity grounds unless it “can determine, based on the

complaint itself, that qualified immunity applies.” O’Brien, 818 F.3d at 936 (quoting Groten, 251

F.3d at 851). In making that determination, a court must decide (1) whether the factual allegations,

taken in the light most favorable to the plaintiff, show defendants violated plaintiff’s constitutional

rights; and (2) whether those rights were “clearly established” at the time of the defendants’ alleged

misconduct. O’Brien, 818 F.3d at 936; Pearson v. Callahan, 555 U.S. 223, 232 (2009). A court

may consider the two questions in any order. Pearson, 555 U.S. at 236. 

Beginning with the second question, defendants argue that “the law governing a right to be

protected from self-harm or attempted suicide was not clearlyestablished” at the time of defendants’

alleged misconduct. Defs.’ Mot. Dismiss, at 23-27. In support of this argument, defendants cite

Taylor v. Barkes, in which the Supreme Court held that the right was not clearly established as of

November 2004. 135 S. Ct. 2042, 2044 (2015). Defendants reliance on Tayloris misplaced. Here,

plaintiff alleges misconduct in 2013. As of 2013, the Ninth Circuit had repeatedly held that pretrial

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detainees have a “clearlyestablished right” to mental health treatment, including suicide prevention,

while in custody. See, e.g., Clouthier v. Cty. of Contra Costa, 591 F.3d 1232, 1245 (9th Cir. 2010),

overruled on other grounds by Castro v. Cty. of Los Angeles, 2016 WL4268955, at *6 (9th Cir. Aug.

15, 2016) (pre-trial detainees’ rights to adequate suicide prevention measures were clearly

established as of 2005); Conn v. City of Reno, 591 F.3d 1081, 1094-95, 1102 (9th Cir. 2010), cert.

granted, judgment vacated on other grounds 563 U.S. 915 (2011), and opinion reinstated in relevant

part, 658 F.3d 897 (9th Cir. 2011) (holding it was clearly established that the Fourteenth

Amendment “protects against deliberate indifference to a detainee’s serious risk of suicide”); De

Vincenzi v. City of Chico, 592 F. App’x 632, 634 (9th Cir. 2015) (“the officers’ duty to provide

adequate medical care, including suicide prevention [to an arrestee], was clearly established as of

December 2009”); Cabrales v. Cty. of Los Angeles, 864 F.2d 1454, 1461-62 (9th Cir. 1988), cert.

granted, judgment vacated, 490 U.S. 1087 (1989), and opinion reinstated, 886 F.2d 235 (9th Cir.

1989) (upholding verdict against county and jail commander who showed deliberate indifference to

a pretrial detainee’s risk of suicide). Thus, as of 2013 when the alleged misconduct occurred,

plaintiff’s right to adequate suicide prevention measures was clearly established. 

Next, the question is whether the complaint alleges sufficient facts to establish a violation

of that clearly established right. As plaintiff was a pretrial detainee, his claim must be analyzed

under the Fourteenth Amendment. Castro v. Cty. of Los Angeles, 2016 WL 4268955, at *4 (9th Cir.

Aug. 15, 2016) (citing Bell v. Wolfish, 441 U.S. 520, 535-37 (1979)); Johnson v. Corizon Health,

Inc., 2015 WL 1549257, at *9 (D. Or. Apr. 6, 2015). Detainees who have been convicted of a crime

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may sue prison officials under the Eighth Amendment’s Cruel and Unusual Punishment Clause, but

pretrial detainees must instead sue under the Fourteenth Amendment’s Due Process Clause. Id. In

doing so, pretrial detainees invoke their right to be free of punishment without due process. Id. In

the past, the Ninth Circuit analyzed claims that corrections officials failed to protect inmates under

the same “deliberate indifference” standard, regardless of whether the plaintiff was a convicted

inmate or a pretrial detainee. See, e.g., Clouthier 591 F.3d at 1243-44; Simmons v. Navajo Cty.,

Ariz., 609 F.3d 1011, 1017-18 (9th Cir. 2010). However, the Ninth Circuit recently set forth a less

stringent formulation of the “deliberate indifference” standard for pretrial detainee plaintiffs. Castro,

2016 WL 4268955, at *6-*7. Under Castro v. Los Angeles, a pretrial detainee establishes a

Fourteenth Amendment failure-to-protect claim if he can show that: (1) defendant made an

intentional decision with respect to the conditions of plaintiff’s confinement; (2) plaintiff was

exposed to a “substantial risk of serious harm . . . that could have been eliminated through reasonable

and available measures”; (3) “defendant did not take reasonable available measures to abate that risk,

even though a reasonable officer in the circumstances would have appreciated the high degree of risk

involved—making the consequences of the defendant's conduct obvious;” and (4) bynot taking those

measures, defendant caused plaintiff’s injuries. 7Id., at *7.

Here, the factual allegations are sufficient under either standard. Plaintiff alleges that he and

7

 Before Castro, a pretrial detainee had the more challenging task of showing an

individual defendant was “(a) subjectively aware of [plaintiff’s] serious medical need and (b)

failed adequately to respond.” Simmons, 609 F.3d at 1017-18; see Clouthier 591 F.3d at 1242-

43.

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his son repeatedly informed deputies, including defendant Alley, that plaintiff was experiencing

suicidal thoughts, but Alley and the others did not act on the information. Compl., at 3. Plaintiff

alleges that, at some point, he was placed on suicide watch, but no other protocols were implemented

to prevent his eventual suicide attempt. Compl., at 3. Plaintiff alleges that, although he was on

suicide watch and had informed defendant Alley and other deputies of his suicidal thoughts,

defendant Derosier provided him a razor which plaintiff used to attempt suicide. Compl., at 3. 

As for defendant Palmer, a “supervisor need not be directly and personally involved . . . 

Rather, the supervisor’s participation could include his own culpable action or inaction in the

training, supervision, or control of his subordinates.” Starr v. Baca, 652 F.3d 1202, 1205-06 (9th

Cir. 2011). Plaintiff alleges defendant Palmer failed to adequately train his subordinates and to

implement and enforce policies and procedures regarding suicide prevention and inmate mental

health needs. Compl., at 4. Specifically, plaintiff alleges that none of the defendants received any

formal suicide prevention training during their employment, and that onlydefendant Palmer received

mental health training. Compl., at 4. These allegations are sufficient to state claims that defendants

Palmer, Alley, and DeRosier violated plaintiff’s Fourteenth Amendment right. On a motion to

dismiss, the plaintiff need not plead each detail of his case, but rather must allege facts, that if true,

could allow a “court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Iqbal, 556 U.S. 662, 678 (2009); see Starr, 652 F.3d at 1217. Plaintiff has done so here. 

Accordingly, the Court denies defendants’ motion to dismiss as to the Section 1983 claims against

defendants Palmer, Alley, and Derosier.

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II. Section 1983 Claim Against Grant County

In order to state a Section 1983 claim against a local government entity, a plaintiff may not

relyon vicariousliability but must instead plead facts showing the municipality’s policies or customs

caused a constitutional violation. Ass’n for Los Angeles Deputy Sheriffs v. Cty. of Los Angeles, 648

F.3d 986, 992-93 (9th Cir. 2011); see Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-92 (1978). 

When the plaintiff bases such a claim on a failure to train municipal employees, that failure “must

amount to deliberate indifference to the rights of persons with whom the untrained employees come

into contact.” Connick v. Thompson, 563 U.S. 51, 61 (2011); see City of Canton, Ohio v. Harris,

489 U.S. 378, 388 (1989). The plaintiff must allege facts showing the municipality “disregarded

the known or obvious consequence” that its failure to train would cause employees to violate

citizens’ constitutional rights. Flores v. Cty. of Los Angeles, 758 F.3d 1154, 1159 (9th Cir. 2014);

Connick, 563 U.S. at 1360. To that end, a “pattern of similar constitutional violations by untrained

employees is ordinarily necessary to demonstrate deliberate indifference for purposes of failure to

train.” Id. However, in certain circumstances, the dire consequences of a failure to train might be

“so patently obvious that a [municipality] could be liable under § 1983 without proof of a

pre-existing pattern of violations.” Connick, 563 U.S. at 64; see Canton, 489 U.S. at 390, 390 n.10. 

A plaintiff can plead such “single-incident liability” byalleging circumstances in which the violation

of a constitutional right was the “highly predictable consequence of a failure to equip law

enforcement officers with specific tools to handle recurring situations.” Long v. Cty. of Los Angeles,

442 F.3d 1178, 1186 (9th Cir. 2006) (quoting Bd. of Cty. Comm’rs of Bryan Cty., Okl. v. Brown, 520

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U.S. 397, 409 (1997)). For example, a city would be liable if it armed its police force with firearms

and set them to work capturing fleeing felons without any training in the constitutional limitation

on deadly force. Connick, 563 U.S. at 63-64; Canton, 489 U.S. at 390 n.10.

Here, the complaint does not allege facts showing a pattern of similar constitutional

violations. Rather, plaintiff alleges that defendant Grant County set its deputies to work guarding

inmates at the county jail without providing them any training in suicide prevention or the mental

health needs of detainees. Compl., at 4, 6. The Court recognizes that so-called single-incident

liability is rare but declines to foreclose the possibility at this early stage of the litigation. Plaintiff’s

allegations are sufficient to state a plausible claim for municipal liability. The Court denies

defendants’ motion to dismiss the Section 1983 claim against Grant County. 

III. Negligence Claim Against Grant County

Plaintiff alleges a negligence claim against Grant County under Oregon law. Defendants

make several arguments under Rule 12(b)(1) that the Court must dismiss the claim for lack of subject

matter jurisdiction. Defs.’ Mot. Dismiss, at 8, 37-44. In their motion to dismiss, defendants also

argue the claim should be dismissed failure to state a claim under Rule 12(b)(6). Defs.’ Mot.

Dismiss, at 8, 44-45

As stated above, a Rule 12(b)(1) motion to dismiss appears to be an incorrect vehicle for 

defendants’ arguments. However, the Court need not determine whether defendants’ arguments are

properly made under Rule 12(b)(1), or if they should instead be brought under Rule 12(b)(6). The

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arguments are legally deficient and would fail under either type of motion. 

Defendants’ first argument for dismissal of the negligence claim is based on the assumption

that the Court will dismiss all of plaintiffs’ Section 1983 claims and, thus, will lack a sound basis

for exercising supplemental jurisdiction over the remaining state-law claim. Defs.’ Mot. Dismiss,

at 37-38. Such a decision is entirely within the Court’s discretion. Here, defendants’ assumption

is not accurate, as the Court is not dismissing the Section 1983 claims. Those claims give rise to

federal question jurisdiction and thus there is a sound basis, under 28 U.S.C. § 1367, for exercising

supplemental jurisdiction over the negligence claim. 

Second, defendants argue that the “State law negligence claim against the County is simply

an attempt to hold the County vicariously liable for the § 1983 claims,” and Monell and its progeny

preclude vicarious liability. Defs.’ Mot. Dismiss, at 39 (citing Monell, 436 U.S. 658). This

argument attempts to inappropriately apply federal civil rights law to a state law negligence claim. 

This argument does not advance defendants’ case.

Finally, defendants contend that the County is shielded from any negligence liability by

statutory immunity under the Oregon Tort Claims Act (“OTCA”). Defs.’ Mot. Dismiss, at 39-44. 

Defendants base their argument on O.R.S. § 30.265(5) of the OTCA, which states, in relevant part:

“Every public body is immune from liability for any claim for injury to or death of any person . . .

resulting from an act or omission of an [employee] when [that employee] is immune from liability.” 

See Defs.’ Mot. Dismiss, at 39-40. Defendants then argue that the County cannot be held liable for

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the alleged torts of defendants Palmer, Alley, and Derosier because they all have qualified immunity

and Palmer has discretionary immunity under the OTCA. Defs.’ Mot. Dismiss, at 40. 

Defendants improperlyinvoke Section 1983 qualified immunityin the context of Oregon tort

law. The OTCA, not federal civil rights law, governs plaintiff’s state-law negligence claim. Section

1983 qualified immunity has no bearing over whether the Countymay be held liable for negligence. 

Defendants’ qualified immunity argument that defendants Palmer, Alley and Derosier are immune

under the OTCA fails. The Court need not reach defendant’s argument that defendant Palmer has

discretionary immunity under O.R.S. § 30.265(6)(c). The County asserts defendant Palmer’s

discretionary immunity based on extrinsic evidence not appropriate at this state of the litigation. 

Even if plaintiff could not bring his negligence claim against the County on the basis of Palmer’s

alleged misconduct, plaintiff could still base his claim on the alleged acts and omissions of Derosier

and Alley. Thus, the OTCA does not bar plaintiff’s negligence claim against the County.

8 The Court

denies the motion to dismiss the negligence claim. 

8

 Defendants’ concede compliance with the OTCA notice provision. Defs.’ Reply, at 20.

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CONCLUSION

The Court DENIES defendants’ Motion to Dismiss (Doc. #21). IT IS SO ORDERED.

DATED this 12th day of September, 2016.

 /s/ Patricia Sullivan 

Patricia Sullivan

United States Magistrate Judge

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