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Derby v. Columbia Cnty.

United States District Court, District of Oregon
Feb 8, 2022
3:21-cv-1030-HL (D. Or. Feb. 8, 2022)

Opinion

3:21-cv-1030-HL

02-08-2022

MICHELLE DERBY, as legal guardian for William Derby, an individual, Plaintiff, v. COLUMBIA COUNTY, an Oregon municipality; CORRECT CARE SOLUTIONS LLC, d/b/a/ Wellpath LLC; JEFFREY DICKERSON, in his official capacity; CHRIS HOOVER, in his official capacity; JUSTIN HECHT, in his official capacity; VIVIK SHAH, in his official capacity; JULIE WEIGAND, in her official capacity; NANCY RONAN, in her official capacity; COLUMBIA COMMUNITY MENTAL HEALTH, an Oregon non-profit corporation; and KAREN FORTLANDER, in her official capacity, Defendants.


FINDINGS AND RECOMMENDATION

ANDREW HALLMAN, United States Magistrate Judge.

Plaintiff Michelle Derby, the legal guardian for William Derby (“Derby”), brings this action against Columbia County, two corporations, and seven individuals. Plaintiff's claims stem from Derby's treatment while he was incarcerated at Columbia County Jail. Plaintiff alleges (1) violations of Derby's rights under the Fourth, Eighth, and Fourteenth Amendments to the United States Constitution pursuant to 42 U.S.C. § 1983; (2) failures to properly accommodate Derby's disabilities as required by the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12191 et. seq., and the Rehabilitation Act, 29 U.S.C. § 794; and (3) negligence under the Oregon Tort Claims Act (“OTCA”), Or. Rev. Stat. § (“ORS”) 30.265 et. seq. Compl. 23-32, ECF 1. As discussed in detail below, Defendants who have appeared in this action have filed three separate-but-overlapping Motions to Dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6). See ECF 13, 14, 16. This court heard oral argument on these motions on January 25, 2022. ECF 30.

For the reasons explained below, Defendants' motions should be GRANTED in part and DENIED in part, and Plaintiff's complaint should be DISMISSED without prejudice and with leave to amend.

FACTUAL BACKGROUND

The following facts are taken from Plaintiff's complaint and are assumed to be true for the purpose of reviewing the pending Motions to Dismiss. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 572 (2007) (explaining that a district court “ruling on a defendant's motion to dismiss a complaint must accept as true all of the factual allegations contained in the complaint”) (quotations and citation omitted).

Derby has been medically diagnosed with schizophrenia, adjustment disorder, anxiety, and depression. Compl. ¶ 15. On August 17, 2015, he was convicted of certain crimes and sentenced to eighteen months supervised probation. Id. Defendant Justin Hecht (“Hecht”) is a probation officer employed by Columbia County, and Derby was assigned to Hecht's caseload. Id. ¶¶ 7, 16. Hecht issued multiple warrants for Derby based on alleged probation violations. Id. ¶¶ 16-17. On February 3, 2016, another probation officer, Defendant Chris Hoover (“Hoover”), observed Derby with alcoholic beverages and arrested him. Id. ¶ 18. Derby subsequently spent the next seven-and-a-half months in the Columbia County Jail (“Jail”). Id. ¶ 19.

While in the Jail, Derby endured solitary confinement and was only permitted out of his cell for very limited time periods, which had severe negative impacts on his mental health. Id. ¶ 19. However, unidentified defendants did not have Defendant Columbia County Mental Health (“CCMH”) or any other facility provide psychiatric intervention for Derby. Id. ¶ 67. Derby was also improperly treated in other ways: he was denied adequate medication and mental health services; punished for his mental illnesses' symptoms; subjected to cold temperatures; denied access to other basic necessities of life if he did not immediately respond to the officers; and subjected to physical abuse. Id. ¶¶ 20-21, 23-25, 27, 31, 33-34, 67-68.

On September 21, 2016, Derby was released from custody and reported to Hoover. Id. ¶ 34. On October 12, 2016, Klamath Falls Police contacted Hoover about Derby, who was suffering from mental illness and had been arrested on disorderly conduct charges. Id. ¶ 37. Hoover asked Klamath Falls Police to detain Derby for failing to report his change of address. Id. ¶ 37. Hoover requested a warrant but, after speaking with Derby's sister and his attorney, agreed to hold off on issuing a warrant so that Derby could obtain mental health care in Klamath Falls. Id. ¶¶ 38-39. Despite this agreement, and despite regular contact from Derby's attorney, Hoover eventually reissued the warrant for Derby based on multiple “false representations.” Id. ¶ 43.

On February 3, 2017, Derby was detained in Klamath Falls and then transferred to the Jail on or around February 7, 2017. Id. ¶¶ 44, 46. On February 15, 2017, he was sentenced to ninety days in the Jail, but he was to be furloughed as soon as a bed in a treatment facility could be obtained. Id. ¶ 45.

Two days after his admission to the Jail, a jail nurse stated that Derby was “more coherent than past encounters” and did not observe any bizarre behavior. Id. ¶ 46. By February 25, 2017, however, unidentified jail nursing staff had discontinued Derby's medications without making efforts to persuade Derby to take them and without obtaining physician approval. Id. ¶ 47.

On March 6, 2017, Derby's family members informed Hoover that Derby's mental condition was declining in the Jail. Id. ¶ 48. Two days later, Hecht visited Derby at the Jail and falsely informed him that if he went to a treatment facility and “screw[ed] up, ” that he would be sent back to the Jail. Id. ¶ 49. After his meeting, Hecht ceased all efforts to have Derby transferred to a treatment facility. Id.

Derby went on a hunger strike from March 10, 2017, to March 21, 2017, missing 26 out of 36 meals. Id. ¶ 50. Unidentified correctional officers and medical and mental health personnel failed to intervene or take any action. Id. A nurse evaluated him on March 23, 2017, and made a note that said, “Place on special needs, ” but Derby was not placed on special needs. Id. ¶ 51.

In March or April of 2017, a meeting was held between unidentified jail staff and members of the Columbia County District Attorney's Office regarding Derby's release from custody. Id. ¶ 53. Deputy Weaver, a non-party, stated that the Jail intended to release Derby into the public and that the Jail would accept responsibility if “anything were to happen.” Id. In addition, Derby's family asked Hoover if Derby could be considered for transitional housing, but Hoover informed them that Derby was too dangerous to himself and others to be considered. Id. ¶ 54.

Derby was released from the Jail on April 4, 2017. Id. ¶ 55. He was in poor health and, four days later, collapsed in his parents' home and was taken to the hospital. Id. ¶ 56. A physician at the hospital recommended that he be admitted to Unity Center for Behavioral Health (“Unity”), a non-party, for five days due to an inability to care for himself and being both a suicide and flight risk. Id. ¶ 57. He was then transferred to Unity. Id.

Unity informed Derby's family that they would work with CCMH to develop a plan for Derby. Id. ¶ 58. Derby's caseworker at CCMH, Defendant Karen Fortlander (“Fortlander”), ultimately recommended that Derby be released after only two days despite Derby's family's objections. Id. ¶ 59. Derby was discharged from Unity shortly thereafter based on Fortlander's recommendations. Id. ¶¶ 59-60. His parents picked him up in Portland on April 12, 2017. Id. ¶ 62.

Derby's parents took him to an appointment at CCMH the day after picking him up. Id. ¶ 62. While leaving the appointment, Derby jumped out of a moving car and ran across traffic. Id. Four days after that, Derby cut his mother's throat with a butcher's knife and was arrested. Id. ¶ 63-64.

Derby returned to the Jail and, on May 7, 2017, attempted suicide with a razor blade that unidentified officers provided to Derby. Id. ¶ 65. He was then placed in a suicide jacket and put in isolation. Id. Derby's mental health continued to deteriorate until he was treated at the Oregon State Hospital pursuant to a court order. Id. ¶ 66. Derby eventually pleaded guilty except for insanity to the charges of attempted murder. Id. ¶ 69.

PROCEDURAL BACKGROUND

Plaintiff, as the legal guardian of Derby, initiated this action on July 9, 2021. Id. at 32.

Plaintiff names the following Defendants based on their organizational roles within the Jail: Defendant Columbia County owned and operated the Jail. Id. ¶ 6. Defendant Jeffrey Dickerson (“Dickerson”) was the Sheriff of Columbia County and was in charge of operating the Jail. Id. ¶ 9. Defendant Correct Care Solutions (“CCS”) was a corporation contracted by Columbia County to provide medical services at the Jail. Id. ¶ 8. Defendant Vivek Shah, MD (“Shah”), was the Medical Director for CCS covering the Jail; Defendant Julie Weigand (“Weigand”) was a behavioral health manager for CCS at the Jail; and Defendant Nancy Ronan (“Ronan”) was a nurse for CCS who worked at the Jail. Id. ¶¶ 10-12. Defendant CCMH was a non-profit organization that also contracted with the Jail to provide mental health services to inmates. Id. ¶ 13. Defendant Fortlander was a case manager for CCMH and was Derby's assigned case worker. Id. ¶ 14.

As noted above, Plaintiff also asserts claims against Hetch, Hoover, Fortlander, and CCMH based on their involvement with Plaintiff while he was out of custody. Compl. ¶ 1.

Plaintiff alleges four claims for relief. First, she asserts 42 U.S.C. § 1983 claims against all Defendants for Eighth and Fourteenth Amendments violations under three separate theories of relief: Count I alleges that all Defendants “were aware of [] Derby's serious medical need, and yet were deliberately indifferent in neglecting to adequately address that serious medical need.” Id. ¶ 73. Count II alleges that all supervisory defendants-i.e., all Defendants except Hoover, Hecht, Ronan, and Fortlander-engage in systemic practices that deny inmates at the Jail access to adequate mental health screenings, medications, and mental health professionals. Id. ¶¶ 76-86. Count III alleges that Columbia County and Dickerson maintain a policy that places mentally ill inmates in isolation, deprives mentally ill inmates of basic necessities, subjects mentally ill inmates to physical abuse, fails to properly train staff, and thereby, Columbia County and Dickerson ultimately failed to prevent Derby from obtaining a dangerous weapon. Id. ¶¶ 90-93.

In her second claim, Plaintiff brings ADA and Rehabilitation Act claims against Columbia County, alleging that the Jail's practice of requiring inmates to identify their own health issues and punishing inmates for their disability resulted in Derby being denied access to programs, services, or activities at the Jail. Id. ¶ 102.

In her third claim, Plaintiff brings additional § 1983 claims against Columbia County and Hoover for issuing the warrant for Derby's arrest based on false information and without probable cause, in violation of his rights under the Fourth Amendment of the United States' Constitution. Id. ¶¶ 107-108.

Finally, in her fourth claim, Plaintiff alleges negligence against all Defendants under the Oregon Tort Claims Act, alleging generally that Defendants' conduct described in the complaint caused harm to Derby. Id. ¶ 109.

STANDARD OF REVIEW

Under Rule 12(b)(6), a party 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). A court may dismiss “‘based on the lack of cognizable legal theory or the absence of sufficient facts alleged'” under a cognizable legal theory. UMG Recordings, Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006, 1014 (9th Cir. 2013) (quoting Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990)).

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570; see also CallerID4u, Inc. v. MCI Commc'ns Servs. Inc., 880 F.3d 1048, 1061 (9th Cir. 2018). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Teixeira v. Cty. of Alameda, 873 F.3d 670, 678 (9th Cir. 2017). The plausibility standard is not akin to a “probability requirement, ” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Twombly, 550 U.S. at 556. When a plaintiff's complaint pleads facts that are “merely consistent with” a defendant's liability, the plaintiff's complaint “stops short of the line between possibility and plausibility of ‘entitlement to relief.'” Id. at 557 (brackets omitted).

The court must accept as true the allegations in the complaint and construe them in favor of the plaintiff. Teixeira, 873 F.3d at 678; see also Iqbal, 556 U.S. at 679; Kwan v. SanMedica Int'l, 854 F.3d 1088, 1096 (9th Cir. 2017). The pleading standard under Rule 8 “does not require ‘detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555); see also Fed. R. Civ. P. 8(a)(2). “A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do.” Iqbal, 556 U.S. at 678 (internal citations omitted); Kwan, 854 F.3d at 1096. A complaint also does not suffice if it tenders “naked assertion[s]” devoid of “further factual enhancement.” Twombly, 550 U.S. at 557. “Rule 8 does not empower [the] respondent to plead the bare elements of his cause of action . . . and expect his complaint to survive a motion to dismiss.” Iqbal, 556 U.S. at 687.

DISCUSSION

Defendants who have appeared in this action have filed three separate Motions to Dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6). The “CCMH Defendants” include CCMH and Fortlander (“CCMH Defendants”). Def. CCMH & Fortlander Mot. Dismiss (“CCMH Mot.”), ECF 13. The “County Defendants” include Columbia County, Dickerson, Hoover, and Hecht. Defs. Columbia County, Dickerson, Hoover, Hecht Mot. Dismiss & Joinder Mots. Dismiss (“County Mot.”), ECF 14. Finally, the “Wellpath Defendants” include Wellpath, Ronan, Shah, and Weigland. Defs. Wellpath, Ronan, Shah Mot. Dismiss & Joinder Mots. Dismiss (“Wellpath Mot.”), ECF 16. All Defendants join, either entirely or partially, in other Defendants' motions. See CCMH Mot. 8 (joining in all motions); County Mot. 4 (partially joining other motions); Wellpath Mot. 2 (partially joining other motions). Plaintiff has filed responses to each motion, opposing dismissal on all grounds except for failure to plead adequate tort claim notice for her Fourth Claim for relief.

County Defendants make an alternative motion for Plaintiff to make the pleadings more definite and certain under Rule 12(e). County Mot. 2. Such a motion “is disfavored and is proper only if the complaint is so indefinite that the defendant cannot ascertain the nature of the claim being asserted, meaning the complaint is so vague that the defendant cannot begin to frame a response.” Martin v. City of Portland, No. 3:19-CV-1647-SI, 2020 WL 363391, at *2 (D. Or. Jan. 21, 2020). Should the County Defendants' Rule 12(b)(6) motions be granted for the reasons set forth below, it will address the vague and indefinite allegations in the complaint. It is therefore unnecessary to address the County Defendants' alternative motion to make Plaintiff's pleadings more definite and certain.

The Wellpath Defendants' motion indicated that it was filed on behalf of Defendant Weigand. Wellpath Mot. 2. However, Weigand was only recently served and has not appeared in this action. See ECF 34. After oral argument, counsel for Wellpath Defendants clarified that they were not moving to dismiss on her behalf at this time. See ECF 31. Regardless, this Court can consider whether the arguments for dismissal presented by the other Wellpath Defendants apply to Weigand. See Abagninin v. AMVAC Chem. Corp., 545 F.3d 733, 742 (9th Cir. 2008) (“As a legal matter, we have upheld dismissal with prejudice in favor of a party which had not appeared, on the basis of facts presented by other defendants which had appeared.”).

The Defendants, collectively and individually, assert that Plaintiff's complaint should be dismissed with prejudice based on the following grounds:

(1) All Defendants assert that Plaintiff's complaint is an improper “shotgun pleading” because it lacks sufficient detail linking the actions of individual Defendants to the claims for relief. CCMH Mot. 5; Defs. Columbia County, Dickerson, Hoover, Hecht Reply Mot. Dismiss (“County Reply”) 3, ECF 25; Wellpath Mot. 3;
(2) The Wellpath Defendants argue that Plaintiff's complaint fails to identify the alleged personal involvement of each individual Defendant and instead seeks to improperly hold them vicariously liable under § 1983. Wellpath Mot. 3;
(3) The CCMH Defendants contend that Plaintiff's complaint fails to plead facts that would plausibly assert that they were acting under color of state law, which is a required element of a § 1983 claim. CCMH Mot. 3;
(4) The County and Wellpath Defendants claim that Plaintiff fails to allege that she provided notice of her state law claims as required by the OTCA. County Mot. 3; Wellpath Mot. 2;
(5) All Defendants argue that Plaintiff's claims are barred by the two-year statute of limitations. CCMH Mot. 7-8; County Mot. 4; Wellpath Mot. 1; and
(6) All Defendants maintain that Plaintiff's claims should be dismissed with prejudice. CCMH Mot. 9; County Mot. 4; Wellpath Mot. 5.

For the following reasons, the District Judge should:

(1) GRANT all Defendants' Motions to Dismiss Claim 1 (Counts I and II) and Claim 4, and DENY County Defendants' Motion to Dismiss Claim 1 (Count III), Claim 2, and Claim 3 as improper shotgun pleadings;
(2) GRANT Wellpath Defendants' Motion to Dismiss Claim 1 (the § 1983 claims) based on lack of personal involvement;
(3) GRANT CCMH Defendants' Motion to Dismiss Claim 1 (the § 1983 claims) due to the failure to allege that they were acting under color of state law;
(4) GRANT County Defendants' Motion to Dismiss Claim 4, and DENY Wellpath Defendants' Motion to Dismiss Claim 4 due to failure to allege tort claim notice;
(5) DENY all Defendants' Motion to Dismiss on the grounds that all Plaintiff's claims are barred by the statute of limitations; and
(6) DISMISS Plaintiff's complaint WITHOUT PREJUDICE and with leave to amend.

I. Shotgun Pleading

Pursuant to Rule 8(a)(2) of the Federal Rules of Civil Procedure, a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” “Each allegation must be simple, concise and direct.” Fed.R.Civ.P. 8(d)(1). If the factual elements of a cause of action are scattered throughout the complaint but are not organized into a “short and plain statement of the claim, ” dismissal for failure to satisfy Rule 8(a) is proper. Sparling v. Hoffman Constr. Co., 864 F.2d 635, 640 (9th Cir. 1988); see also Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 674 (9th Cir. 1981) (noting that a district court may dismiss an action with prejudice due to a litigant's failure to comply with Rule 8(a) if meaningful, less drastic sanctions have been explored); McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (recognizing complaints that are “argumentative, prolix, replete with redundancy, and largely irrelevant” and that “consist[ ] largely of immaterial background information” are subject to dismissal under Rule 8); Cafasso, United States ex rel. v. General Dynamics C4 Systems, Inc., 637 F.3d 1047, 1059 (9th Cir. 2011) (citing cases upholding Rule 8 dismissals where pleadings were “verbose, ” “confusing, ” “distracting, ambiguous, and unintelligible, ” “highly repetitious, ” and comprised of “incomprehensible rambling”).

“Pleadings that seek to overwhelm defendants with an unclear mass of allegations and make it difficult to impossible for the defendants to make informed responses to the plaintiff's allegations are considered ‘shotgun' pleadings.” A.B. v. Hilton Worldwide Holdings Inc., 484 F.Supp.3d 921, 943 (D. Or. 2020) (citing Autobidmaster, LLC v. Alpine Auto Gallery, LLC, No. 3:14-cv-1083-AC, 2015 WL 2381611, at *15 (D. Or. May 19, 2015). “Another type of ‘shotgun' pleading is a complaint that asserts claims against ‘multiple defendants without specifying which of the defendants are responsible for which acts or omissions.'” Id. (quoting Nissen v. Lindquist, No. C16-5093 BHS, 2017 WL 26843, at *2 (W.D. Wash. Jan. 3, 2017). “Finally, a complaint may constitute impermissible ‘shotgun' pleading if it fails to connect its factual allegations to the elements comprising plaintiff's claims such that it denies the parties adequate notice of the allegations supporting each cause of action.” Id. (citations omitted). Shotgun pleadings violate Rule 8 and are subject to dismissal under Rule 12(b)(6) for failure to state a claim. See, e.g., Autobidmaster, 2015 WL 2381611, at *15.

In this case, Counts I and II of Plaintiff's first claim for relief and Plaintiff's fourth claim for relief are impermissible shotgun pleadings. With respect to the first claim, Count I asserts § 1983 claims against all Defendants, and Count II asserts § 1983 claims against all supervisory Defendants. In both counts, Plaintiff does not make any distinctions as to which Defendants were responsible for the alleged acts or omissions. Plaintiff fails to distinguish the allegations against any individual Defendants despite the fact that Defendants had markedly different roles within the Jail and would have had differing responsibilities for Derby's medical care. Plaintiff also fails to connect the detailed factual allegations in her complaint to the specific claims against each Defendant in these counts. For these reasons, Plaintiff's first claim for relief, Counts I and II, should be dismissed on the grounds that they violate Rule 8's pleading requirements.

Plaintiff's fourth claim for relief, which alleges negligence against all Defendants, is also an impermissible shotgun pleading. This claim incorporates all the prior factual allegations in the complaint without distinguishing any of Defendants or alleging any specific breaches of duty. This is wholly insufficient to state a claim for negligence. Plaintiff must allege, with some particularity, what each Defendant's duty was to Plaintiff and each of the particular ways that that Defendant breached that duty. See Kelsey v. Goldstar Est. Buyers Corp., No. 3:13-CV-00354-HU, 2014 WL 1155253, at *8 (D. Or. Mar. 21, 2014) (“[G]eneral allegations the duty was breached is not enough.”). Although there is obviously some significant overlap in the varying duties that various Defendants owed that Plaintiff might allege, it is simply not plausible to suggest that each of the various Defendants had the same duty to Derby and breached that duty in identical ways. Accordingly, Plaintiff's fourth claim for relief should be dismissed as an improper shotgun pleading.

Conversely, Count III of Plaintiff's first claim for relief, Plaintiff's second claim for relief, and Plaintiff's third claim for relief fare differently. These claims are explicitly brought against identified County Defendants and contain sufficient facts so as to alert those Defendants as to the factual basis for the claims. Although the County Defendants generally allege that Plaintiff's complaint should be dismissed as a shotgun pleading, they fail to specify any basis for which these specific claims violate Rule 8. The County Defendants' motion should be denied as to Count III of Plaintiff's first claim and Plaintiff's second and third claims for relief.

II. Personal Involvement of Wellpath Defendants

“[S]tating a claim against a government official in his or her individual capacity for purposeful discrimination requires pleading that ‘each Government-official defendant, through the official's own individual actions, has violated the Constitution.'” Starr v. Baca, 652 F.3d 1202, 1206 (9th Cir. 2011) (quoting Iqbal, 556 U.S. at 678 (2009)). To state a claim for relief, “[a] plaintiff must allege facts, not simply conclusions, that show that an individual was personally involved in the deprivation of his civil rights.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998).

Section 1983 suits do not allow for the imposition of vicarious liability. Starr, 652 F.3d at 1206. However, “[a] defendant may be held liable as a supervisor under § 1983 if there exists either (1) his or her personal involvement in the constitutional deprivation, or (2) a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation.'” Id. at 1207 (quoting Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)). “The requisite causal connection can be established . . . by setting in motion a series of acts by others, or by knowingly refus[ing] to terminate a series of acts by others, which [the supervisor] knew or reasonably should have known would cause others to inflict a constitutional injury.” Id.

This analysis is different for Wellpath, a corporate entity. The standards for municipal liability in Monell v. Dep't of Soc. Servs. of N.Y.C., 436 U.S. 658 (1978) apply to private entities. See Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1139 (9th Cir. 2012). This distinction is not relevant to the present motion, however, because Wellpath is not liable under a respodeat superior theory under either standard, see id., and Plaintiff has failed to allege any facts regarding Wellpath apart from its organizational role.

Plaintiff has failed to allege any facts that would plausibly demonstrate that Defendants Wellpath, Shah, Ronan, and Weigand were personally involved in the alleged deprivations of Derby's constitutional rights. Indeed, Plaintiff has failed to allege any facts regarding those individual defendants apart from their organizational roles. Although Plaintiff presents some detailed allegations as to Derby's inadequate care and treatment, she fails to present any allegations linking that care and treatment to the individual Defendants' actions. Moreover, her “bald and conclusory allegations” that “the Defendants” caused Derby harm are insufficient to establish individual liability. See Hydrick v. Hunter, 669 F.3d 937, 941 (9th Cir. 2012). Plaintiff's § 1983 claims against Defendants Wellpath, Shah, Ronan, and Weigand should therefore be dismissed.

III. CCMH's Actions Under Color of State Law

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege facts plausibly showing that a defendant acted under color of state law when doing the challenged acts to violate the plaintiff's constitutional rights. Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327 (1986). “[P]rivate parties are not generally acting under color of state law.” Price v. State of Hawaii, 939 F.2d 702, 707-08 (9th Cir. 1991). A court must “start with the presumption that private conduct does not constitute governmental action.” Sutton v. Providence St. Joseph Medical Center, 192 F.3d 826, 835 (9th Cir. 1999) (citation omitted). To avoid dismissal, a plaintiff must plead facts sufficient to raise a reasonable inference that the defendants were state actors. Caviness v. Horizon Community Learning Center, Inc., 590 F.3d 806, 808, 818 (9th Cir. 2010).

“The Ninth Circuit generally employs four tests in determining when a private party's actions amount to state action: (1) the public function test; (2) the state compulsion test; (3) the government nexus test; and (4) the joint action test.” Bell v. Feuerstein, No. 3:17-CV-00075-YY, 2017 WL 1380436, at *1-2 (D. Or. Apr. 4, 2017) (citing Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir. 2008); Johnson v. Knowles, 113 F.3d 1114, 1118 (9th Cir. 1997)). Here, the parties agree that CCMH Defendants are private parties and that the public function test is applicable to CCMH Defendants' conduct. See Pl.'s Resp. CCMH & Karen Fortlander's Mot. Dismiss. (“Pl.'s Resp. CCMH Mot.”) 6, ECF 20; Def. CCMH & Karen Fortland's Reply Mot. Dismiss (“CCMH Reply”) 2, ECF 27.

Under the public function test, state action may be present if a private party or entity exercises powers traditionally reserved exclusively to the state. See Rendell-Baker v. Kohn, 457 U.S. 830, 842 (1982) (“[T]he question is whether the function performed has been ‘traditionally the exclusive prerogative of the State.'”) (emphasis in original, citation omitted); Kirtley, 326 F.3d at 1093 (“The public function test is satisfied only on a showing that the function at issue is ‘both traditionally and exclusively governmental.'”) (citation omitted).

Plaintiff fails to plead facts that would plausibly suggest that CCMH Defendants were state actors because they exercised powers traditionally reserved for the state. Plaintiff alleges that “[m]any times during [] Derby's incarceration from 2015 through 2017, [] Derby's parents and sister attempted to assist him in gaining access to mental health treatment. These efforts were repeatedly rebuffed by the Columbia County Jail, probation officers, and CCMH.” Compl. ¶ 52. This single allegation does not plausibly suggest that CCMH Defendants were exercising powers traditionally reserved for the state. To be sure, an entity or individual that contracts with a jail to provide treatment for adults in custody could perform a public function and act under color of law for purposes of § 1983. See, e.g., West v. Atkins, 487 U.S. 42, 56 n.15 (1988). But, because this Court must start with the presumption that CCMH Defendants were private actors, it is incumbent on Plaintiff to allege sufficient facts to plausibly demonstrate that CCMH Defendants were actually performing a public function during their course of conduct alleged in the complaint. Plaintiff's single, conclusory allegation regarding CCMH Defendants' role in providing mental health care at the Jail is insufficient. Accordingly, Plaintiff's § 1983 claims against the CCCM Defendants should be dismissed.

Plaintiff also alleges that CCMH Defendants were involved in a dispute as to whether Plaintiff would be released from Unity before the expiration of a five-day hold. Compl. ¶¶ 56-60. But Plaintiff does not allege that CCMH was exercising powers traditionally reserved for the state during these events. See Pl.'s Resp. CCMH Mot. 6

IV. Failure to Plead Notice for OTCA Claims

Under the OTCA, “[n]o action arising from any act or omission of a public body or an officer, employee or agent of a public body within the scope of ORS 30.260 to 30.300 shall be maintained unless notice of claim is given as required by this section.” ORS 30.275(1). “‘The pleading and proof of notice sufficient to satisfy the requirements of ORS 30.275 [are] a mandatory requirement and a condition precedent to recovery under the Oregon Tort Claims Act.'” Beaver v. Pelett, 299 Or. 664, 671 (1985) (en banc) (quoting Urban Renewal Agency v. Lackey, 275 Or. 35, 40 (1976)). A complaint that fails to allege that notice was given in accordance with the OTCA is subject to dismissal. Brinkley v. Oregon Health Scis. Univ., 94 Or.App. 531, 537 (1988).

Plaintiff concedes that she was required to allege that timely notice was provided under the OTCA but failed to do so. Pl.'s Resp. County Mot. 4-5, ECF 21. Plaintiff's concession should be accepted and Plaintiff's negligence claims against County Defendants should be dismissed.

On the other hand, it is not clear from the complaint that the negligence claims against Wellpath are subject to dismissal. Wellpath Defendants do not offer any argument as to how Wellpath, a private corporation, or its employees and officers could be considered public bodies subject to the requirements of the OTCA. See ORS 260(a) (defining “public body” subject to the OTCA). OTCA). Accordingly, Wellpath Defendants' motion should be denied insofar as it seeks dismissal of Plaintiff's negligence claims for failure to provide notice under the OTCA.

V. Statute of Limitations

The parties agree that there is a two-year statute of limitations for all Plaintiff's claims. Pl.'s Resp. County Mot. 7-8; Pl.'s Resp. CCMH Mot. 11-13; see ORS 30.275(9) (noting two-year statute of limitations for state-law claims against public body); ORS 12.110(1) (noting two-year statute of limitations for personal injury actions); Sain v. City of Bend, 309 F.3d 1134, 1139 (9th Cir. 2002) (explaining that Oregon's two-year statute of limitations for personal injury actions applies to actions under 42 U.S.C. § 1983); VanValkenburg v. Oregon Dep't of Corr., 3:14-cv-00916-Br, 2016 WL 2337892, at *8 (D. Or. May 2, 2016) (noting two-year statute of limitations for claims under the ADA). The parties also agree that Plaintiff's claims are untimely unless they are tolled by ORS 12.160(3), which tolls the two-year statute of limitations due to a “disabling mental condition.” Pl.'s Resp. County Mot. 7-8; Pl.'s Resp. CCMH Mot. 11-13. But, the parties disagree as to whether Plaintiff has alleged sufficient facts to demonstrate that ORS 12.160(3) could plausibly apply.

ORS 12.160(3) provides that the limitations period provided in ORS 12.110(1) may be tolled:

Subject to subsection (4) of this section, if a person is entitled to bring an action . . . and at the time the cause of action accrues the person has a disabling mental condition that bars the person from comprehending rights that the person is otherwise bound to know, the statute of limitation for commencing the action is tolled for so long as the person has a disabling mental condition that bars the person from comprehending rights that the person is otherwise bound to know.
ORS 12.160(3). These tolling provisions apply to Plaintiff's federal claims. Board of Regents v. Tomanio, 446 U.S. 478, 484 (1980).

A statute of limitations defense may be raised in a motion to dismiss “if the running of the statute is apparent on the face of the complaint.” Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980). “When a motion to dismiss is based on the running of the statute of limitations, it can be granted only if the assertions in the complaint, read with the required liberality, would not permit the plaintiff to prove that the statute was tolled.” Id. To read with the “required liberality, ” the court must consider the plaintiff's factual allegations in the “light most favorable” to her. Hemming v. Decibels of Oregon, Inc., No. 1:17-CV-01624-MC, 2018 WL 664792, at *7 (D. Or. Feb. 1, 2018) (citing Christopher v. Harbury, 536 U.S. 403, 406 (2002)). However, the plaintiff must assert factual allegations that are “enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555.

When read with required liberality, Plaintiff's complaint contains sufficient facts to demonstrate that Derby suffered from “a disabling mental condition that bar[ed] [him] from comprehending rights that [he] is otherwise bound to know.” See ORS 12.160(3). “[T]he extent of the disabling effects of a mental condition is normally a question of fact for the jury.” Gaspar v. Vill. Missions, 154 Or.App. 286, 292 (1998). Plaintiff's entire complaint is predicated on Defendants' alleged failure to appropriately treat, respond to, and accommodate Derby's serious mental illnesses, which Plaintiff alleges with particularity. See Compl. passim. Plaintiff makes repeated references to the serious symptoms of Derby's mental illness. Id. She also alleges that Derby was hospitalized for mental illnesses, has committed multiple acts of self-harm and crimes resulting from his mental illness, and was adjudicated guilty except for insanity. Compl. ¶¶ 39, 57, 65, 66, 69. To be sure, Plaintiff's complaint does not explicitly state that, due to his mental illness, Derby was “actually barred” from knowing that Defendants had harmed him, which Plaintiff is required to prove. See Gaspar, 154 Or.App. at 292. But that allegation can reasonably be inferred based on Plaintiff's citation to the applicable statute and her detailed factual allegations concerning Derby's mental illness. When read with the required liberality, Plaintiff's complaint plausibly states a claim for tolling based on Derby's mental illness under ORS 12.160(3). Accordingly, Defendants' Motions to Dismiss Plaintiff's complaint as untimely should be denied.

VI. Leave to Amend

Rule 15(a)(2) of the Federal Rules of Civil Procedure provides that the “court should freely give leave [to amend a pleading] when justice so requires.” A district court should apply Rule 15's “policy of favoring amendments with extreme liberality.” Price v. Kramer, 200 F.3d 1237, 1250 (9th Cir. 2000) (simplified). Where amendment would be futile, however, it is appropriate to dismiss the claim with prejudice. See Universal Mortg. Co. v. Prudential Inc. Co., 799 F.2d 458, 459 (9th Cir. 1986) (“Although leave to amend ‘shall be freely given when justice so requires,' it may be denied if the proposed amendment either lacks merit or would not serve any purpose because to grant it would be futile in saving the plaintiff's suit.”) (quotation omitted). Here, Defendants fail to offer any basis for their assertion that Plaintiff's claims should be dismissed with prejudice. There is no basis to conclude that an amendment would be futile in this case; indeed, Plaintiff may be able to cure the defects with respect to each of her claims. Accordingly, Plaintiff should be granted leave to amend her complaint.

RECOMMENDATION

Defendants' Motions to Dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6), ECF 13, 14, and 16, should be GRANTED in part and DENIED in part. The District Judge should:

(1) GRANT all Defendants' Motions to Dismiss Claim 1 (Counts I and II) and Claim 4, and DENY County Defendants' Motion to Dismiss Claim 1 (Count III), Claim 2, and Claim 3 as improper “shotgun pleadings”;

(2) GRANT Wellpath Defendants' Motion to Dismiss Claim 1 (the § 1983 claims) based on lack of personal involvement;

(3) GRANT CCMH Defendants' Motion to Dismiss Claim 1 (the § 1983 claims) due to the failure to allege that they were acting under color of state law;

(4) GRANT County Defendants' Motion to Dismiss Claim 4, and DENY Wellpath Defendants' Motion to Dismiss Claim 4 due to failure to allege tort claim notice;

(5) DENY all Defendants' Motion to Dismiss on the grounds that all Plaintiff's claims are barred by the statute of limitations; and

(6) DISMISS Plaintiff's complaint WITHOUT PREJUDICE and with leave to amend.

SCHEDULING ORDER

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

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


Summaries of

Derby v. Columbia Cnty.

United States District Court, District of Oregon
Feb 8, 2022
3:21-cv-1030-HL (D. Or. Feb. 8, 2022)
Case details for

Derby v. Columbia Cnty.

Case Details

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

Court:United States District Court, District of Oregon

Date published: Feb 8, 2022

Citations

3:21-cv-1030-HL (D. Or. Feb. 8, 2022)