Elden M. Rosenthal, OSB No. 722174
elden@rgdpdx.com
John T. Devlin, OSB No. 042690
john@rgdpdx.com
Rosenthal Greene & Devlin, P.C.
121 SW Salmon St., Suite 1090
Portland, OR 97204
Telephone: (503) 228-3015
Fascimile: (503) 228-3269
Of Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION

DEREK JOHNSON, personal representative
of KELLY CONRAD GREEN II, deceased;
KELLY CONRAD GREEN and SANDY Civil Action No. 6:13-cv-01855-TC
PULVER,
Plaintiffs,
v.
CORIZON HEALTH, INC., a Tennessee
Corporation; LANE COUNTY, an Oregon
county; DR. CARL KELDIE, an individual;
DR. JUSTIN MONTOYA, an individual;
VICKI THOMAS, an individual; KIRSTIN
WHITE, an individual; SHARON EPPERSON
(née FAGAN), an individual, and JACOB
PLEICH, an individual,

PLAINTIFFS’ MEMORANDUM
IN OPPOSITION TO MOTION
FOR SUMMARY JUDGMENT
BY CORIZON DEFENDANTS

Defendants.

///
///
///
PLAINTIFFS‟ MEMORANDUM IN OPPOSITION TO MOTION FOR SUMMARY
JUDGMENT BY CORIZON DEFENDANTS

 Kelly Green suffered severe head and spinal cord injuries in the Lane County Jail
arraignment courtroom on February 12, 2013. Mr. Green – who entered the jail suffering
an acute psychotic break – had not been screened or seen by any medical provider in the
thirteen hours since his booking. At the direction of Corizon medical staff, Mr. Green
was moved without any head or spinal cord precautions, his life threatening medical
condition was ignored, and he was allowed to lie unmoving in a jail cell for over five
hours.
Corizon, and its agents, now ask this Court to grant them summary judgment. The
Corizon defendants falsely claim as “undisputed” facts that are very much in dispute.
Their motions should be denied.
FACTS
Because the Corizon defendants (hereinafter “Corizon”) laid out an incomplete
and inaccurate statement of “undisputed facts,” plaintiffs are compelled to provide the
Court with a detailed recitation of the factual record.
There is sufficient evidence to allow the jury to conclude:
 Corizon was required by its contract with Lane County, by national jail
standards and by Constitutional principles to perform an intake screening
when Mr. Green, suffering a psychotic break, was admitted to the Lane
County Jail on the evening of February 11, 2013. No screening was
performed.
 Corizon medical staff recognized that Mr. Green was seriously injured and
needed to be hospitalized when he was examined in the courtroom shortly
after 10:30 AM on February 12, 2013. Despite this recognition, Mr. Green
was not sent immediately to the hospital.

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  Mr. Green was manhandled by Lane County deputies and Corizon staff
between the time he left the courtroom and when he was finally placed in a
segregation cell shortly after 11:30 AM.
 Mr. Green lay unattended, unmoving, in his own feces, on his jail bed from
shortly after 11:30 AM until shortly after 3:30 PM. This was despite
repeated efforts by Lane County deputies to advise Corizon staff that Mr.
Green was not moving, and despite a visit to the cell by a Corizon mental
health specialist.
 When Corizon finally admitted that Mr. Green had suffered a spinal cord
injury, and while Mr. Green was suffering from spinal cord shock and was
in critical condition, he was abandoned by the physician assistant who was
the primary Corizon care giver, and was not attended to by EMTs for
another hour.
 Corizon has a policy of delaying necessary medical treatment until a Lane
County inmate can be discharged from the jail, thereby saving Corizon
from its contractual obligation to pay for necessary medical care.
 Corizon employees attempted to cover up their conduct in this case.
 Corizon management ratified the conduct of the Corizon employees
involved in the “care” of Mr. Green.
What follows is a detailed statement of the events of February 11th and 12th.
A.

Corizon Agrees to Provide Medical and Mental Health Services at the
Lane County Jail.

In 2012, Corizon and Lane County contracted for Corizon to provide medical and
mental health services at the Lane County Jail.1 Depending on the inmate population,
Lane County agreed to pay Corizon approximately $2,000,000 to $2,800,000 per year. 2

1

Dep. Ex. 36 (attached as Ex. 48 to Declaration of John T. Devlin in Support of Plaintiffs‟
Memorandum in Opposition to Motion for Summary Judgment by Defendants Corizon et al.
(“Devlin Decl.”)).
2
Id. at 51.
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 The Health Services Administrator (“HSA”) is the senior Corizon administrative
position at the Lane County Jail. Defendant Vicki Thomas served as the Lane County
HSA from mid-December 2012 to mid-March 2013.3 One of her duties was to supervise
the nurses at the Lane County Jail.4 She testified that more than one nurse told her that
there were not enough nurses at the jail.5 Thomas did not agree with those complaints
and did not do anything in response to them.6
Defendant Justin Montoya, M.D., has been the Corizon Site Medical Director
since October 2012.7 In February 2013, he was working for Corizon four hours per
week, plus on-call hours and attendance at additional meetings.8
Defendant Kris White has worked as a physician‟s assistant at the Lane County
Jail since October 2012.9 She had been fired from her previous job.10 In February 2013,
she was working 16 to 20 hours per week for Corizon.11 One of her shifts overlapped
with Dr. Montoya‟s time in the jail; during the other shifts, she was the senior Corizon
medical person in the jail.12
Defendant Jacob Pleich has worked as a mental health specialist at the Lane

3

Thomas Dep. (attached as Exhibit 36 to Devlin Decl.) at 24.
Id. at 39.
5
Id. at 56-57.
6
Id.
7
Montoya Dep. (attached as Exhibit 23 to Devlin Decl.) at 17. Before he was hired, there was
no Corizon medical director at the Lane County Jail. Deierling Dep. (attached as Exhibit 9 to
Devlin Decl.) at 19.
8
Montoya Dep. at 12.
9
White Dep. (attached as Exhibit 39 to Devlin Decl.) at 6.
10
Id. at 15.
11
Id. at 54.
12
Id. at 28.
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4

 County Jail since June 2012.13 He had been fired from a previous job as a mental health
therapist.14 He explained that with only four hours of regular psychiatric coverage and no
on call psychiatric coverage, mental health coverage at the jail was inadequate. 15 Mr.
Pleich believed that he had too much work to do and too many people to care for.16
B.

Kelly Green’s Life Before February 11, 2013.

Kelly Green was born on May 21, 1985.17 He had a typical childhood, playing
football and attending school.18 As a teenager, he was diagnosed as suffering from
paranoid schizophrenia.19
In the fall of 2011, Kelly Green was involuntarily committed by his parents to a
mental health facility for nine months.20 After his discharge, although arrangements were
made for him to live in a group home setting, he chose to live on the streets.21
In August 2012, Mr. Green moved to Eugene to live with his father.22 Although
his father insisted that Mr. Green see a mental health practitioner and resume taking
medications, Mr. Green refused and soon began to again live on the streets, visiting his

13

Pleich Dep. (attached as Exhibit 30 to Devlin Decl.) at 27-28.
Id. at 17-18.
15
Id. at 37.
16
Id. at 45-46. Richard Klotz, who held the same job when Lane County ran the medical and
mental health services at the jail, testified that Corizon “had expectations of seeing more people
than I knew how to see.” Klotz Dep. (attached as Exhibit 20 to Devlin Decl.) at 22. When Mr.
Pleich spoke to Mr. Klotz after taking the job, he learned that he was seeing twice as many
people per day as Mr. Klotz had done. Pleich Dep. at 47-49.
17
Green Dep. (attached as Exhibit 15 to Devlin Decl.) at 26.
18
Pulver Dep. (attached as Exhibit 31 to Devlin Decl.) at 37.
19
Green Dep. at 57-59.
20
Id. at 88-89.
21
Pulver Dep. at 23-24; Green Dep. at 134-145.
22
Green Dep. at 102.
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14

 father and grandmother regularly.23 In September 2012, Mr. Green agreed to begin
treatment.24 His father and grandmother took him to Sacred Heart Hospital, where he
presented as suicidal and was admitted.25 After discharge, Mr. Green once again chose to
live on the streets, visiting his father or grandmother every few days.26
Mr. Green was arrested and taken to the Lane County Jail on December 19,
2012.27 This was the first time he had ever been arrested.28 During his confinement, Mr.
Green displayed numerous signs of severe mental illness, including talking nonsense and
gibberish, talking with people who were not present, and pacing around his cell. 29 His
grandmother called the jail to let them know that he was schizophrenic.30 Mr. Green was
released on January 10, 2013.31
C.

Kelly Green is Arrested and Booked Into the Lane County Jail.

The evening of February 11, 2013, someone at a convenience store reported that
Mr. Green was acting strangely and talking about suicide.32 A Eugene police officer
responded and arrested Mr. Green on outstanding warrants related to the December
incident.33 The officer‟s report states: “Green stated he talked about killing himself but

23

Green Dep. at 101-102; Pulver Dep. at 53-54.
Green Dep. at 104-105.
25
Id. at 105-106.
26
Id. at 112-115.
27
Dep. Ex. 3 (attached as Exhibit 41 to Devlin Decl.).
28
Kelly Green Dep. at 34-35; Pulver Dep. at 31-32.
29
Dep. Ex. 26 (attached as Exhibit 47 to Devlin Decl.).
30
Id.
31
Dep. Ex. 3.
32
Dep. Ex. 40 (attached as Exhibit 49 to Devlin Decl.); Hubbard Dep. (attached as Exhibit 17 to
Devlin Decl.) at 6-8.
33
Hubbard Dep. at 9.
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24

 he was too important to actually do it.”34
The officer took Mr. Green to the Lane County Jail, where he was booked at 9:15
PM.35 The officer‟s booking form states that Mr. Green may be suicidal, and that he was
a paranoid schizophrenic.36
Keri Nelson was the Lane County booking deputy who dealt with Mr. Green
when he was brought to the jail.37 Nelson made the following notes about Mr. Green:
“Very agitated, talks to himself and inanimate objects. Curses continuously. Barely
made it through the booking process . . .”38 Mr. Green was suffering from a psychotic
break, and was in dire need of medical attention.39
Based on his presentation, Nelson placed Mr. Green in a cell by himself.40 On an
“Initial Assessment Instrument,” she noted that Mr. Green displayed unusual behavior,
was anxious and was agitated. She wrote: “May be bipolar/schizophrenic . . . . no meds .
. . . . talks to himself, cursing continuously, not making sense, seems very agitated.”41
Nelson testified that this form went immediately to the Corizon medical staff.42
D.

Kelly Green Runs Into a Wall in the Courtroom (10:43 AM).

After spending the night alone in a cell, Mr. Green was taken with other inmates to

34

Dep. Ex. 41 (attached as Exhibit 50 to Devlin Decl.); Hubbard Dep. at 11.
Dep. Ex. 1 (attached as Exhibit 40 to Devlin Decl.).
36
Dep. Ex. 6, at 2 (attached as Exhibit 43 to Devlin Decl.).
37
Nelson Dep. (attached as Exhibit 25 to Devlin Decl.) at 9-10.
38
Dep. Ex. 26, at 2.
39
Declaration of Amanda Ruiz, MD, in Support of Plaintiffs‟ Memorandum in Opposition to
Corizon‟s Motion for Summary Judgment (“Ruiz Declaration”), ¶ 3a.
40
Nelson Dep. at 26-27.
41
Dep. Ex. 5, at 2 (attached as Exhibit 42 to Devlin Decl.).
42
Nelson Dep. at 63.
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35

 a courtroom located in the jail. The officers who were managing the inmates testified
that he was acting “wound up,” “disruptive,” “agitated and verbal.”43
During his arraignment, the judge told Mr. Green that he was going to be held for
a couple of days.44 Mr. Green became upset, then “bent over and ran into the wall at that
point head first.”45 Tracy Tomseth, the judge‟s judicial assistant, said that it sounded
“like you‟re throwing a watermelon at the wall.”46 She estimated that Mr. Green ran
approximately 15 feet before striking the wall.47 The time was approximately 10:43
AM.48
E.

Corizon Medical Staff Responds.

Corizon medical staff were called to the courtroom.49 Physician Assistant Kris
White, Nurse Sharon Epperson (née Fagan), and CMA Jona Bourgard responded. White
was in charge.50
The only written record in Mr. Green‟s Corizon medical chart of what occurred in
the courtroom is an untimed progress note written by White.51 She also offered her
version of events during her deposition.
White testified that Mr. Green was conscious and bleeding when she entered the

43

Dep. Ex. 96 (attached as Exhibit 57 to Devlin Decl.); Dep. Ex. 97 (attached as Exhibit 58 to
Devlin Decl.).
44
Tomseth Dep. (attached as Exhibit 37 to Devlin Decl.) at 16-17.
45
Id. at 17.
46
Id. at 20-21.
47
Id. at 17.
48
Dep. Ex. 15 (attached as Exhibit 44 to Devlin Decl.).
49
Peters Dep. (attached as Exhibit 28 to Devlin Decl.) at 26.
50
White Dep. at 76; Thomas Dep. at 144-145.
51
Dep. Ex. 48, at 1-2 (attached as Exhibit 52 to Devlin Decl.).
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 courtroom.52 She claimed that she performed a neurological exam “from head to toe” on
Mr. Green.53 According to White, Mr. Green “could follow all the directions. He had
full strength pushing, pulling.”54

She examined his legs – “He could push against

resistance with his feet. He could pull his toes toward his nose. I kind of tickled the back
of his legs and his ankles. He could feel that.”55 She went even further, stating: “At one
point I had to ask him to hold still. He wanted to put his leg up and cross it.”56 She
claimed to perform other tests, such as a deep tendon reflex test and a Babinski test.57
She checked his pelvis by rocking it back and forth.58 White noted that Mr. Green‟s
pupils were only slightly reactive to light, an abnormal finding that can be indicative of a
head injury.59 She acknowledged that Mr. Green‟s verbal responses to her questions
were not normal, and that he had possibly suffered a subdural hematoma or an
intracerebral bleed, which can be fatal unless promptly treated.60
Much of White‟s testimony is contradicted by multiple witnesses.

Epperson

claims to have no memory that a neurological exam was performed.61 Bourgard testified
that White never left Mr. Green‟s head.62 Judicial assistant Tomseth testified that Mr.

52

White Dep. at 75.
Id. at 80.
54
Id.
55
Id. at 81.
56
Id.
57
Id. at 81-82.
58
Id. at 87-88.
59
Id. at 83-84.
60
Id. at 100-101.
61
Epperson Dep. (attached as Exhibit 12 to Devlin Decl.) at 98-100.
62
Bourgard Dep. (attached as Exhibit 4 to Devlin Decl.) at 42-43.
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53

 Green could not move, and that no neurological tests were performed.63 White did not
state in her chart note that she performed a neurological exam, nor did she include many
of the details that she mentioned in her deposition.64
No cervical collar or backboard was available to move Mr. Green.65 Lane County
deputies Davis, Dodds and Rahm all recall that White was asked whether Mr. Green
should be taken to the hospital, and that White said it was not necessary. 66 White ordered
Mr. Green be taken by wheelchair to the medical clinic. Deputy Rahm described the
scene:
Sergeant Davis said, “If he‟s not going out in an ambulance, can he be
moved? Can you do it in medical, because I‟d like this room cleared so
court can resume.”
Kris said, “Oh yeah, he can be moved.”
And then I asked, “Shouldn‟t we put him on a board or at least put a C
collar on him. He ran and hit the wall pretty hard obviously by the wound
on his head. And Kris again bent down and checked his neck and said,
“He‟s” – “He‟s fine. He can be moved in a wheelchair.”67
No Corizon medical person told the Lane County deputies to take any precautions with

63

Tomseth Dep. at 28-29.
Dep. Ex. 48, at 1-2.
65
Balcom Dep. (attached as Exhibit 1 to Devlin Decl.) at 28; Rahm Dep. (attached as Exhibit 32
to Devlin Decl.) at 15-17; Dodds Dep. (attached as Exhibit 10 to Devlin Decl.) at 16-17; Davis
Dep. (attached as Exhibit 8 to Devlin Decl.) at 16; Peters Dep. at 35.
66
Rahm Dep. at 13; Dodds Dep. at 18-19; Davis Dep. at 14-15. Rahm said that “[s]ergeants
asked several times if he needed to go out to the hospital, and they were assured that he could be
treated at the jail.” Rahm Dep. at 19. She specifically recalled White saying: “I‟ve sewn up
worse than this.” Id. at 20
67
Rahm Dep. at 13-14; see also Peters Dep. at 32-43.
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 Mr. Green‟s neck.68
Mr. Green was lifted under the armpits by two deputies and put into a
wheelchair.69 Sgt. Balcom described Mr. Green as “kind of dead weight.”70 No one held
his head or neck during this process.71 When a deputy tried to move the wheelchair
forward, Mr. Green slid out of the chair.72 Two deputies grabbed Mr. Green “under the
arms again and pulled him back.”73 The deputy who transported Mr. Green in the
wheelchair held onto his sweatshirt, and hooked it over the top of the handle to keep him
in the chair.74 Mr. Green‟s feet “were dragging on the floor.”75
White now claims that she told Thomas and Sgt. Balcom in the courtroom that Mr.
Green needed to go to the hospital because she was concerned about a head injury. 76 She
now alleges that she told them in the courtroom: “It doesn‟t have to be Code 3, lights and
sirens right this minute, but it needs to be within the hour.”77 What White wrote in her
chart note, however, suggests she did not order an immediate trip to the hospital. In her
chart note, she orders that Mr. Green should receive a neurological check every 1-2
68

Dodds Dep. at 21-22; Dotson Dep. (attached as Exhibit 11 to Devlin Decl.) at 26; Rahm Dep.
at 13-16, 23.
69
Balcom Dep. at 31; Davis Dep. at 19; Peters Dep. at 36; Tomseth Dep. at 31.
70
Balcom Dep. at 32.
71
Id. at 31-32; Peters Dep. at 38.
72
Balcom Dep. at 32; Peters Dep. at 37; Rahm Dep. at 20-21.
73
Balcom Dep. at 34.
74
Id. at 35-36; Dotson Dep. at 23-24.
75
Balcom Dep. at 37; Dotson Dep. at 26; Tomseth Dep. at 31.
76
White Dep. at 91-93. Thomas denies that she was in the courtroom. Thomas Dep. at 106.
Sgt. Balcom testified about a conversation he had with Thomas in the medical clinic. Balcom
Dep. at 51-52. He did not testify about any conversations with White regarding Mr. Green
needing to go to the hospital. No other witness has testified that White told anyone in the
courtroom that Mr. Green should be taken to the hospital.
77
White Dep. at 91-92.
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 hours.78 And she suggests a “courtesy drop” at the hospital after Mr. Green is released
from jail: “Pt to be released. Will recommend courtesy drop at the ER for further/cont
eval.”79
Asked why she did not call for EMTs to come to the courtroom, she replied: “My
clinical suspicion for a severe injury was low.”80 She testified that Corizon asks PAs not
to send someone emergently to the hospital if their clinical suspicion is low. 81 Multiple
other witnesses testified that they believed Mr. Green should have been taken by
ambulance to the hospital from the courtroom.82
F.

Kelly Green Is Taken to the Medical Clinic (10:55 AM).

Plaintiffs have provided the Court with excerpts from various jail video camera
recordings.83 Although the excerpts last approximately 90 minutes, plaintiffs respectfully
urge the court to watch the video. Many of the events described below are contained on
the video, and the video is far more eloquent than plaintiffs‟ counsel.
At 10:55 AM, Mr. Green was taken out of the courtroom to the Corizon medical

78

Dep. Ex. 48, at 1-2. Those checks were never done. Dep. Ex. 132, at 5 (attached as Exhibit 65
to Devlin Decl.).
79
Dep. Ex. 48, at 2; White Dep. at 124. Sgt. Balcom explained that if the person is injured or
“can‟t make it to the hospital themselves, because we are located quite a ways from the hospital,
we‟ll drive them to the hospital and walk them into the ER.” Balcom Dep. at 52. He
acknowledged that the Sheriff‟s Office deputy would “pretty much walk away” and would not
wait to see what the hospital was going to do. Balcom Dep. at 52-53. Nurse Epperson said: “It‟s
a courtesy drop. It‟s up to [Mr. Green] if he wants to be seen.” Epperson Dep. at 110
80
White Dep. at 99.
81
White Dep. at 101.
82
Tomseth Dep. at 29 (“[T]hey probably should have just called 9-1-1 and have dealt with him
that way.”); Rahm Dep. at 23-24 (“It was a pretty traumatic injury. It takes a lot to bust a head
open that hard.”).
83
See Devlin Decl., Ex. 71.
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 office located in the jail building.84 He remained in the wheelchair while White sutured
his scalp wound.85 Epperson held up Mr. Green‟s head during this process. 86 While
being sutured, Mr. Green lost bowel control.87 Although White admitted that loss of
bowel control can be a sign of spinal cord injury, no neurological check was performed in
the clinic, and White did not even note the loss of bowel control in her chart entry. 88 No
one cleaned Mr. Green.
Thomas first saw Mr. Green in the medical clinic.89 She looked at his head
wound, which was “pretty significant.”90 She testified that she told Sgt. Davis that Mr.
Green “needed to go to the hospital right away” because he had a head injury.91
According to Thomas, Sgt. Davis told her that “we‟ll get him released within the hour,
and we‟ll make sure he gets to the hospital.”92 She “verified that he said within the hour,
and I also said, and it needs to be by ambulance.”93
Directly contradicting Thomas, Sgt. Balcom testified that he asked Thomas
whether Mr. Green should go to the hospital, and that she said it was not necessary.94
Epperson testified that she did not believe that Mr. Green needed to go to the

84

See Devlin Decl., Ex. 71 (video clips #1 through #6).
Balcom Dep. at 42.
86
Id. at 43.
87
White Dep. at 104-106.
88
Id. at 107. White said that Mr. Green was “still moving his legs” and “kind of kicking around”
in the medical clinic. Id. at 107-108.
89
Thomas Dep. at 108-109.
90
Id. at 111.
91
Id. at 111-112.
92
Id. at 114.
93
Id. at 115.
94
Balcom Dep. at 51-52, 85.
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 hospital, because she believed that he was faking his injuries and his head laceration had
been repaired.95 Epperson did not recall any discussion by White that Mr. Green needed
to go to the hospital.96
Jacob Pleich, the Corizon mental health specialist working at the jail, testified that
someone called him to the medical clinic “because of the fact that he was a mentally ill
individual.”97 He did not get a chance to speak with Mr. Green in the medical clinic.98
Pleich testified that there was “high potential” that Mr. Green might have a neurological
or spinal injury.99
Dr. Montoya does not recall hearing anything about Mr. Green while he was in the
jail.100 If, in fact, White or Thomas wanted Mr. Green to go to the emergency room
within an hour, then they were required by Corizon to contact Montoya.101
G.

Kelly Green Is Taken to the Segregation Cell (11:29 AM).

The jail video shows Mr. Green being wheeled from the medical clinic to a
segregation cell at 11:29 AM.102 Once again, he appears limp with his head hanging to
one side and his feet dragging. The segregation cell was 20-30 feet from the Corizon

95

Epperson Dep. at 110.
Epperson Dep. at 111-112.
97
Pleich Dep. at 89.
98
Pleich Dep. at 89.
99
Pleich Dep. at 109-110, 113.
100
Montoya Dep. at 60-61.
101
The contract between Corizon and Lane County states that the Site Medical Director must
“carefully review all ER trips and referrals for appropriateness and necessity prior to admission.”
Dep. Ex. 36, at 111. In an emergency, the transport would not be delayed but “would be
reported to the Site Medical Director for follow up review.” Dep. Ex. 36, at 111.
102
See Devlin Decl., Ex. 71 (video clips #7 through #10).
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96

 medical office.103 In the segregation cell, there is constant video surveillance.
Mr. Green is asked to remove his clothing, and he says he cannot. He is then
roughly undressed, his head rolling from side to side. He ultimately falls out of the
wheelchair before being placed naked on the jail bunk, lying in his own feces. Jacob
Pleich and another Corizon employee come over to the segregation cell because of the
disruption. The deputies leave Mr. Green in his cell at 11:34 AM.
Sgt. Balcom testified that he believed Mr. Green was limp and uncooperative
because “he had been evaluated by the nurses.”104 He later agreed that he was “relying
upon the Corizon‟s nursing staff‟s assessment that [Mr. Green] was neurologically
intact.”105
Deputy Burnette was assigned to watch Mr. Green.106 At 12:17 PM, Burnette
spoke with Mr. Green and said that he would ask the medical staff to come see him.107
At 1:35 PM, Burnette again spoke with Mr. Green and said that he would ask the medical
staff to come see him.108
Following each of those conversations with Mr. Green, Burnette called the
Corizon jail medical office to report that Mr. Green was not moving. He described those
phone calls in a memo written the following day:

103

Burnette Dep. (attached as Exhibit 6 to Devlin Decl.) at 13. Deputy Correll, who also worked
the seg/med section, said that the walk from Mr. Green‟s cell to the medical office took “ten
seconds.” Correll Dep. (attached as Exhibit 7 to Devlin Decl.) at 18-19.
104
Balcom Dep. at 66, 71.
105
Id. at 97.
106
Dep. Ex. 18 (attached as Exhibit 45 to Devlin Decl.).
107
See Devlin Decl., Ex. 71 (video clip #11).
108
See Devlin Decl., Ex. 71 (video clip #12).
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 After observing him for approximately 10 minutes I noticed he was not
moving from the position he had been left in (on back, arms folded across
chest, legs straight).
I called medical and informed them of this and asked how long I should
allow him to remain unmoving in this position until I again notified them.
They asked if he was breathing. I informed them he was breathing and had
spoken to me. Medical stated they would be back to evaluate him later in
the day, but as long as he was breathing there was no immediate concern. *
**
At 1345 hours I again called medical and informed them Green still had not
moved out of the same general position he had been left in. Approximately
2 hours had passed since my first call. Medical again asked if he was
breathing. Prior to the call I had spoken with Green and passed along that
he was breathing and holding conversations.109
Burnette testified that he spoke with a female nurse both times.110 The only female nurse
working the dayshift was Epperson.111
H.

Jacob Pleich Visits Kelly Green in the Segregation Cell (2:28 PM).

At 2:28 PM, the Corizon mental health specialist, Jacob Pleich, came into the cell
to interview Mr. Green. Pleich recalled that Burnette asked him to check on Mr. Green
because “they were trying to figure out if this was Mr. Green feigning paralysis or if they
really needed to get him out.”112 Pleich said that he “was concerned that [Mr. Green] had
some significant medical damage.”113 He spoke with Mr. Green for approximately six
minutes.114

109

Dep. Ex. 18.
Burnette Dep. at 64, 92.
111
Dep. Ex. 89 (attached as Exhibit 56 to Devlin Decl.); Epperson Dep. at 118 (Epperson‟s name
at the time was Fagan).
112
Pleich Dep. at 85.
113
Pleich Dep. at 120.
114
See Devlin Decl., Ex. 71 (video clip #14).
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 Pleich completed a Corizon form for Mr. Green‟s medical chart following this
visit.115 On that form, Pleich noted that Mr. Green was motionless and saying that he
could not move.116 Pleich‟s plan was that Mr. Green should remain on suicide watch
status and receive a psychiatry referral.117 There is no mention of any possible medical
injury.
After his visit with Mr. Green, Mr. Pleich went to the medical clinic. Here is how
he described what happened next:
I did hear that the conversation was already in progress about getting him
out to the hospital, but I don‟t remember who that was coming from. I
don‟t remember if it was combination of the HSA, Vicki Thomas, at the
time, or if it was other medical staff, but I know he was the talk of the clinic
because of the severity of what had happened.118
I.

Corizon Medical Staff Evaluates Kelly Green (3:35 PM).

At approximately 3:30 p.m., Deputy Correll relieved Deputy Burnette. As he was
leaving for the day, Burnette went out of his way to go to the Corizon medical office and
inform them about Mr. Green‟s condition.119 Burnette testified that he again spoke with a
nurse, who said that “they were trying to get around to [Mr. Green].”120
Correll checked on Mr. Green,121 then walked to the Corizon medical office and
summoned two Corizon nurses.122

115

At approximately 3:35 PM, Epperson and Leah

Dep. Ex. 58 (attached as Exhibit 54 to Devlin Decl.).
Id.
117
Id.
118
Pleich Dep. at 105-106.
119
Burnette Dep. at 68-71; Dep. Ex. 18.
120
Burnette Dep. at 70.
121
See Devlin Decl., Ex. 71 (video clip #16).
122
Correll Dep. at 18-20.
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 Smith, a nurse who had just started her shift, examined Mr. Green in his cell.123 Smith
returned to the Corizon office and summoned White.124
White arrived in the cell at approximately 3:41 PM. She examined Mr. Green. On
the video she is heard saying that he “needs to go” to the hospital, and also “I was under
the impression he was going to be released within an hour or two. * * * We were going
to have you guys do a drop.” White leaves the cell at approximately 3:45 PM.
During her deposition, White said she made the decision to send Mr. Green to the
hospital “[p]robably within about 15 seconds of walking in and doing a quick neuro
exam.”125 At that point, she was worried about a spinal cord injury.126 On the video you
can hear her ask Mr. Green, incredibly, to move his head as far as possible. She said that
the situation was “very urgent” and that she told everyone: “He needs to go now, Code
3.”127

White did not give any instructions about immobilizing Mr. Green‟s head,

although she admitted: “I should have.”128
Smith returned to the cell to take Mr. Green‟s vital signs a few minutes later.129
His blood pressure was 84/62, with a pulse of 42.130 These vital signs are indicative of

123

Smith Dep. (attached as Exhibit 34 to Devlin Decl.) at 15-22; see also Devlin Decl., Ex. 71
(video clip #17).
124
Smith Dep. at 23.
125
White Dep. at 129.
126
White Dep. at 130.
127
White Dep. at 131-132. The video does not show White making that statement to anyone. In
addition, White‟s entry in the medical chart simply states: “Diminishing sensation and strength is
concerning for possible cervical injury. Will send to ER for further evaluation.” Dep. Ex. 48, at
3-4.
128
White Dep. at 133-134.
129
Smith Dep. at 24-27; see also Devlin Decl., Ex. 71 (video clip #18).
130
Dep. Ex. 48, at 3.
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 severe shock, a potentially fatal complication of a spinal cord injury. 131 Smith left the
cell at 3:53 PM and reported these vital signs to White.132 Given his vital signs and other
problems, White believed that Mr. Green was in neurogenic shock.133
Four minutes later, at 3:57 PM., White clocked out from the jail.134
Epperson contacted Thomas and told her that she “needed to go to medical
segregation with her because Mr. Green was laying in the cell.”135 Thomas and Epperson
were in Mr. Green‟s cell from 4:15 PM to 4:30 PM. Thomas testified that, when she
went to the cell, she turned to a deputy and said that he needed to call an ambulance right
away.136 Thomas testified that Mr. Green‟s medical situation was an emergency because
“there was too much time between the incident and when I found him in the cell. * * *
No one had looked at him. There had been no x-rays, no scans, no neurology consult, no
orthopedic consult. Nothing.”137
The video shows that Epperson and Thomas spent fifteen minutes cleaning up Mr.
Green.138 No head or neck precautions were taken. An ambulance was not called until
4:33 PM.139 The jail logbook indicates that the initial call was a Code 1, which is “just

131

Montoya Dep. at 83-84.
Smith Dep. at 27.
133
White Dep. at 131.
134
Dep. Ex. 109 (attached as Exhibit 60 to Devlin Decl.).
135
Thomas Dep. at 125.
136
Thomas Dep. at 126. The jail video does not show this comment.
137
Thomas Dep. at 131-132.
138
See Devlin Decl., Ex. 71 (video clip #19).
139
Dep. Ex. 47 (attached as Exhibit 51 to Devlin Decl.).
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 drive at normal.”140 Because the ambulance call was a Code 1, EMTs did not arrive until
approximately 4:49 PM.141
J.

Kelly Green Is Treated by Paramedics (4:49 PM).

When the EMTs arrived, one of them immediately immobilized Mr. Green‟s
head.142 One of the EMTs said that it was pretty obvious to him within a few minutes
that there was a probable spinal cord injury, especially because Mr. Green‟s vital signs
were pointing to neurogenic shock.143
None of the Corizon employees who treated Mr. Green earlier in the day –White,
Thomas, Epperson, or Pleich – spoke with the EMTs when they arrived at the jail. White
had left the jail by that point. Smith was the only Corizon liaison for the EMTs. On the
video, it is apparent that she cannot provide the EMTs with any useful information. At
one point, she tells them: “The report was kind of poor.”
Mr. Green left the Lane County Jail with the EMTs at 5:20 PM. 144 He arrived at
RiverBend Hospital at 5:31 PM.145 He was undergoing spinal surgery by 7:46 PM.146 He
had suffered a burst fracture of his C-4 vertebra that compromised, but did not sever, his

140

Dep. Ex. 20 (attached as Exhibit 46 to Devlin Decl.); Mitchell Dep. (attached as Exhibit 22 to
Devlin Decl.) at 10.
141
Dep, Ex, 47.
142
Begines Dep. (attached as Exhibit 2 to Devlin Decl.) at 9-10; see Devlin Decl., Ex. 71 (video
clip #20).
143
Begines Dep. at 11-12.
144
Dep. Ex. 47.
145
Dep. Ex. 47.
146
See Devlin Decl., Ex. 67.
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 spinal cord at the C-4 level.147
Dr. Jennifer James, an expert in spinal cord injuries, explains in her Declaration
that Mr. Green‟s “medical outcome would have been significantly improved” if his neck
had been stabilized and he had been promptly taken to the hospital. She states that Mr.
Green would not have been rendered a ventilator dependent high quadriplegic, and would
not have died as a result of complications from ventilator dependence, if he had been
promptly and appropriately treated.148
K.

Kelly Green’s Medical Chart Has Been Altered.

Mr. Green‟s Corizon medical chart has been altered in three ways.
First, the Corizon medical chart for Mr. Green does not contain a copy of the
Emergency Room Referral Form filled out by Smith before Mr. Green was transported.149
A copy of that form was found in Mr. Green‟s RiverBend hospital chart.150 But the
Corizon medical chart contains a different Emergency Room Referral Form, one prepared
by White, a form that puts an inaccurate and relatively benign spin on the events leading
up to Mr. Green‟s hospitalization.151
Second, Epperson testified that she prepared a chart note and placed it in Mr.

147

Declaration of Jennifer James, MD, in Support of Plaintiffs‟ Memorandum in Opposition to
Motion for Summary Judgment of Defendants Corizon et al. (“James Declaration”), ¶ 2.
148
Id.
149
Dep. Ex 132.
150
Dep. Ex. 125 (attached as Exhibit 63 to Devlin Decl.).
151
Dep. Ex. 57 (attached as Exhibit 53 to Devlin Decl.). White testified that she completed that
form after seeing Mr. Green in the afternoon and before the EMTs arrived. White Dep. at 147152.
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 Green‟s chart.152 Epperson‟s chart note has disappeared.153
Third, White made what purports to be a chart entry about her contact with Mr.
Green in the afternoon. This entry is untimed but it is dated February 12, 2013. 154
White, however, could not have made this entry on that date, because it appears after the
entry written by Smith that is timed at 5:30 PM.155 Smith testified that White was no
longer at the jail when she made her entry. 156 Corizon time records show that White
clocked out at 3:57 PM.157
A jury could infer that on the morning of February 13, 2013, White began a coverup by destroying Smith‟s form and Epperson‟s chart note, preparing her own Emergency
Room Referral form, and writing a backdated chart note about her treatment of Mr.
Green. By that point, White knew that a “pretty bad situation” had taken place.158
L.

Corizon Does Nothing in the Immediate Aftermath of the Incident.

White testified that she spoke with Dr. Montoya the day after the incident.159 His
only criticism of her was that she did not time her chart note.160
Lt. Larry Brown, the Lane County Sheriff‟s Office employee who managed the
Corizon contract, testified that he spoke with Thomas in the days after Mr. Green was

152

Epperson Dep. at 84-87.
Dep. Ex. 48.
154
Dep. Ex. 48, at 3-4.
155
Dep. Ex. 48, at 3.
156
Smith Dep. at 15.
157
Dep. Ex. 109.
158
White Dep. at 160-161.
159
Id. at 58-60.
160
Id. at 60.
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153

 injured.161 Brown testified that he asked Thomas why Mr. Green was not sent to the
hospital sooner.162 He said that Thomas responded that “they didn‟t think that he was
paralyzed * * *.”163
Although Corizon requires the HSA to file a Sentinel Event notification with
corporate headquarters within 48 hours after a serious event, no notification was made.164
Corizon headquarters did not learn about what happened to Mr. Green. The cover-up was
complete.
M.

Corizon Conducts a Belated Sentinel Event Investigation.

On April 1, 2013, plaintiff‟s counsel notified Corizon that Mr. Green intended to
file a lawsuit related to the events of February 11 and 12, 2013.165 As a result of this
notification, the Sentinel Event process was initiated on April 12.166
Dr. Montoya was directed to prepare a Sentinel Event Report, which he completed
on April 23, 2013.167 Montoya did not interview anyone from Corizon other than White,
did not interview anyone from the Lane County Sheriff‟s Office, did not review the
written statements prepared by the Lane County employees, and did not look at video
recorded by the jail camera system.168
It is clear that Montoya‟s investigation was woefully inadequate. He did not

161

Brown Dep. (attached as Exhibit 5 to Devlin Decl.) at 55-59; Thomas Dep. at 149.
Brown Dep. at 57-58.
163
Id. at 58.
164
Orr Dep. (attached as Exhibit 26 to Devlin Decl.) at 72-73.
165
See Devlin Decl., Ex. 66.
166
Dep. Ex. 132.
167
Id.
168
Montoya Dep. at 149-184.
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 question any aspect of White‟s version of events. He took no steps to determine which
Corizon employee spoke with Deputy Burnette twice while Mr. Green was in the
segregation cell.169

When asked why he did not investigate that issue, Montoya

responded: “Not my job.”170 Similarly, when asked whether he thought whether Mr.
Green had defecated in the medical clinic because of a spinal cord injury, Montoya
responded: “We see a lot of poop, unfortunately.”171
Montoya listed seven problems in his Sentinel Event Report, along with
recommendations to fix those problems.172 He testified that those were the only items
that needed correction.173 Montoya was unwilling to state that White should have sent
Mr. Green to the hospital, even though he believed that Mr. Green suffered a spinal cord
injury in the courtroom.174
Montoya‟s Sentinel Event Report was forwarded to Dr. Harold Orr, Corizon‟s
Regional Medical Director.175 Orr testified that he did not inquire whether there was
video available from the jail, did not inquire whether LCSO reports were available, did
not talk with anyone, but relied only upon his own review of the chart and Montoya‟s
written report.176 At the time he submitted his report he had met neither Montoya nor

169

Id. at 156-157.
Id. at 157.
171
Montoya Dep. at 162.
172
Dep. Ex. 132.
173
Montoya Dep. at 186.
174
Id. at 165-175.
175
Orr Dep. at 68; Montoya Dep. at 185-186.
176
Orr Dep. at 74-75, 93.
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 White, and he had never visited Lane County.177
Dr. Orr prepared a one-page Corrective Action Plan.178 His report is not critical of
the care received by Mr. Green, and when he was asked whether White met the standard
of care expected of a physician‟s assistant working for Corizon, he responded: “I think
that she met the standard of care.”179

Orr made three recommendations, the most

important of which was to require a “mandatory in-service scheduled for all clinicians
and clinical staff regarding the approach as well as handling of the more common head
and neck injuries i.e. including the indication and use of cervical collars and back
boards.”180
The reports prepared by Montoya and Orr were sent to Tonya Mooningham, an
RN working as a clinical risk management analyst at the Corizon corporate offices in
Tennessee.181 Ms. Mooningham is a member of the Sentinel Event Review Committee,
along with the Chief Medical Officer, Chief Mental Health Officer, Chief Patient Safety
Officer, and several other senior Corizon employees.182
Mooningham completed a Sentinel Event Committee Review Form. 183

Dr.

Rebekah Haggard, the Chief Patient Safety Officer, reviewed and approved the form.184
Mooningham indicated on the form that “human error,” and more specifically “reckless

177

Montoya Dep. at 67-68, 91.
Dep. Ex. 132.
179
Orr Dep. at 100, 103, 111.
180
Dep. Ex. 132.
181
Mooningham Dep. (attached as Exhibit 24 to Devlin Decl.) at 9, 24.
182
Id. at 14.
183
Dep. Ex. 132.
184
Mooningham Dep. at 31.
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 behavior/choice,” by Corizon staff played a role in the incident, along with
“documentation” and “system defects,” more specifically “supplies/equipment.”185
During her deposition, she confirmed that the reference to reckless behavior and human
error related to White.186 Asked why she checked the “reckless behavior/choice” box,
Mooningham responded: “You know, at the time I thought that he should have been sent
to the ER immediately and I thought that the facility should have had a C collar.”187
During her October 2014 deposition, however, Mooningham testified that she
“made a mistake” in checking the “reckless behavior/choice” box and now would
describe White‟s conduct simply as a “mistake.”188 She also was unwilling to state that
White was negligent.189
Mooningham then presented the results of Sentinel Event Review Form to the
Sentinel Event Review Committee, which rated this incident as a “category four.”190
That category “means that the care that was rendered contributed to the event.” 191 Both
Montoya and Orr gave this incident the same category rating.192 The Sentinel Event
Review Committee also approved Orr‟s Corrective Action Plan.193 The Sentinel Event
Review Committee did not make any effort to determine why White had acted

185

Dep. Ex. 132.
Mooningham Dep. at 35.
187
Id. at 39.
188
Id. at 39.
189
Id. at 47.
190
Id. at 54-56.
191
Id. at 55.
192
Dep. Ex. 132.
193
Mooningham Dep. at 58.
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 recklessly.194
N.

Corizon Does Nothing in Response to the Sentinel Event Investigation.

Neither Orr nor Montoya were made aware of the results of Sentinel Event
Committee‟s review, including the conclusion that White had acted recklessly. 195 The
Sentinel Event Review Committee did not perform any follow up to make sure that the
Corrective Action Plan was followed.196 Orr testified that in June of 2013, Montoya
assured him that the Corrective Action Plan had been implemented.197 Corizon, however,
has not been able to produce any documents regarding follow-up or implementation of
the Corrective Action Plan.
During his deposition, Montoya testified that he “believe[d]” an “in-service”
occurred but that he did not attend, did not know who led it, and did not know if any
materials were used.198 There is nothing in White‟s deposition that suggests any such
training occurred.199
Dr. Ivor Garlick, the current Corizon Regional Medical Director, claims to have
little knowledge of the Green case.200 Garlick was asked if he was aware of the facts
uncovered in this litigation, and he claimed ignorance.201

194

When asked whether he

Id. at 61.
Id. at 202, 208-09; Orr Dep. at 122-123.
196
Mooningham Dep. at 60, 68.
197
Orr Dep. at 117-118.
198
Montoya Dep. at 207-208. In an earlier deposition, Montoya testified that “[w]e reviewed
with the staff cervical spine precautions, head injury issues.” Montoya Dep. at 71. When asked
if White attended this training, he replied: “Training might be overstated.” Montoya Dep. at 72.
199
White Dep. at 141-142.
200
Garlick Dep. (attached as Exhibit 14 to Devlin Decl.) at 78-79.
201
Id. at 119-122.
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195

 intended to look at the video evidence, his answer was “No.”202
White was not disciplined in any way. She received an “excellent” performance
review from Montoya in the fall of 2013.203 White is still the primary medical caregiver
at Lane County Jail.

She believes that everything done by Corizon employees in

connection with Mr. Green was “within proper Corizon policies and procedures.”204
O.

Corizon Puts Pressure on Medical Providers to Avoid or Minimize
Hospitalizations.

If an inmate is admitted to a hospital, Corizon medical staff at the facility must
notify the utilization management department at Corizon headquarters in Tennessee.205
The head of that department receives a daily report with the names of every hospitalized
inmate.206 His department reviews every hospital admission of an inmate by contacting
the hospital and requesting a review.207 A nurse employed by Corizon receives updated
information every day, reviews that information, then discusses the situation with the
regional medical director.208 Corizon expects its site medical directors to make daily
phone calls to the hospital and “to work aggressively for a return to the facility.”209
The Lane County HSA receives monthly financial reports from Corizon
headquarters detailing how much money had been spent on outside medical services,
202

Id. at 119, 123.
White Dep. at 55; Montoya Dep. at 49.
204
White Dep. at 167.
205
Viteri Dep. (attached as Exhibit 38 to Devlin Decl.) at 30.
206
Id. at 48. Mr. Viteri explained that Corizon would not track someone like Mr. Green, who
had been released from the Lane County Jail before being taken to the hospital, “because they
are not our responsibility.” See id. at 57-58.
207
Id. at 28-31.
208
Id. at 31-34.
209
Dep. Ex. 36, at 110.
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203

 compared to the budget.210 If there are overruns, that is discussed with the site medical
director, the regional medical director, and the utilization management nurse in New
Jersey.211 Jeremy Legg, the regional vice president, arranged monthly phone calls with
the HSAs to go over the financial performance of each facility.212
White was well aware of Corizon‟s policy. She attended weekly conference calls
chaired by an executive from headquarters during which the status of every hospitalized
Corizon patient in the Western Region was discussed. Eighty to ninety percent of the
time in each weekly meeting was spent on this topic.213 White was of the opinion that if
she sent Mr. Green to the hospital before he was discharged from the jail, Corizon would
have to pay the bill.214
This policy explains the conduct of the Corizon employees in this case. When
asked by deputies whether Mr. Green should be taken directly to the hospital from the
courtroom, White said it was not necessary. When Deputy Burnette twice called the
medical office to report that Mr. Green was not moving, he was told it was okay as long
as Mr. Green was breathing. Why would White leave her patient unattended in the
morning when she knew that he was claiming to be paralyzed, he had suffered a
significant enough head injury that his pupils were not equally reactive, and his verbal
responses were not appropriate? Why would she leave him unattended when she knew

210

Deierling Dep. at 31-32; Hyppolite Dep. (attached as Exhibit 18 to Devlin Decl.) at 67-69;
Thomas Dep. at 74-77.
211
Thomas Dep. at 85-86.
212
Legg Dep. (attached as Exhibit 21 to Devlin Decl.) at 48-49.
213
White Dep. at 17-18.
214
Id. at 64-65.
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 there was a risk of subdural hematoma and cerebral bleeding? Why would she leave the
jail in the afternoon when her patient was obviously paralyzed and suffering from shock?
The answer: she knew her employer wanted Lane County to release Mr. Green from
custody before sending him to a hospital. Once Mr. Green was discharged, he was not
Corizon‟s medical or financial problem.215
The Corizon employees knew that a decision to send Mr. Green to the hospital
would be subject to far more scrutiny than a decision not to send him to the hospital, even
if the decision not to send him to the hospital resulted in quadriplegia.
P.

Corizon Has a Long History of Deliberate Indifference to the Serious
Medical Needs of Inmates.

The behavior of White and others in Lane County is consistent with the behavior
of Corizon employees nationwide. For more than a decade, Corizon and its predecessor
companies (Prison Health Services and Correctional Medical Services) have been
criticized by judges, special masters, and journalists for their deliberate indifference to
the medical needs of inmates, often because of concerns about money. Corizon has
responded to these concerns with ignorance, indifference, and denial.
In 2005, the New York Times published a series of articles about the performance
of Prison Health Services in New York. The Times wrote:
A yearlong examination of Prison Health by the New York Times reveals
repeated instances of medical care that has been flawed and sometimes
lethal. The company‟s performance around the nation has provoked
criticism from judges and sheriffs, lawsuits from inmates‟ families and
215

In fact, Corizon cited the release from custody as the reason it did not have to pay the bill for
Mr. Green‟s emergency room visit. See Dep. Ex. 103 (attached as Exhibit 59 to Devlin Decl.).
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 whistle-blowers, and condemnations by federal, state and local authorities.
The company has paid millions of dollars in fines and settlements.216
The article also quoted deposition testimony from a Prison Health Services nurse: “We
save money because we skip the ambulance and bring them right to the morgue.”217
Dr. Carl Keldie was the Chief Medical Officer for Prison Health Services, and
then Corizon, from September 2000 through the end of 2010, and from late 2011 through
March 2013. He testified that the New York Times articles “led to a pretty significant
paradigm shift within Prison Health Services * * * in the culture of the company, to one
that we really endorsed patient safety.”218 Other Corizon employees dispute Keldie‟s
reaction to the articles. Dr. Garlick, who worked for Prison Health Services/Corizon
since 1999 and was a Regional Medical Director under Keldie, testified that Keldie
believed that some of the facts in the articles were “very one-sided,” and he could not
identify any specific changes made as a result of the articles.219 Becky Pinney, the
current Chief Nursing Officer who was working in the New York jails when the article
was written, disagreed with the articles and felt that they got facts wrong.220
In 2006, a federal judge in Michigan held that CMS “routinely deprives patients of
necessary services for serious medical and mental health needs” and displayed

216

Paul von Zielbauer, “As Health Care in Jails Goes Private, 10 Days Can Be a Death
Sentence,” New York Times (Feb. 27, 2005) (attached as Exhibit 70 to Devlin Decl.).
217
See Devlin Decl., Ex. 70.
218
Keldie Dep. (attached as Exhibit 19 to Devlin Decl.) at 103.
219
Garlick Dep. at 116-117.
220
Pinney Dep. (attached as Exhibit 29 to Devlin Decl.) at 36-39.
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 “widespread provider indifference to patient care.”221 The judge issued a call to action:
Here is the basic message: You are valuable providers of life-saving
services and medicines. You are not coatracks who collect government
paychecks while your work is taken to the sexton for burial. If a patient
does not receive necessary medical or psychological services, including
medicines and specialty care, it is not his problem, it is your problem, a
problem that must be solved at lunch, nights or weekends, if necessary. If
someone in the bureaucracy, including CMS, is stopping you from
providing necessary services in a timely way, or stopping the patient from
obtaining necessary specialist care or medicine, you should pester the
malefactors until they respond and the services are provided. If they still
won‟t relent, you are to relay their names, including correct spellings and
addresses at which they may be arrested, to the medical monitor so those
persons may be held in contempt and jailed, if necessary. The days of dead
wood in the Department of Corrections are over, as are the days of CMS
intentionally delaying referrals and care for craven profit motives.222
In 2010, the Department of Homeland Security investigated the death of an ICE
detainee at a jail in Massachusetts. DHS found that PHS had failed to recognize and treat
the detainee‟s septic condition, which resulted in multisystem failure and myocardial
infarction. DHS also found that the detainee should have been sent to the hospital two
days before he was sent. Keldie knew about this report, but he could not remember any
details.223
In 2012, a federal judge in Idaho appointed Dr. Marc Stern to be a special master
in a case against the Idaho Department of Corrections and Corizon. Dr. Stern “found
serious problems with the delivery of medical and mental health care” that were

221

Hadix v. Caruso, 461 F. Supp. 2d 574, 598 (W.D. Mich. 2006), remanded, 248 Fed. Appx.
678 (6th Cir. 2007).
222
Id. at 598-99.
223
Keldie Dep. at 88.
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 “frequent, pervasive, [and] long standing.”224

He concluded that authorities were

“deliberately indifferent to the serious health care needs of their charges.” 225 Among
other things, Dr. Stern found the following:
Patients report, and many correctional officers confirmed, that when
correctional officers contact [Corizon] for an urgency, it is not uncommon
for the nurse to either take a long time to respond, sometimes requiring
repeat calls to [Corizon], or for the nurse to obtain some second hand
clinical information from the officer, and based on this, to instruct the
officers to have the patient submit a [kite] on the next regular business day.
This state of operation places patients at an unacceptable risk of harm.
While many urgencies which sound benign over the phone are benign,
some are not. The only way to determine the difference is through basic –
and timely – nursing triage which usually requires taking a patient history
and conducting an examination.226
Keldie explained that Corizon took the position that Dr. Stern‟s report was inaccurate.227
Corizon‟s CEO stated publically that Dr. Stern‟s report was “incomplete, misleading and
erroneous.”228
In 2012, the Eleventh Circuit affirmed a jury verdict against Corizon for deliberate
indifference to the serious medical needs of a prisoner.229 In Fields v. Corizon Health,
the failure to treat a MRSA infection led to paralysis. The court held that “the jury could
reasonably conclude that Prison Health had a policy that improperly delayed treatment of
serious medical needs, like paralysis, where such delay would detrimentally exacerbate

224

See Devlin Decl., Ex. 69 (“Stern Report”), at 3.
Id.
226
Stern Report, at 12.
227
Keldie Dep. at 83-85.
228
Hallworth Dep. (attached as Exhibit 16 to Devlin Decl.) at 66.
229
Fields v. Corizon Health, Inc., 490 Fed. Appx. 174 (11th Cir. 2012).
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 an inmate‟s condition.”230
Plus, if the jury did ask itself why Prison Health delayed treatment for Mr.
Fields‟ paralysis, it could have concluded that it delayed treatment to save
costs. Ms. Allen noted that the Prison Health supervisors yelled at nurses
because the nurses sent inmates to the hospital. Although Ms. Allen
mentioned that some nurses sent inmates to hospitals when the inmates had
no medical problems – testimony, by the way, that the jury was free to
reject given its lack of corroboration – she also said that Prison Health
underscored that it cost “so much money” every time an inmate went to the
hospital. Apparently, Ms. Allen heard this mantra from three different
Prison Health supervisors. The jury could have thus concluded that Prison
Health delayed treatment to save money, which is not a medical
justification.231
Keldie was not familiar with the Fields case or any of the evidence quoted in the
opinion.232
And Corizon‟s problems are ongoing. In a lawsuit filed in Georgia on November
13, 2014, three former Corizon employees, an MD and two nurses, claim they were fired
by Corizon in retaliation for reporting that Corizon used unlicensed healthcare providers
in the Chatham County Jail, is denying mental health patients needed medication, and
denying “gravely ill patients * * * admission to hospitals.”233 Dr. Charles Pugh, the
former Site Medical Director at that Georgia jail, submitted a declaration in this case that
states:
During my tenure at Site Medical Director, I was constantly under pressure
from my superiors in Corizon to minimize emergency room treatments and
outside physician consults for jail inmates in order to save money.
Once or twice a week there were telephone conferences I was expected to
230

Id. at 183-84.
Id. at 184-85.
232
Keldie Dep. at 91-94.
233
See Devlin Decl., Ex. 68 (Complaint, Riner, et al. v. Corizon Health, Inc., et al.).
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 attend with the Corizon Regional Medical Director regarding who was in
the hospital and what was going on with patients in the hospital. There was
a constant demand to monitor all hospitalizations, to avoid hospitalizations,
to request prompt hospital discharges, and to minimize hospital stays.
In my experience working for Corizon, the company‟s constant efforts to
reduce costs interfered with my ability, and with my staff‟s ability, to
provide appropriate levels of care to inmates of the Chatham County Jail.234
ARGUMENT
Corizon divides its argument into “pre-injury” claims and “post-injury” claims.
Plaintiffs will follow this structure in their response.
The Corizon defendants are responsible for the pre-injury claims because the
failure to conduct an intake screening on Mr. Green was the result of a joint decision
between Corizon and Lane County. That decision violated both Corizon‟s contract and
national standards.
The Corizon defendants are responsible for the post-injury claims because its
employees displayed deliberate indifference to the serious medical needs of Mr. Green
and because that deliberate indifference was the result of Corizon‟s policies and
procedures.
I.

Many of the “Undisputed Facts” in Corizon’s Brief Are Disputed.

As should be clear by now, many of Corizon‟s claims of “undisputed” facts are, in
fact, disputed.

Plaintiffs will not review all issues of fact in obvious dispute, but

respectfully submit that the critical bullet points set forth at pages 1-2, above, are all

234

Declaration of Charles Pugh, M.D., in Support of Plaintiffs‟ Memorandum in Opposition to
Motion for Summary Judgment by Defendants Corizon et al. (“Pugh Declaration”), ¶¶ 2-4.
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 supported in the factual record.
II.

Pre-Injury Claims
A.

Monell Claims (Corizon Brief, at 14-16)

Lane County and Corizon are constitutionally required by the Due Process Clause
of the Fourteenth Amendment to provide adequate medical and mental health care to
pretrial detainees.235 Mr. Green had “an established right not to have officials remain
deliberately indifferent to [his] serious medical needs.” A municipality is liable under the
deliberate indifference standard if the municipality “knows of and disregards an
excessive risk to inmate health and safety.”236
It is undisputed that Corizon did not conduct an intake screening on Kelly Green
during the thirteen hours between his arrival at the jail and his injury in the courtroom.237
Plaintiffs allege that both Lane County and Corizon are responsible for this lack of an
intake screening.238
Corizon argues that it cannot be held liable for its failure to conduct an intake
screening because the Lane County deputies “never contacted or informed any Corizon
employee” that Mr. Green had been admitted to the jail.239 This allegation is neither true
nor relevant. Deputy Nelson testified that her booking paperwork was immediately

235

Gibson v. County of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002), cert. denied, 537 U.S. 1106
(2003); Corizon Brief at 15.
236
Gibson, 290 F.3d at 1187.
237
Corizon Brief, at 6.
238
Second Amended Complaint (“SAC”), ¶¶ 40(a) & (b).
239
Corizon Brief, at 15.
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 forwarded to Corizon.240 Lane County, in its proposed cross-claim, states that Corizon
staff knew or should have known when a new inmate was booked into the jail.241 And
Corizon was not screening incoming inmates as a matter of course.242
Corizon argues that it was Lane County‟s policy of not screening that is the cause
of Mr. Green not being screened. That both Lane County and Corizon chose to ignore
national standards243 and Corizon‟s contractual promises244 does not make their decision
to not medically screen incoming detainees Lane County‟s policy alone. Corizon is a coowner of the policy. Furthermore, and tellingly, in its proposed Answer Lane County
disputes Corizon‟s claim that Lane County was responsible for the no-screening reality in
the jail.245
Corizon was responsible to provide appropriate care to Mr. Green once he was
booked into the Lane County jail. Corizon and Lane County shared the policy of not
performing intake screening.
Plaintiffs anticipate that Corizon might argue that it complied with its policies and
240

Nelson Dep. at 63.
Defendant Lane County‟s Answer and Affirmative Defenses to Plaintiffs‟ Second Amended
Complaint & Defendants Cross Claim (“Lane County Cross Claim”), ¶ 54.
242
Thomas Dep. at 97-98; Nelson Dep. at 58-59; Bichsel Dep. (attached as Exhibit 3 to Devlin
Decl.) at 22-26.
243
See Ruiz Declaration, ¶ 3; see also Declaration of Gayle Burrow in Support of Plaintiffs‟
Memorandum in Opposition to Motion for Summary Judgment by Defendants Corizon et al.
(“Burrow Declaration”), ¶ 4.
244
Dep. Ex. 36, at 24, 79, 114; see, also Daigle Declaration, Ex. 29, at 1; Dep. Ex. 72, at 2
(attached as Exhibit 55 to Devlin Decl.); Pastor Dep. (attached as Exhibit 27 to Devlin Decl.) at
84.
245
Lane County Cross Claim, ¶¶ 52-53; see also Ewing Dep. (attached as Exhibit 13 to Devlin
Decl.) at 104-105, 108, where Lt. Ewing testified that Lane County would have preferred for
Corizon to do the initial intake assessments at the time of booking and that, if no one from
Corizon saw Mr. Green for an initial intake assessment for more than twelve hours, that would
not have complied with Lane County‟s “desires and * * * preferences.”
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 the national standard because a “health trained correctional officer” performed the intake
screening. There are two responses to this possible argument. First, witnesses from both
Lane County and Corizon testified that Corizon employees, not Lane County employees,
had to perform the intake screening.246 Second, the booking deputy who dealt with Mr.
Green never received any training from Corizon regarding the initial assessment of
medical and mental health of people brought into the jail.247 Dr. Amanda Ruiz, an expert
in correctional mental health issues, has submitted a declaration stating that Deputy
Nelson “was not adequately trained” to perform an intake screening.248
In Gibson v. County of Washoe, a mentally ill person was arrested for drunk
driving, received no medical or mental health screening upon admission to the jail, and
died during the night.249 The Ninth Circuit reversed a trial court grant of summary
judgment in favor of the defendants, holding that the county‟s policy of not medically
screening certain new jail admittees supported a § 1983 claim:
As long as a jury can infer that the policy makers knew that their policy of
not screening certain incoming detainees would pose a risk to someone in
Gibson‟s situation, we must reverse the summary judgment in favor of the
county.250
246

Ewing Dep. at 62; Hyppolite Dep. at 87-88; Legg Dep. at 82.
Nelson Dep. at 70; see also Ralph Dep. (attached as Exhibit 33 to Devlin Decl.) at 63; Taylor
Dep. (attached as Exhibit 35 to Devlin Decl.) at 23. Nelson did not believe that she could refuse
to admit to the jail a person who was in need of immediate mental health care. Nelson Dep. at
48. Nelson said that she did not know to contact the medical staff for mental health issues and
that a person with mental health issues at booking would be kept separate from the other inmates,
and a mental health professional could talk to them during the day shift – “they just kind of get
put by themselves until they can talk to somebody the next day.” Nelson Dep. at 47-50.
248
Ruiz Declaration, ¶ 3c; see also Burrow Declaration, ¶ 4.
249
290 F.3d at 1181-83.
250
Id. at 1191.
247

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 Here, as in Gibson, the joint policy of Corizon and Lane County to not perform
appropriate medical or mental health screening clearly poses a substantial risk of serious
harm to someone in Mr. Green‟s situation, i.e. a schizophrenic person suffering a
psychotic break. Corizon was well aware of the risk inherent in not having a trained
medical person perform intake screening. In its RFP response, Corizon wrote:
Our initial health assessment is an important inquiry and observation
process designed to ensure a newly arrived inmate, who may possibly pose
a threat to his/her own or other‟s health or safety, is admitted into the
general population only after an appropriate level of medical intervention.
The Corizon intake medical screening for Lane County will identify
inmates with suicidal tendencies, chronic medical problems, unresolved
acute medical problems, and communicable diseases, while creating an
accurate medical record for each inmate in the County‟s custody.
***
Corizon feels that the intake screening process is fundamentally one of the
most important functions that the medical services team will provide.
***
As part of our intake medical screening process, mental health screening is
performed. An incoming inmate answering affirmatively to any mental
health question is immediately referred to the mental health staff for
evaluation. This ensures appropriate intervention and housing. Inmates
requiring follow-up care (i.e., an inmate considered at risk for suicide) are
referred to the appropriate services at the time of assessment.251
Corizon made the same argument in M.H. v. County of Alameda252 that it makes
here. Citing national jail standards, the Court denied Corizon‟s summary judgment
motion, holding that a lack of medical screening supported a prisoner‟s wrongful death

251

Dep. Ex. 36, at 79-81.
2014 WL 1429720 (N.D. Cal Apr. 11, 2004).
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 claim.253 A jury in this case could conclude that Corizon was deliberately indifferent to
the serious medical and mental health needs of Kelly Green by failing to conduct a timely
intake screening.
B.

Supervisory Claims (Corizon Brief, at 16-19)

Plaintiffs contend that two Corizon supervisors – Dr. Montoya and HSA Thomas –
are responsible for the failure to perform an intake medical screening on Mr. Green. 254 A
supervisor can be held individually liable under § 1983 “when culpable action, or
inaction, is directly attributed to them.”255 The Ninth Circuit has explained that “the
supervisor‟s participation could include his own culpable action or inaction in the
training, supervision, or control of his subordinates, his acquiescence in the constitutional
deprivations of which the complaint is made, or conduct that showed a reckless or callous
indifference to the rights of others.”256
Corizon first argues that defendants Montoya and Thomas should not be liable
because the policy at issue was a Lane County policy, not a Corizon policy. Plaintiffs
addressed that argument in Section II.A above.
Corizon also argues that Montoya and Thomas should not be held liable for any
failure to train Corizon and Lane County employees regarding the need to perform timely
intake medical screenings. To support this argument, Corizon details the training that it

253

Id. at *28-*30.
SAC, ¶¶ 45, 46(a). Plaintiff concedes that the “pre-injury” supervisory claim does not apply
to defendant Keldie.
255
Starr v. Baca, 652 F.3d 1202, 1205-06 (9th Cir. 2011), reh’g en banc denied, 659 F.3d 850
th
(9 Cir. 2011), cert. denied, 132 S. Ct. 2101 (2012).
256
Id. at 1205-06.
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 provides to its own employees regarding “the importance of a prompt mental health
evaluation for severely mentally ill detainees.”257
The problem with this argument is that, as Corizon admits, its employees were not
conducting the initial screening. As noted above, the booking deputy who dealt with Mr.
Green never received any training from Corizon regarding the initial assessment of
medical and mental health of people brought into the jail.258 Dr. Ruiz has concluded that
Deputy Nelson “was not adequately trained” to perform an intake screening.259
Thomas testified that it was her responsibility to be “sure that the contract was
followed, policy and procedure was followed, staff was properly trained.”260 Yet she had
no knowledge regarding what the contract “provided for in terms of when the Corizon
screening should take place.”261

She did not know whether Corizon provided any

training to the booking deputies, and she did not know what questions the booking
deputies asked regarding medical or mental health conditions.262
Montoya, the Site Medical Director at the jail, was responsible for ensuring that
the jail‟s policies and procedures complied with the relevant national standards.263 He
also was responsible for all clinical programs at the jail, and he “function[ed] with the
HSA as the health authority by supervising the clinical services provided by the

257

Corizon Brief, at 18-19.
See note 247 above.
259
Ruiz Declaration, ¶ 3c.
260
Thomas Dep. at 35-36.
261
Id. at 98.
262
Id. at 99-100.
263
Dep. Ex. 119, at 2 (attached as Exhibit 61 to Devlin Decl.).
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 professional staff.”264 Montoya knew that Corizon medical people were not conducting
intake medical screenings at booking.265 During his monthly meetings with Lane County
representatives, one of the recurring topics was the need for a nurse in the booking area at
all times.266
A jury can conclude that Thomas and Montoya were aware of the risks of not
providing timely intake screening, because they are Corizon employees who went
through the training set forth above. In addition, they were required to be familiar with
the Corizon contract with Lane County, which laid out the risks of not providing timely
intake screening. Finally, as of the date depositions were taken of the Lane County
deputies and the Corizon medical team, there had been no change in jail policy regarding
intake screening.267 Regardless of the Corizon training paperwork, a jury may reasonably
infer that, even after the tragedy involving Mr. Green, Montoya and Thomas made no
effort to train staff regarding the necessity of performing appropriate intake medical and
mental health screening.
C.

State Law Claims (Corizon Brief, at 20)

Corizon next argues that it cannot be liable under state medical malpractice law
for the failure to perform intake screening because Corizon did not know Mr. Green was
in custody and, therefore, had no “duty that runs from the defendant to the plaintiff.” The
problem with this argument is both factual and legal. Factually, Lane County claims that
264

Dep. Ex. 120, at 1 (attached as Exhibit 62 to Devlin Decl.).
Montoya Dep. at 132-33.
266
Montoya Dep. at 130-34, 139-41; Dep. Ex. 131 (attached as Exhibit 64 to Devlin Decl.).
267
Brown Dep. at 106-09; Pleich Dep. at 65, 141.
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 Corizon did know Mr. Green was in the jail.268 Legally, plaintiffs‟ common law claim
against Corizon for failing to perform an intake screening is not a garden variety medical
malpractice claim.269
Rather, the claim is governed by Fazzolari v. Portland School Dist. No. 1J:270
[U]nless the parties invoke a status, relationship, or particular standard of
conduct that creates, defines, or limits the defendant‟s duty, the issue of
liability for harm actually resulting from defendant‟s conduct properly
depends on whether that conduct unreasonably created a foreseeable risk to
a protected interest of the kind of harm that befell the plaintiff.271
Plaintiffs‟ claim is grounded upon the duties of a health care provider in a correctional
facility to provide an intake screening. As noted above, Lane County and Corizon are
constitutionally required by the Due Process Clause of the Fourteenth Amendment to
provide adequate medical and mental health care to pretrial detainees.272 In addition, the
Restatement (Second) of Torts § 314A states: “One who is required by law to take or who
voluntarily takes the custody of another under circumstances such as to deprive the other
of his normal opportunities for protection is under a similar duty to the other.”273
Here, Corizon stepped into the shoes of the Lane County jailers by contractually
assuming the responsibility to provide all medical care in the jail. At the very least, Mr.
Green was a third party beneficiary of the contract. It is for the jury to determine whether
Corizon acted reasonably under the circumstances in failing to perform an intake
268

Lane County Cross Claim, ¶ 54; Nelson Dep. at 63.
If the screening had been done negligently by a Corizon employee, that would give rise to a
medical malpractice claim.
270
303 Or. 1 (1987).
271
Id. at 17.
272
Gibson, 290 F.3d at 1187; Corizon Brief at 15.
273
Restatement (Second) of Torts § 314A(4) (1965).
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 screening of Mr. Green when he was suffering a psychotic episode.
D.

“Moving Force” Behind Mr. Green’s Injuries (Corizon Brief, at
20-21)

Corizon argues that, even if its medical staff had evaluated Mr. Green the night of
February 11, 2013, “it would have changed nothing.”274

Dr. Ruiz explains in her

declaration that Mr. Green was suffering a psychotic break when he was arrested on
February 11, 2013.275 If he had received an appropriate intake screening, “his serious
mental health condition would have been easily recognized” and he could have received
appropriate care.

With appropriate care, he would not have attempted to injure

himself.276
Clearly, a jury question has been raised on the issue of whether Corizon‟s policies
and its supervisors were a moving force behind Mr. Green‟s injuries.
III.

Post-Injury Claims
A.

Monell Claims (Corizon Brief, at 22-29)

Corizon seeks dismissal of the policy claims set forth in ¶ 40 c-f.277
Before examining the specific claims, plaintiffs respectfully set forth some general
principles relevant to the issues presented.
The failure to criticize or reprimand White or Thomas after the horrendous
decisions made on February 12th is evidence that Corizon approved of their actions, and

274

Corizon Brief, at 21.
Ruiz Declaration, ¶ 3a.
276
Id., ¶¶ 3d-e. When he was booked into the jail, Mr. Green was talking to himself and to
inanimate objects, among other things. See Dep. Ex. 26, at 2.
277
Corizon erroneously refers to these allegations as ¶¶ 44 c-f.
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 permits a jury to infer the existence of various customary Corizon policies.
In Grandstaff v. City of Borger, Texas,278 plaintiffs successfully claimed that the
city, through its chief policy maker, “chose to operate a police force where prevalent
recklessness endangered human life and safety.”279
Following this incompetent and catastrophic performance, there were no
reprimands, no discharges, and no admissions of error. The officers
testified at the trial that no changes had been made in their policies. If that
episode of such dangerous recklessness obtained so little attention and
action by the City policymaker, the jury was entitled to conclude that it was
accepted as the way things are done and have been done in the City of
Borger. * * * As subsequent conduct may prove discriminatory motive in a
prior employment decision * * * and subsequent acts may tend to prove the
nature of a prior conspiracy * * * so the subsequent acceptance of
dangerous recklessness by the policymaker tends to prove his preexisting
disposition and policy.280
The holding in Grandstaff is good law in the Ninth Circuit. In Henry v. County of
Shasta,281 plaintiff asserted various constitutional violations in the Shasta County Jail.
Reversing a grant of summary judgment, the Ninth Circuit stated:
* * * „post-event evidence‟ may be used to prove the existence of a
municipal policy in effect at the time that Henry was detained. See, e.g.,
Larez v. City of Los Angeles, 946 F.2d 630, 635 (9th Cir. 1991) (where
allegation was that police chief set tone condoning and encouraging
excessive use of force, „we can hardly think of better evidence‟ than
statements he made after incident that were consistent with those claims);
McRorie v. Shimoda, 795 F.2d 780, 784 (9th Cir. 1986) („Policy or custom
may be inferred if, after [constitutional violations], . . . officials took no
steps to reprimand or discharge the [prison] guards, or if they otherwise
failed to admit the guards‟ conduct was in error‟) (citation omitted). * * *
278

767 F.2d 161 (5th Cir. 1985), reh’g denied, 779 F.2d 1129 (5th Cir. 1986), cert. denied, 480
U.S. 916 (1987).
279
Id. at 170-71.
280
Id. at 171-72 (citations omitted).
281
132 F.3d 512 (9th Cir. 1997), amended, 137 F.3d 1372 (9th Cir. 1998), cert. denied, 525 U.S.
819 (1998).
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 [W]e reiterate our rule that post-event evidence is not only admissible for
purposes of proving the existence of a municipal defendant‟s policy or
custom, but may be highly probative with respect to that inquiry. See, e.g.,
Lorez, 946 F.2d at 645. When a county continues to turn a blind eye to
severe violations of inmates‟ constitutional rights – despite having received
notice of such violations – a rational fact finder may properly infer the
existence of a previous policy or custom of deliberate indifference. The
leading case on the use of post-event evidence in § 1983 municipal liability
cases, which we cited with approval in Larez and McRorie, is Grandstaff v.
City of Borger * * *. ”282
The principle has been applied in the District of Oregon. In Ashley v. Sutton,283
plaintiff brought claims alleging Fourth Amendment violations. Judge Haggerty affirmed
Magistrate Hubel‟s denial of summary judgment sought by the defendants city and the
police chief:
Gallaher‟s ratification and approval of Sutton‟s use of force against Ashley
is fatal to his motion for summary judgment. * * * If a jury finds that
Sutton used excessive force, then it can also find Gallaher liable because he
condoned or ratified that use of force. * * * A municipality also can be
liable for an isolated constitutional violation if the final policymaker
„ratified‟ a subordinate‟s actions and, ordinarily, ratification is a question
for the jury.284
With this principle of post event ratification in mind, the allegations against
Corizon can be examined.
1. Policy of not providing for trained physicians to examine seriously injured
Lane County inmates (¶40c).
It is undisputed that neither White nor Thomas contacted Dr. Montoya about Mr.
Green‟s situation on February 12, 2013, despite his serious injuries.
In the Sentinel Event Review, neither Orr nor Montoya criticized White or
282

Id. at 518-519, as amended, 137 F.3d at 1372.
492 F. Supp. 2d 1230 (D. Or. 2007).
284
Id. at 1238 (citations omitted).
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 Thomas for failing to contact Montoya, despite the fact that Orr acknowledged that White
did not have the training to properly handle the situation in the courtroom.285 Montoya
confirmed that he did not think White needed to call him.286 Both Orr and Montoya were
unwilling to say that White violated the standard of care in any way. 287 White still
believes that everything she did complied with Corizon policies and procedures.288
Corizon, and the individuals responsible for supervising White and the nursing
staff, may be held liable based upon their response to the chronicled events. For despite
the terrible medical care, despite the callous decision to delay treatment, despite the
attempted cover-up and “loss” of medical records, White and Thomas remain
undisciplined and continue to serve in leadership positons for Corizon. White remains in
her position at the Lane County Jail, and Thomas has been promoted to Regional Clinical
Services Manager. Corizon clearly approved of their actions in allowing the grievously
injured Mr. Green to lie unattended for hours.
2. Policy of denying Lane County inmates necessary medical care if said inmates
are thought to be soon released from the jail (¶40d).
3. Policy of discouraging transferring inmates to a hospital for medical care
(¶40e).
4. Policy of delaying transferring Lane County inmates to hospitals for
necessary emergency medical care in order to first prepare paperwork to
effectuate a jail discharge (¶40f).
White and Thomas both testified that they believed Mr. Green needed to go to the
285

Dep. Ex. 132; Orr Dep. at 162 (“I think in her level of training, her level of expertise, she just
didn‟t see the full picture.”).
286
Montoya Dep. at 100-01.
287
Orr Dep. at 100, 103, 111; Montoya Dep. at 209-210.
288
White Dep. at 167.
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 hospital in the morning. Nevertheless, both admitted that they were willing to wait so
that the Lane County deputies could prepare release paperwork. Both were very familiar
with the concept of a “courtesy drop,” and White even used the term in her medical
chart.289 Clearly, this was not the first time that a Lane County inmate had been given a
“courtesy drop” at the hospital.
In the Sentinel Event Review, Orr and Montoya did not criticize White or Thomas
for waiting to send Mr. Green to the hospital so that he could first be released from
custody.290 Montoya specifically noted, without any criticism: “Per KW verbal report she
and temporary HSA (Vicki) indicated Green needed to be transported to hospital. They
were told by deputy he would be released shortly and would get a courtesy drop-off at
hospital.”291

Orr also acknowledged that, even though White had concern about

“possible neurological issues,” she relied on the fact that “the inmate‟s release was
imminent.”292
As in the section above, the results of the Sentinel Event Review make clear that
Corizon‟s senior management approved of and ratified the decision by White and
Thomas to delay Mr. Green‟s hospitalization until he could be released from the jail.
Corizon argues that White could not have been motivated to put “profits over
people,” because she allegedly did not know who would pay for Mr. Green‟s medical
treatment. During her deposition, however, she testified that she thought Corizon would
289

Dep. Ex. 48, at 1-2.
Dep. Ex. 132.
291
Id. at 4.
292
Id.
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 have to pay the bill, because Mr. Green had been admitted to the jail.293 As set forth
above, the members of the Corizon medical staff attended frequent meetings where they
were implored to keep hospital costs down.294 Dr. Pugh‟s declaration, the testimony in
the Fields case, the court‟s statements in Michigan, the Stern Report – all this evidence
supports the clear inference arising from the events at the Lane County Jail. A jury may
conclude that White and Thomas were following Corizon custom and policy in trying to
save money for Corizon by either delaying Mr. Green‟s trip to the emergency room or by
not sending him to the emergency room at all.
5.

Policy of failing to meet widely accepted community standards of care with
regard to medical services for injured inmates of the Lane County Jail.

The horrendous indifference to Mr. Green‟s well-being has been documented
above. Corizon‟s response to the events makes clear its true view of its mission and the
patients it serves.
First, neither Dr. Orr, Dr. Montoya nor the Corizon corporate Sentinel Event
Committee were willing to acknowledge that White violated the standard of care
expected of Corizon medical providers in any way.295 In the days immediately after the
Mr. Green‟s paralysis, White said that Montoya‟s only criticism of her conduct was that
she did not time her chart note.296

Corizon considers form more important than

substance.
293

White Dep. at 64-65. As Corizon explains in its brief, she was not correct in this belief,
because Mr. Green was a City of Eugene prisoner. That mistaken belief, however, gave her a
motive to protect Corizon‟s money.
294
See Pugh Declaration, ¶¶ 2-4.
295
Orr Dep. at 100, 103, 111; Montoya Dep. at 209-210.
296
White Dep. at 59-60.
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 Second, White, Thomas, Montoya and Orr all knew about Deputy Burnette‟s
efforts to contact the Corizon medical clinic to help Mr. Green during the afternoon of
February 12th. None of them made a serious effort to determine the identity of the
Corizon employee who callously brushed Burnette off. No one from Corizon even
interviewed Burnette. Dr. Montoya flatly said: “Not my job.”297 Thomas (who had taken
a new job with Corizon) said: “I‟m with Washington County.”298 White said: “I wasn‟t
there. I didn‟t hear it.”299 If Corizon truly was an organization dedicated to patient safety
then it would have determined who spoke with Deputy Burnette on the afternoon of
February 12, 2013 and fired that person.
Third, the Sentinel Event Review Committee initially concluded that White‟s
conduct was “reckless.”300

The Committee made no effort to communicate that

conclusion to Drs. Orr or Montoya, White‟s supervisors.301 The corporation showed no
interest in disciplining or terminating an employee who had engaged in reckless behavior
that contributed to an inmate becoming quadriplegic. It was easier to simply leave things
be, and to allow White to serve in the same capacity, secure in the knowledge that she did
nothing wrong.
Faced with litigation, Mooningham, the person who initially reached the
conclusion that White had been reckless in her care of Mr. Green, retracted her

297

Montoya Dep. at 157.
Thomas Dep. at 170.
299
White Dep. at 162-63.
300
Ex. 132, at 9.
301
Montoya Dep. at 202, 208-209; Orr Dep. at 122-123.
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 conclusion during her October 2014 deposition.302 She was unwilling to state even that
White was negligent.303 Even in the face of a patient rendered quadriplegic, even in the
face of a patient‟s death, Corizon representatives step back from critically examining the
health care they provide, no matter how substandard.
Finally, plaintiffs have uncovered compelling evidence that White destroyed
documents that should be in Mr. Green‟s medical chart and substituted fraudulent
documents. Plaintiffs have uncovered compelling evidence that White is not telling the
truth about the critical aspects of her treatment of Mr. Green. Multiple witnesses have
testified under oath that she did not perform a neurological exam and did not say that Mr.
Green needed to go to the hospital.
Despite this overwhelming evidence, Corizon continues to employ White as the
chief day-to-day medical provider at the Lane County Jail. Corizon‟s tolerance of her
conduct in this case is evidence that Corizon has a policy of failing to meet widely
accepted standards of care with regard to medical services of injured inmates.
B.

Deliberate Indifference Claims (Corizon Brief, at 29-35)

Corizon argues that there is insufficient evidence to go forward on plaintiffs‟
claims that Thomas, White, Epperson, and Pleich were deliberately indifferent to
plaintiffs‟ serious medical needs.

302

Mooningham Dep. at 39.
Id. at 47.
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303

 In a denial of medical care claim, proving deliberate indifference requires proof
that an individual “was „(a) subjectively aware of the serious medical need and (b) failed
adequately to respond.‟”304
There is sufficient evidence here for a jury to conclude that all four Corizon
defendants listed above acted with deliberate indifference. Each was subjectively aware
of the serious medical needs of Mr. Green, and each failed to adequately respond.
Whether a medical provider acted with deliberate indifference presents a question
of fact.305 The standard of proof is “less stringent” in cases involving a prisoner‟s
medical needs.306 Proof can be based upon circumstantial evidence, and need not rely
upon the direct testimony of the medical person whose judgment is questioned.
Whether a prison official had the requisite knowledge of a substantial risk
is a question of fact subject to demonstration in the usual ways, including
inference from circumstantial evidence, * * * and a factfinder may
conclude that a prison official knew of a substantial risk from the very fact
that the risk was obvious.307
Otherwise, an official would be able to win a case simply by asserting that he or she acted
in good faith.
For example, in Sherrod v. Lingle, a jail inmate complained that his symptoms of
pending appendicitis were ignored. The Seventh Circuit held that a chart note (“rule out
appendicitis”) could be taken as evidence by the jury that tests were needed to eliminate
appendicitis as a cause of the plaintiff‟s pain, but no tests were performed:
304

Simmons v. Navajo County, 609 F.3d 1011, 1017-1018 (9th Cir. 2010).
305
Sherrod v. Lingle, 223 F.3d 605, 611 (7th Cir. 2000).
306
M.H., 2014 WL 1429720, at *19.
307
Farmer v. Brennan, 511 U.S. 825, 842 (1994).
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 The evidence, when resolved in Sherrod‟s favor, raises questions of
material fact as to whether the prison medical staff exhibited deliberate
indifference, by returning Sherrod to his cell despite the appendicitis
symptoms, thereby precluding summary judgment for the defendants.
* * * A prisoner is not required to show that he was literally ignored by the
staff. If knowing that a patient faces a serious risk of appendicitis, the
prison official gives the patient an aspirin and an enema and sends him
back to his cell, a jury could find deliberate indifference although the
prisoner was not „simply ignored.‟308
In Gibson v. Moskowitz,309 a mentally disabled inmate died in prison from
dehydration.

The Court affirmed a jury verdict of deliberate indifference.

After

concluding that the decedent‟s medical needs were serious, the Court addressed whether
the defendant physician subjectively ignored the inmate‟s medical needs.
[Dr.] Moskowitz argues that he „did not believe that a serious medical need
existed * * *.‟ * * * The question, however, is not just whether the state
employee has admitted the inmate faced an excessive and imminent health
risk; it is also whether circumstantial evidence including „the very fact that
the risk was obvious,‟ Farmer v. Brennan, 511 U.S. 825, 842 * * * shows
the employee must have understood the nature of the risk. A reasonable
jury could fairly conclude that Moskowitz „kn[ew] of and disregard[ed] an
excessive risk to [Vaughn‟s] health or safety.310
Deliberate indifference may be inferred when medical decisions “are so far afield”
from professional standards that an inference cannot be drawn that the decisions were
based on actual medical judgment.311 Deliberate indifference may also be inferred where
the care given is so cursory as to amount to no treatment at all. In Ancata v. Prison

308

Sherrod, 223 F.3d at 611-12.
523 F.3d 657 (6th Cir. 2008).
310
Id. at 662.
311
Vann v. Vandenbrook, 596 F. Supp. 2d 1238, 1243 (W.D. Wis. 2009).
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 Health Servs., Inc.,312 the Eleventh Circuit held that “if necessary medical treatment has
been delayed for non-medical reasons, a case of deliberate indifference has been made
out. Plaintiff alleged that * * * defendants put the financial interest of Prison Health
Services ahead of the serious medical needs of Ancata.”313
In Thompson v. Lampert,314 Magistrate Hubel considered a deliberate indifference
claim, and held that the medical staff was not entitled to summary judgment:
A court may infer the existence of the requisite subjective state of mind
from the fact that the risk of harm is obvious. Hope [v. Pelzer, 536 U.S.
730,] at 738; Weeks [v. Chaboudy], 984 F.2d at 187 (lack of actual
knowledge unavailing when consequences of wheelchair deprivation were
clearly foreseeable to medical director). Common sense compels a
conclusion that trained medical personnel could not fail to recognize the
potential risks to plaintiff of being deprived of his wheelchair in his cell for
thirty-five days. Thus, I conclude that plaintiff has stated a constitutional
claim against the „DSU Medical Staff‟ in regard to his wheelchair
deprivation claim.315
Plaintiffs will discuss each of the Corizon defendants separately.
1.

Kris White316

A jury can conclude, based upon the evidence presented, that:
 White came into the courtroom and was confronted with a semiconscious patient, who stated he could not move. His eyes were not
equally reactive to light. He was bleeding heavily from his head
312

769 F.2d 700 (11th Cir. 1985).
Id. at 704; see also Parton v. Corizon Healthcare, Inc., 2014 WL 4259457, *4 (E.D. Tenn.,
Aug. 28, 2014) (“A defendant‟s policy of failing to comply with its contractual obligations based
upon cost considerations could be seen as evidence of a custom or pattern of deliberate
indifference.”).
314
2004 WL 1673102 (D. Or. July 27, 2004), report and recommendation adopted by, 2004 WL
2059523 (D. Or. Sep. 14, 2014).
315
Id. at *9.
316
The allegations in ¶¶ 33 a-g, and 35 a-b, apply to Defendant Kris White.
313

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 wound.
 White was concerned that Mr. Green might have a serious head
injury, including a potentially fatal subdural hematoma or
intracranial bleed, in the courtroom.
 White did not conduct a neurological exam of Mr. Green in the
courtroom.
 White did not instruct the Lane County Jail deputies or Corizon
employees to take any neck or spine precautions for Mr. Green.
 White decided not to send Mr. Green to the hospital for further
evaluation.
 White knew that Mr. Green lost control of his bowels in the medical
clinic.
 White knew that loss of bowel control can be a sign of spinal cord
injury.
 White did not contact Dr. Montoya to discuss Mr. Green‟s condition.
 White knew that Mr. Green was going to be taken to a segregation
cell after leaving the medical clinic.
 White at no time instructed Lane County Jail deputies or Corizon
employees to take any neck or spine precautions for Mr. Green.
 White left the jail at 3:57 PM, abandoning her patient while
suspecting he had a spinal cord injury and that he was in neurogenic
shock.
 White destroyed Nurse Epperson‟s chart note and Nurse Smith‟s
Emergency Room Referral form, and placed a fraudulent Emergency
Room Referral form in Mr. Green‟s medical chart.
Deliberate evidence is the kindest way to describe White‟s care of Mr. Green.

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 2.

Sharon Epperson317

A jury can conclude, based on the evidence presented, that:
 Epperson did not instruct Lane County Jail deputies or Corizon
employees to take any neck or spine precautions for Mr. Green.
 Epperson knew that White did not conduct a neurological exam of
Mr. Green in the courtroom.
 Epperson did not conduct a neurological exam of Mr. Green in the
courtroom.
 Epperson knew that White was not sending Mr. Green to the hospital
for further evaluation, and deferred to White‟s decision.
 Epperson knew that Mr. Green lost control of his bowels in the
medical clinic, and knew that loss of bowel control can be a sign of
spinal cord injury.
 Epperson did not contact Dr. Montoya to discuss Mr. Green‟s
condition.
 Epperson spoke with Deputy Burnette twice about Mr. Green‟s lack
of movement. She did nothing in response to those phone calls.
 Epperson agreed that Mr. Green needed to go to the hospital after
she saw him at 3:35 PM.
 Epperson cleaned Mr. Green between 4:15 PM and 4:30 PM before
EMTs were called at 4:33 PM
 Epperson took no neck or spine precautions for Mr. Green in the
afternoon.
 Epperson left the jail before the EMTs arrived to take Mr. Green to
the hospital.
This is more than enough evidence to support a claim of deliberate indifference.

317

The allegations in ¶¶ 33 a-g apply to Defendant Sharon Epperson.
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 Corizon argues that Epperson should be dismissed because she was not “the senior
or ranking medical officer.”318 That is not relevant, because she had an independent duty
as a registered nurse to provide care for Mr. Green.319
3.

Vicki Thomas320

A jury could conclude, based on the evidence presented, that:
 Thomas thought Mr. Green “needed to go to the hospital right away”
to make sure there wasn‟t further injury to his head and spine.
 Thomas did not instruct the Lane County Jail deputies or Corizon
employees to take any neck or spine precautions for Mr. Green.
 Thomas knew that White decided not to send Mr. Green to the
hospital for further evaluation.
 Thomas agreed with the decision not to send Mr. Green to the
hospital for further evaluation.
 Thomas knew that Mr. Green lost control of his bowels in the
medical clinic, and knew that loss of bowel control can be a sign of
spinal cord injury.
 Thomas did not contact Dr. Montoya to discuss Mr. Green‟s
condition.
 Thomas agreed that Mr. Green needed to go to the hospital after she
saw him at 4:15 PM.
 Thomas cleaned Mr. Green between 4:15 PM and 4:30 PM before
EMTs were called at 4:33 PM.
 Thomas took no neck or spine precautions for Mr. Green in the
afternoon.

318

Corizon Brief, at 32.
Burrow Declaration, ¶¶ 8-11.
320
The allegations in ¶¶ 33 a-g apply to Defendant Vicki Thomas.
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  Thomas left the jail before the EMTs arrived to take Mr. Green to
the hospital.
There is more than enough evidence to support a claim of deliberate indifference.
4.

Jacob Pleich321

A jury can conclude, based on the evidence presented, that:
 Pleich did not instruct Lane County Jail deputies or Corizon
employees to take any neck or spine precautions for Mr. Green.
 Pleich thought there was a high potential that Mr. Green might have
a neurological or spinal injury.
 Pleich knew that White decided not to send Mr. Green to the hospital
for further evaluation.
 Pleich agreed with the decision not to send Mr. Green to the hospital
for further evaluation.
 Pleich did not contact Dr. Montoya to discuss Mr. Green‟s condition.
 Pleich saw the Lane County deputies place Mr. Green in the
segregation cell at 11:30 AM.
 Pleich visited Mr. Green in the segregation cell between 2:28 PM
and 2:34 PM. During that visit, Pleich was concerned that Mr.
Green had significant medical injuries. He knew that Mr. Green was
motionless and saying that he could not move.
 Pleich told Mr. Green: “I don‟t believe that you‟re completely
paralyzed. * * * If you were actually paralyzed, our medical staff
would have probably transported you to the hospital.” Pleich told
Mr. Green: “We‟ll definitely keep having the medical team check in
with you to make sure that you still have movement in your body.”
 Pleich did not take any steps to send Mr. Green to the hospital or to
urge the Corizon medical staff or send Mr. Green to the hospital.

321

The allegations in ¶¶ 33 a-g and 34 a-b apply to Defendant Jacob Pleich.
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 There is more than enough evidence to support a claim of deliberate indifference. The
six minute excerpt of Mr. Pleich speaking with Mr. Green could be shown to a law school
class to demonstrate the principle of deliberate indifference.
5.

Corizon Health, Inc.

Corizon, in a footnote, states that the corporation cannot be sued on the basis of
respondeat superior liability under § 1983.322 Plaintiffs acknowledge that the Ninth
Circuit recently reached this conclusion for the first time.323 For the reasons set forth
below, plaintiffs urge this Court to reach a different conclusion in the circumstances of
the case at bar.
In Adickes v. S.H. Kress & Company,324 plaintiff brought a § 1983 claim against
S.H. Kress & Company, asserting she was the victim of race discrimination. The Court
held that plaintiff could recover if she proved that a Kress employee violated her rights.325
In other words, the Court held that a private corporation could be liable under § 1983 on a
theory of respondeat superior. Twelve years later, Adickes was approvingly cited in
Lugar v. Edmondson Oil Co., Inc.,326 where a plaintiff was allowed to bring a § 1983
claim against a corporate creditor.327

322

Corizon Brief, at 29 n.9.
Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138-39 (9th Cir. 2012).
324
398 U.S. 144 (1970).
325
Id. at 152.
326
457 U.S. 922, 930 (1982).
327
A district court in the Ninth Circuit relied on this reasoning to hold that a corporation could be
sued on the basis of respondeat superior liability under § 1983. See Groom v. Safeway, Inc., 973
F. Supp. 987, 991 n.4 (W.D. Wash. 1997) (“[A] policy of shielding private employers from
liability or acts of their employees under § 1983 while subjecting them to liability for their
employees‟ state-law torts makes no sense.”).
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 In Richardson v. McKnight,328 the Court held that prison guards employed by a
for-profit corporation could not avail themselves of the qualified immunity defense often
used by state employees to escape § 1983 liability. The Court analyzed the historical role
of private companies performing government functions, and the policy reasons for
granting public employees qualified immunity, concluding that immunity is inappropriate
when a private corporation – insurable and competitive in the marketplace – performs the
work of government.329 The rationale of the Richardson court applies equally to the
question of respondeat superior.
These decisions are unsurprising, since “§ 1983 creates a species of tort liability”
and the Supreme Court has consistently interpreted the statute consistent with tort
liability.”330
Last year, in Shields v. Illinois Dept. of Corrections,331 the Seventh Circuit
analyzed this question in depth. The panel recognized that it was bound by the court‟s
prior opinions, but suggested that “a new approach may be needed for whether
corporations should be insulated from respondeat superior liability under § 1983.”332
After citing the above referenced Supreme Court decisions, the panel explained why it
believed corporations could be sued on the basis of respondeat superior under § 1983:
Private prison employees and prison medical providers have frequent
opportunities, through their positions, to violate inmates‟ constitutional
328

521 U.S. 399, 412 (1997).
Id. at 406-12.
330
Heck v. Humphrey, 512 U.S. 477, 483 (1994).
331
Shields v. Illinois Department of Corrections, 746 F.3d 782, 789-96 (7th Cir. 2014), cert.
denied, 2015 WL 132994 (2015).
332
Id. at 795.
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 rights. It is also generally cheaper to provide substandard care than it is to
provide adequate care. Private prisons and prison medical providers are
subject to market pressures. Their employees have financial incentives to
save money at the expense of inmates‟ well-being and constitutional rights.
The unavailability of qualified immunity for these employees is a deterrent
against such conduct, but respondent superior liability for the employer
itself is likely to be more effective at deterring such actions. Insulating
private corporations from respondeat superior liability significantly
reduces their incentives to control their employees‟ tortious behavior and to
ensure respect for prisoners‟ rights. The results of the current legal
approach are increased profits for the corporation and substandard services
both for prisoners and the public.
***
[A] new approach may be needed for whether corporations should be
insulated from respondeat superior liability under § 1983. Since prisons
and prison medical services are increasingly being contracted out to private
parties, reducing private employers‟ incentives to prevent their employees
from violating inmates‟ constitutional rights raises serious concerns.
Nothing in the Supreme Court‟s jurisprudence or the relevant Circuit Court
decisions provides a sufficiently compelling reason to disregard the
important policy considerations underpinning the doctrine of respondeat
superior. And in a world of increasingly privatized state services, the
doctrine could help to protect people from tortious deprivations of their
constitutional rights.333
Having set forth a persuasive argument in favor of § 1983 respondeat superior liability
for corporations, the panel refused to so rule because the pro se plaintiff “has not asked
us to overrule” Seventh Circuit precedent to the contrary.334
The case at bar case provides an example of the situation described by the Seventh
Circuit. Deputy Burnette called the Corizon medical office twice to report that Mr. Green
was not moving. Corizon attempts to defend that claim by arguing that plaintiffs have

333

Id. at 794-95.
Id. at 795
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 failed to identify the individual Corizon employee who received those calls.335

As

explained above, however, Corizon made no effort to figure out which employee received
those calls, either because it simply did not care or because identifying the specific
employee would subject that employee to liability.
The recent Ninth Circuit opinion contains little analysis of this issue. It is unclear
whether the arguments advanced here were considered by the Court. Plaintiffs urge this
Court to follow Adickes and rule that Corizon can be subject to respondeat superior
liability under § 1983.
C.

Supervisory Claims (Corizon Brief, at 35-39)

Plaintiffs contend that Dr. Carl Keldie is responsible in his supervisory capacity
for the deliberate indifference of the Corizon employees.336
Keldie was the Chief Medical Officer for Corizon and one of its predecessor
companies (Prison Health Services) from September 2000 through the end of 2010, and
then again from late 2011 through March 2013. As set forth above, Corizon and its
predecessor companies have a long history of deliberate indifference to the serious
medical needs of inmates under their care. Dr. Keldie was on notice that Corizon‟s
policies violated constitutional standards and placed inmates at risk of serious physical
injury or death.
In M.H. v. County Of Alameda, Corizon and Dr. Orr were defendants in a § 1983
alleging improper medical screening and supervisory liability. Denying their motions for
335

Corizon Brief, at 32-33 & n. 10.
Plaintiff concedes that Justin Montoya and Vicki Thomas should be dropped from the “postinjury” supervisory liability claims.
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 summary judgment, the Court held:
A reasonable jury may find that Dr. Orr was aware of the failure to
implement policies Corizon and the NCCHC adopted, that he ratified or
caused the failure, and that his inaction and omissions amounted to
deliberate indifference to the serious medical needs of inmates in Harrison's
circumstances.337
What happened to Kelly Green on February 12, 2013 was the inevitable result of
Corizon‟s business model – a business model that Keldie helped to implement. As a
result, a jury may hold Keldie responsible for the consequences of that business model.338
CONCLUSION
This Court should deny Corizon‟s motion for summary judgment in its entirety.
DATED this 17th day of February, 2015.
ROSENTHAL GREENE & DEVLIN, P.C.
/s/ Elden M. Rosenthal
Elden M. Rosenthal, OSB No. 722174
John T. Devlin, OSB No. 042690
Of Attorneys for Plaintiff

337

2014 WL 1429720, at *31.
See Starr, 652 F.3d at 1207 (“A plaintiff may state a claim against a supervisor for deliberate
indifference based upon the supervisor‟s knowledge of and acquiescence in unconstitutional
conduct by his or her subordinates.”); see also Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)
(“Supervisory liability exists even without overt personal participation in the offensive act if
supervisory officials implement a policy so deficient that the policy itself is a repudiation of
constitutional rights and is the moving force of the constitutional violation”).
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