A pro-se lawsuit filed against Multnomah County, the Multnomah County Sheriff's Office (MCSO), several MCSO deputies, and members of the Multnomah County Detention Center (MCDC) medical staff has survived the first part of a bifurcated summary judgement phase largely intact. CopBlaster.com founder Cyrus Sullivan filed the lawsuit in 2019 for excessive force, assault & battery, deliberate indifference to serious medical needs, negligence, and defamation for conduct the occurred in 2017. Multnomah County moved for summary judgement in an effort to dismiss all of Sullivan's claims last year, but United States District Judge Jennifer Zipps didn't rule on the motion until yesterday. Zipps granted the motion in part and denied it in part.
Claims Not Dismissed
The claims that survived include claims of excessive force against two deputies; assault & battery against Multnomah County for the conduct of their deputies; deliberate indifference to serious medical needs against Multnomah County and Sheriff Mike Reese based on a custom of failing to allow detainees to attend outside medical appointments when scheduling conflicts with court dates; not allowing inmates to have hard braces; and state law negligence claims based on inadequate medical care against Multnomah County.
Sullivan won a major victory by convincing Judge Zipps that the Fourteenth Amendment standard of review applies to excessive force claims brought by detainees awaiting sentencing after being found guilty of violating supervised release conditions. That is because even after a federal defendant is found to have violated a condition of supervision it is still within the court's discretion not to revoke supervised release, so until that person is sentenced they are the equivalent of a pre-trial detainee and not a sentenced inmate. Multnomah County argued that because Sullivan had been convicted of a crime, was serving a sentence of supervised release, and was being held in connection with that conviction that the more stringent requirements of the Eighth Amendment's cruel and unusual punishments clause applies. Under the Eight Amendment Sullivan would have to prove that deputies used force maliciously and sadistically for the purpose of causing harm, but under the Fourteenth Amendment's due process clause he only needs to show that their use of force was objectively unreasonable. Sullivan maintains that the use of force would still violate the Eighth Amendment because Deputy Timothy Barker intentionally broke his left arm for the purpose of inflicting pain in retaliation for Sullivan's prior conduct. However, under the Fourteenth Amendment Sullivan does not need to prove Barker's intent, just that Barker's act of twisting his left arm away from his body so hard that his left humerus snapped in half was objectively unreasonable under the circumstances. The action was unreasonable because at that point Sullivan was laying face down on a mattress, was not resisting at all, was not in a position to resist at all even if he wanted to, and even if he were resisting Barker and Sgt. Matthew Ingram had Sullivan under control. They had him under so much control due in part to putting all of their body weight on his body to the point that he had difficulty breathing and was quoted by deputies as saying "I can't breathe." A defenseless prisoner with two grown men on top of him is not a threat capable of justifying pulling his arm away from his body hard enough to break it. Even if Sullivan had tried to resist when Barker uncuffed his hand such force would not have been reasonable. The force is therefore excessive under the Fourteenth Amendment and the resulting pain amounts to a punishment without due process of law.
Under Oregon state law, Multnomah County is liable for assault and battery committed by correctional officers. For that reason Judge Zipps dismissed the assault and battery claims against every defendant except Multnomah County. This is good news for Sullivan because it means the county as a municipality could be held liable instead of private individuals should Sullivan prevail at trial.
Under the Fourteenth Amendment, Multnomah County is liable if an inmate suffers injury due to a policy or custom. Pain is a form of injury, so if a county policy or custom caused Sullivan to experience significantly more pain while recovering than he otherwise would have then they are liable for the additional pain. In this case the county has a custom of cancelling outside medical appointments if the inmate is scheduled to appear in court on the same day. As a result, Sullivan was not taken back to the hospital for a follow-up appointment until five weeks after his arm was broken instead of one week as requested by the hospital. During that time every follow-up appointment scheduled by the jail conflicted with a court date, so jail staff chose to take him to court instead.
When he finally did get to the hospital, the deputies that escorted him there refused to allow his doctor to give him a sarmiento brace. A sarmiento brace is a hard plastic brace designed to immobilize fractured humerus bones (https://www.braceability.com/products/sarmiento-brace). Deputies claimed that a small metal component made the brace a safety risk, so the best they would allow him to have was a sling. Sullivan later learned from his doctor that had he been given a sarmiento brace the week after his injury that his pain would have been significantly less due to the bones not moving around. Judge Zipps is now giving Sullivan the opportunity to solicit expert testimony to show that his recovery would have been significantly less painful if it were not for county policies prioritizing court appearances over medical appointments and not allowing inmates with broken arms to wear hard plastic braces.
Under Oregon state law, Multnomah County is liable for medical negligence if "the County medical staff did not meet the applicable standard of care exercised by a reasonably careful medical professional with like training and expertise in the community." Sullivan believes that he can meet this burden due to medical staff failing to provide him with the level of care that the hospital claims they would have provided had he been taken back there on time. The medical staff at MCDC should have provided Sullivan with a hard plastic brace without any metal parts no later than a week after his injury. We did a Google search for "sarmiento brace" and found results on the first page that don't appear to have any metal components (https://www.alimed.com/humeral-fracture-orthosis-over-the-shoulder-hfb-os.html). Multnomah County was negligent in this case for failing to stock sarmiento braces for inmates that suffer broken arms and not ordering one for Sullivan after his arm was broken.
Judge Zipps dismissed several claims against Multnomah County and dismissed most of the defendants from the claims that survived. Sullivan's claim of excessive force against Multnomah County and supervising staff members; using force to conduct a strip search without giving Sullivan an opportunity to comply voluntarily; failing to intervene; failing to prescribe stronger pain medication; defamation and claims against individuals personally involved in making treatment decisions were all dismissed.
Zipps ruled that Sullivan failed to show that a reasonable jury could have concluded that a county policy or custom was the moving force behind his excessive force claim. For that reason she dismissed excessive force claims against Multnomah County and supervising MCSO staff members which leaves deputies Barker and Ingram as the only defendants in the Fourteenth Amendment excessive force case.
We are disturbed by Judge Zipps' ruling regarding the use of force to conduct a strip search without giving Sullivan the opportunity to comply voluntarily. Sullivan compares what happened to tackling a suspect on the street without warning just because you think he will probably resist. Such uses of force are typically considered excessive because suspects are entitled to the opportunity to comply with officers before force can reasonably be used. If an officer tells someone to get on the ground and they try to run that's one thing, but its another to just tackle someone because you think they will probably try to run if asked to get on the ground. Staff used force to take Sullivan to the floor and cut his clothes off using scissors without giving him the opportunity to voluntarily comply with the strip search. Usually when MCDC inmates are placed in disciplinary their cell door is closed, they are asked to strip naked, bend/caught, and pass their clothes through the food slot to receive their jumpsuit. Sullivan was simply taken to the ground and his clothes were cut off. We believe that Sullivan was entitled to the opportunity to cooperate with the strip search and had he been given the opportunity his arm would not have been broken. Sullivan had already stopped resisting before riding the elevator down to the disciplinary unit, so there was no way staff could have known whether or not he would have cooperated with the strip search. Judge Zipps ruled that deputies "were reasonably concerned at that point that Plaintiff was repeatedly not complying with orders and that allowing Plaintiff room to remove his own clothes could pose a threat." Zipps was unpersuaded by 9th Circuit precedent which makes it clear that any use of force to gain compliance with a non-existent order is excessive no matter how reasonable the concern that the inmate would not comply with an order if given the opportunity. See Furnace v. Sullivan, 705 F.3d 1021 (9th Cir. 2013), "Officers cannot justify force as necessary for gaining inmate compliance when inmates have been given no order with which to comply."
Zipps' decision not to apply Furnace to Sullivan's case torpedoed his failure to intervene claim. Sullivan claimed that other deputies had the opportunity to stop Barker and Ingram for using force to conduct a strip search without giving Sullivan an order to comply with. Had deputies intervened at that point his arm would not have been broken. By refusing to declare the strip search unlawful Judge Zipps could then argue that there was nothing other deputies could do to stop Barker from suddenly twisting Sullivan's arm to its breaking point.
When Sullivan returned to MCDC from the hospital he had with him a prescription for oxycodone every six hours. Jail staff immediately reduced that prescription to Norco three times a day because they don't allow inmates to receive anything stronger than Norco and pills are only passed out en-mass three times a day. Sullivan argued that this policy is deliberately indifferent to the serious medical needs of inmates whose pain management needs require stronger medication delivered more frequently. While it is true that Norco significantly reduced Sullivan's pain, we also believe that Sullivan should be given the opportunity to seek expert testimony as to what difference stronger medication taken more regularly would have made. Zipps is already giving him that opportunity with regards to the lack of a sarmiento brace even thought such braces do more to relieve pain than they do to help bones heal straight.
Finally, Judge Zipps dismissed all of Sullivan's defamation claims on the grounds that Sullivan failed to file them in a timely manner. Oregon state law has a 1 year statute of limitations on defamation claims which apparently cannot be circumvented by filing suit in federal court where statutes of limitations are typically longer. Even if Sullivan had filed his defamation claim on time it appears that Oregon state law has a loophole that grants immunity to law enforcement officers that make false statements in official reports. The immunity is due to statutory language saying that officials cannot be sued for defamation based on official statements they make as part of their duties and courts have upheld those laws citing the chilling effect that exposing officers to defamation liability would have. They have basically concluded that forcing officers to tell the truth at all times would be such a burden to the courts that society is better off letting them lie as they wish as long as those lies are not made under oath.
A total of 15 named defendants were dismissed from the suit entirely. Defendant Multnomah County Sheriff's Office was dismissed because they are a subdivision of Multnomah County so a suit against the county is the same as a suit against them. Sheriff Mike Reese was dismissed in his individual capacity but remains in his official capacity. The other defendants dismissed from the suit are Wendy Muth, Phil Hubert, Paul Simpson, Uwe Pemberton, Timothy Moore, Gary Glaze, Kurtiss Morrison, David Kovachevich, Erica Barker, Michael Seale, Brook Holter, Angelina Platas, and Halcyon Dodd.