Abraham v. Corizon Health, Inc.

• Decision Date: 03 June 2022
• Docket Number: SC S068265
• Citation: 369 Or. 735,511 P.3d 1083
• Parties: Andrew ABRAHAM, on behalf of himself, and for all others similarly situated, Plaintiff-Appellant, v. CORIZON HEALTH, INC., fka Prison Health Services, Inc., Defendant-Appellee.
• Court: Oregon Supreme Court

369 Or. 735

511 P.3d 1083

Andrew ABRAHAM, on behalf of himself, and for all others similarly situated, Plaintiff-Appellant,

v.CORIZON HEALTH, INC., fka Prison Health Services, Inc., Defendant-Appellee.

SC S068265

Supreme Court of Oregon.

Argued and submitted November 3, 2021

Resubmitted January 25, 2022

June 3, 2022

Carl Post, Law Offices of Daniel Snyder, Portland, argued the cause and filed the brief for plaintiff-appellant. Also on the brief was John Burgess.

SaraKobak, Schwabe, Williamson & Wyatt, PC, Portland, argued the cause and filed the brief for defendant-appellee. Also on the brief was Anne M. Talcott.

Shenoa Payne, Shenoa Payne Attorney at Law PC, Portland, filed the brief for amici curiae Oregon Trial Lawyers Association.

Daniel Greenfield, Kathrina Szymborski, and Brad Sukerman, Roderick and Solange MacArthur Justice Center, Chicago, Illinois, and Washington, DC., and Aliza B. Kaplan, Criminal Justice Reform Clinic, Lewis & Clark Law School, Portland, filed the brief for amici curiae Disability Rights Oregon, Lewis & Clark Law School's Criminal Justice Reform Clinic, and American Civil Liberties Union of Oregon.

Before Walters, Chief Justice, and Balmer, Flynn, Duncan, Nelson, Garrett, and DeHoog, Justices.^*

WALTERS, C.J.

In this opinion, we answer a question that has been certified to us by the United States Court of Appeals for the Ninth Circuit, concerning the applicability of Oregon's anti-discrimination laws to a private contractor that provides healthcare services within a jail. Plaintiff filed a lawsuit against defendant, a private entity that contracted with the Clackamas County Jail to provide healthcare services to incarcerated persons, alleging that defendant had discriminated against him on the basis of disability, in violation of ORS 659A.142(4), which prohibits disability discrimination by places of public accommodation. The district court held that defendant was not a place of public accommodation, as defined by ORS 659A.400. The Ninth Circuit asked us to help it to resolve plaintiff's appeal of the dismissal of his state law claim and certified to us the following question:

"Is a private contractor providing healthcare services at a county jail a ‘place of public accommodation’ within the meaning of Oregon Revised Statutes § 659A.400 and subject to liability under § 659A.142 ?"

As we explain below, the answer to that question is yes.

BACKGROUND

We take the following summary of the factual background and procedural posture of the case from the Ninth Circuit's certification order and from the record. Because the question certified to us arises from the appeal of the dismissal of plaintiff's complaint, we, like the Ninth Circuit, assume that the facts alleged in the complaint are true. See Abraham v. Corizon Health, Inc. , 985 F.3d 1198, 1199-200 (9th Cir. 2021) ("Because the district court decided this case on a motion to dismiss, we assume the truth of the facts as set out in the complaint.").

Plaintiff is deaf and prefers to communicate through American Sign Language (ASL), which is his primary language. Plaintiff's ability to communicate in English is more limited. In October 2015, plaintiff was arrested and taken to the Clackamas County Jail. Based on communications with plaintiff without the assistance of an ASL interpreter, a deputy incorrectly flagged plaintiff as being a suicide risk.

As a result, plaintiff was placed on suicide watch. Defendant has a contract with Clackamas County to provide medical and mental health services at the jail and was responsible for plaintiff's care and for further assessment. Over the course of three days, defendant's staff was unable to communicate effectively with plaintiff but failed to provide an ASL interpreter. As a result of defendant's staff's misunderstandings, plaintiff, who is diabetic, was denied meals and access to insulin

. Also, as a result of defendant's inability to communicate with plaintiff, plaintiff remained on suicide watch for three days.

Plaintiff filed suit against defendant in federal district court alleging, among other claims, that defendant was a "place of public accommodation" that had discriminated against him because he is "an individual with a disability," in violation of ORS 659A.142(4). Plaintiff initially sought only equitable relief, and the district court dismissed the claim on standing grounds because plaintiff was no longer incarcerated. In the order that is the basis for plaintiff's current appeal, the district court denied plaintiff's motion to amend his complaint to add a claim for compensatory damages on the grounds that the amendment would be futile. The district court concluded that defendant was not a "place of public accommodation," as defined by ORS 659A.400(1)(a), meaning that ORS 659A.142(4) did not apply to defendant's provision of medical services in a jail setting.

Plaintiff appealed to the Ninth Circuit, arguing that the district court had construed the statutory term "public accommodation" too narrowly and asking the Ninth Circuit to certify that question of state law to this court. In response, defendant both disputed plaintiff's interpretation of ORS 659A.400(1)(a) and argued that ORS 659A.142 was inapplicable to plaintiff's case for a second reason: Plaintiff was neither a "customer" nor "patron" of defendant's services.

The Ninth Circuit reviewed Oregon case law interpreting ORS 659A.400(1)(a) and, noting that "Oregon courts have yet to address whether a private contractor like [defendant] constitutes a ‘place of public accommodation,’ " expressed uncertainty about whether Oregon courts would conclude that defendant meets the definition.

Abraham , 985 F.3d at 1202. The Ninth Circuit likewise noted that no Oregon case addresses whether ORS "659A.142(4) ’s use of the terms ‘customer or patron’ excludes plaintiffs like" plaintiff. Id. Rather than decide those questions of state law itself, the Ninth Circuit certified the following question to this court:

"Is a private contractor providing healthcare services at a county jail a ‘place of public accommodation’ within the meaning of Oregon Revised Statutes § 659A.400 and subject to liability under § 659A.142 ?"

Abraham , 985 F.3d at 1199. We accepted the certified question.

ANALYSIS

We understand the certified question to present several distinct, though related, issues of statutory construction. The first question is whether plaintiff was a "customer" or "patron" of defendant's services. Defendant has not renewed that argument in its briefing before this court; nevertheless, we understand the Ninth Circuit's certification order to encompass that question, which must be resolved in plaintiff's favor for defendant to be "subject to liability under [ORS] 659A.142." The second question for our consideration, assuming that we decide the first question in plaintiff's favor, is whether defendant qualifies as a "place of public accommodation," as that term is defined in ORS 659A.400. Resolving that dispute, however, itself involves two distinct questions: whether defendant meets the general definition of a public accommodation contained in ORS 659A.400 (1)(a) and, if so, whether defendant falls into an exclusion from that definition for "local correction facilit[ies]," contained in ORS 659A.400(2)(d). To answer each of those questions, we employ our ordinary approach to statutory construction, considering text and context together with any legislative history that we might find helpful. State v. Gaines , 346 Or. 160, 171-72, 206 P.3d 1042 (2009).

We begin by addressing whether plaintiff qualifies as a "customer or patron" of defendant's services. That question is made relevant by the wording of ORS 659A.142(4), the statutory basis of plaintiff's claim against defendant:

"It is an unlawful practice for any place of public accommodation, resort or amusement as defined in ORS 659A.400, or any person acting on behalf of such place, to make any distinction, discrimination or restriction because a customer or patron is an individual with a disability."

ORS 659A.142(4). To state a claim under ORS 659A.142(4), plaintiff must therefore show that he was a "customer or patron" who was subjected to "any distinction, discrimination or restriction" by defendant or its agents because he "is an individual with a disability."

Before the Ninth Circuit, defendant argued that "an involuntarily detained inmate in a jail is not a ‘customer’ or ‘patron’ of jail services in the ordinary sense of purchasing or seeking out those medical services." Defendant relied on Fenimore v. Blachly-Lane County C.E.A. , 297 Or. App. 47, 59, 441 P.3d 699 (2019), where the Court of Appeals held that a plaintiff who could neither actually nor potentially use the defendant's services did not qualify as a patron or customer.¹

Responding to that argument, plaintiff argues that all that is required for a plaintiff to be a "patron or customer" is that the plaintiff use the defendant's services. He argues that the ordinary meaning of those terms does not restrict the coverage of ORS 659A.142(4) to individuals with disabilities who personally pay for the services that they use.

Before turning to the text, we first clarify the precise question before us. We do not need to decide, in this case, whether plaintiff would qualify as a customer or patron of the Clackamas County Jail. Defendant is not the jail; rather, it is a separate entity that provides a set of services to people in the jail's custody. Defendant's argument is that, because plaintiff has not alleged that he personally paid for those services, or because he had no choice but to receive defendant's services, he does not qualify as a "patron" or "customer" within the ordinary meaning of those terms.

Unlike "place of public accommodation," neither "customer" nor "patron" is a statutorily defined term in the context of ORS 659A.142.² As a result, we begin our inquiry into their ordinary meanings by looking to the pertinent dictionary definitions. "Cust...