Andrew Abraham v. Corizon Health, Inc. ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANDREW ABRAHAM, on behalf of No. 19-36077
himself, and for all others similarly
situated, D.C. No.
Plaintiff-Appellant, 3:16-cv-01877-
JR
v.
ORDER
CORIZON HEALTH, INC., FKA Prison CERTIFYING
Health Services, Inc., QUESTION TO
Defendant-Appellee. OREGON
SUPREME
COURT
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Argued and Submitted December 7, 2020
Seattle, Washington
Filed January 28, 2021
Before: Eric D. Miller and Daniel A. Bress, Circuit Judges,
and Stanley A. Bastian, * District Judge.
Order by Judge Miller
*
The Honorable Stanley A. Bastian, Chief United States District
Judge for the Eastern District of Washington, sitting by designation.
2 ABRAHAM V. CORIZON HEALTH
SUMMARY **
Certification of Question to Oregon Supreme Court
The panel certified the following question to the Oregon
Supreme 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?
COUNSEL
Carl Post (argued) and John Burgess, Law Offices of Daniel
J. Snyder, Portland, Oregon, for Plaintiff-Appellant.
Sara Kobak (argued) and Anne M. Talcott, Schwabe,
Williamson & Wyatt P.C., Portland, Oregon, for Defendant-
Appellee.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
ABRAHAM V. CORIZON HEALTH 3
ORDER
MILLER, Circuit Judge:
We respectfully certify the following question to the
Oregon Supreme Court under Oregon Revised Statutes
§ 28.200:
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?
The certified question of law is determinative of this appeal,
and there appears to be no controlling precedent in the
decisions of the Oregon Supreme Court or the Oregon Court
of Appeals. Or. Rev. Stat. § 28.200. We proceed to explain
“all facts relevant to the question[] certified,” “the nature of
the controversy in which the question[] arose,” and the
“question[] of law to be answered.” Id. § 28.210.
I
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. Wojciechowski v. Kohlberg Ventures, LLC, 923
F.3d 685, 688 n.2 (9th Cir. 2019).
On October 23, 2015, Andrew Abraham was arrested
and taken to the Clackamas County Jail. Abraham is deaf
and communicates through American Sign Language (ASL).
He is also diabetic. While in jail, Abraham was deemed a
suicide risk and placed for several days “under the care and
supervision” of Corizon Health, Inc., a private healthcare
company that contracts to provide medical services to the
4 ABRAHAM V. CORIZON HEALTH
inmates of the Clackamas County Jail. According to
Abraham, these medical services were provided at the jail.
Corizon did not provide Abraham an ASL interpreter.
Instead, it used “paper sheets to communicat[e]” with
Abraham. Abraham alleges that Corizon’s failure to provide
an ASL interpreter resulted in a series of
miscommunications that caused him to be incorrectly placed
on suicide watch and denied meals and insulin.
Abraham sued Corizon on behalf of a putative class of
deaf inmates under the Oregon Public Accommodation Act,
which makes it unlawful “for any place of public
accommodation” to discriminate against “a customer or
patron” because he or she “is an individual with a disability.”
Or. Rev. Stat. § 659A.142(4). He also brought various
federal claims, which are no longer at issue here. The district
court dismissed Abraham’s claim under section 659A.142
because the complaint sought only equitable relief, and as
Abraham was no longer incarcerated, he lacked standing to
seek such relief.
Abraham moved to amend his complaint to include a
demand for compensatory damages. The district court
denied leave to amend as futile because it concluded that
section 659A.142 “does not apply to [Corizon]’s provision
of medical services in the Jail.” Specifically, the district
court held that Corizon is not a “place of public
accommodation” under Oregon Revised Statutes
§ 659A.400(1)(a).
Abraham appealed. In an unpublished memorandum
disposition, we affirmed the dismissal of the federal claims
and vacated and remanded as to Abraham’s section
659A.142 claim. Abraham v. Corizon Health, Inc., 775
F. App’x 301, 303 (9th Cir. 2019). We noted that “Oregon
ABRAHAM V. CORIZON HEALTH 5
courts have yet to address whether a private contractor like
Corizon constitutes a ‘place of public accommodation,’” and
we instructed the district court to “consider its jurisdiction
over Abraham’s § 659A.142 claim” anew in light of the
dismissal of the federal claims. Id.
On remand, the district court determined that it had
diversity jurisdiction over Abraham’s section 659A.142
claim. See 28 U.S.C. § 1332. Abraham again moved to
amend his complaint to allege compensatory damages. He
also asked the district court to certify the following question
to the Oregon Supreme Court: “Whether private entities that
provide services at a local correction facility are excluded
from the definition of ‘a place of public accommodation’ and
therefore exempt from Or. Rev. Stat. § 659A.142?”
The district court referred both motions to a magistrate
judge. The magistrate judge recommended resolving the
dispositive question of Oregon law. The magistrate judge
reasoned that “Oregon’s public accommodation laws apply
solely to private entities that are open to the public or provide
services/accommodations to the public,” and “the statutory
definition of ‘place of public accommodation’ expressly
excludes places furnishing services to involuntarily detained
individuals (i.e., federal and local correctional facilities,
state hospitals, and youth correction facilities), as well as
places that are in their ‘nature distinctly private.’”
Accordingly, the magistrate judge recommended that the
motion to certify be denied and the motion to amend the
complaint be denied as futile. The district court adopted the
findings and recommendation in full and denied the motions.
II
Under Oregon law, “[i]t is an unlawful practice for any
place of public accommodation, resort or amusement as
6 ABRAHAM V. CORIZON HEALTH
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.” Or. Rev. Stat. § 659A.142(4). The question of
statutory interpretation on which this case turns is whether
Corizon is a “place of public accommodation.” Section
659A.400 provides the following definition:
(1) A place of public accommodation, subject
to the exclusions in subsection (2) of this
section, means:
(a) Any place or service offering to the
public accommodations, advantages,
facilities or privileges whether in the
nature of goods, services, lodgings,
amusements, transportation or otherwise.
(b) Any place that is open to the public
and owned or maintained by a public
body, as defined in ORS 174.109,
regardless of whether the place is
commercial in nature.
(c) Any service to the public that is
provided by a public body, as defined in
ORS 174.109, regardless of whether the
service is commercial in nature.
(2) A place of public accommodation does
not include:
(a) A Department of Corrections
institution as defined in ORS 421.005.
ABRAHAM V. CORIZON HEALTH 7
(b) A state hospital as defined in ORS
162.135.
(c) A youth correction facility as defined
in ORS 420.005.
(d) A local correction facility or lockup as
defined in ORS 169.005.
(e) An institution, bona fide club or place
of accommodation that is in its nature
distinctly private.
Were we to answer the question presented, we would be
required to predict how the Oregon Supreme Court would
decide the issue. See Erie R.R. Co. v. Tompkins, 304 U.S. 64,
78–80 (1938); Norcia v. Samsung Telecomms. Am., LLC,
845 F.3d 1279, 1284 (9th Cir. 2017). In this case, the parties
make competing arguments based on the statute’s text and
history. Abraham contends that Corizon’s treatment of
inmates at Clackamas County Jail is a “service” offered “to
the public” under section 659A.400(1)(a). He explains that
Corizon lacks discretion as to whom its services are provided
and must treat all inmates incarcerated at the jail. Abraham
further argues that Corizon, as a private contractor, may not
invoke the exemption for “local correction facilit[ies].”
Instead, he suggests that the legislature’s specific exemption
of state-controlled entities in section 659A.400(2)(d) creates
a negative implication that private providers of services at a
jail are encompassed by the basic definition in section
659A.400(1)(a).
Corizon, by contrast, argues that it does not offer its
services “to the public,” or is otherwise exempt from liability
under sections 659A.400(2)(d) and (e). Corizon explains that
8 ABRAHAM V. CORIZON HEALTH
it serves only jail inmates, who must be arrested and
incarcerated to be eligible for treatment, and thus does not
offer its services to the public at large. Corizon also points
to legislative history that, in its view, reflects an intent to
exclude all services provided at correctional facilities from
the statute’s reach. Finally, Corizon argues that it cannot be
liable to Abraham because inmates who receive services at a
jail are not “customer[s] or patron[s]” under section
659A.142(4).
Our assessment of those arguments is informed by
decisions of the Oregon courts construing the term “place of
public accommodation” in a variety of contexts. See, e.g.,
Schwenk v. Boy Scouts of Am., 551 P.2d 465, 465–70 (Or.
1976) (Boy Scouts); Lahmann v. Grand Aerie of Fraternal
Ord. of Eagles, 121 P.3d 671, 673 (Or. Ct. App. 2005)
(national fraternal organization); Lloyd Lions Club of
Portland v. International Ass’n of Lions Clubs, 724 P.2d
887, 888–91 (Or. Ct. App. 1986) (local club); Parsons v.
Henry, 672 P.2d 717, 721 (Or. Ct. App. 1983) (custom
builder); Graham v. Kold Kist Beverage Ice, Inc., 607 P.2d
759, 762 (Or. Ct. App. 1979) (wholesaler).
Most recently, the Oregon Court of Appeals has
articulated a two-part test to determine whether a private
entity is a “place of public accommodation” under section
659A.400(1)(a), asking first whether “the organization is a
business or commercial enterprise” and, second, whether “its
membership policies are so unselective that the organization
can fairly be said to offer its services to the public.”
Lahmann, 121 P.3d at 673 (internal quotation marks and
citation omitted). But Oregon courts have yet to address
whether a private contractor like Corizon constitutes a “place
of public accommodation.” And although Corizon seems
clearly to be “a business or commercial enterprise,” we are
ABRAHAM V. CORIZON HEALTH 9
uncertain whether Oregon courts would consider it “to offer
its services to the public.” Id. Corizon, a private healthcare
provider that contracts with an exempt state-controlled
entity, is unlike the businesses and membership-based
organizations previously considered in the Oregon case law.
Nor does any case resolve whether Corizon is exempt under
section 659A.400(2)(d), or whether section 659A.142(4)’s
use of the terms “customer or patron” excludes plaintiffs like
Abraham.
In sum, there is no controlling precedent of the Oregon
Supreme Court or the Oregon Court of Appeals as to whether
Corizon is a “place of public accommodation” under section
659A.400 and subject to liability under section 659A.142.
See Or. Rev. Stat. § 28.200; Western Helicopter Servs., Inc.
v. Rogerson Aircraft Corp., 811 P.2d 627, 631–32 (Or.
1991).
III
Abraham has asked us to certify the question to the
Oregon Supreme Court rather than decide it ourselves. The
grant of diversity jurisdiction in section 1332 authorizes
federal courts to decide questions of state law—even
questions of state law that lack obvious answers. Thus, “[w]e
invoke the certification process only after careful
consideration and do not do so lightly.” Murray, 924 F.3d at
1072 (quoting Kremen v. Cohen, 325 F.3d 1035, 1037 (9th
Cir. 2003)). But our recent decision in Murray reminds us to
evaluate certification based on such factors as “(1) whether
the question presents important public policy ramifications
yet unresolved by the state court; (2) whether the issue is
new, substantial, and of broad application; (3) the state
court’s caseload; and (4) the spirit of comity and
federalism.” Id. (internal quotation marks and citation
omitted).
10 ABRAHAM V. CORIZON HEALTH
The first two factors are particularly relevant here, and
they both counsel in favor of certification. Most importantly,
the certified question is one of first impression that
implicates two key policy interests of the State of Oregon:
the State’s sovereign interest in the enforcement of its
antidiscrimination laws and its proprietary interest in its
relationships with service providers at correctional facilities.
In addition, the question is likely to recur and may also apply
to other private contractors providing services at correctional
facilities and other statutorily exempt state facilities. See Or.
Rev. Stat. § 659A.400(2)(a)–(d).
We further conclude that the criteria for certification set
forth in Oregon Revised Statutes § 28.200 are satisfied. See
generally Western Helicopter, 811 P.2d at 630 (“(1) The
certification must come from a designated court; (2) the
question must be one of law; (3) the applicable law must be
Oregon law; (4) the question must be one that ‘may be
determinative of the cause;’ and (5) it must appear to the
certifying court that there is no controlling precedent in the
decisions of this court or the Oregon Court of Appeals.”
(quoting Or. Rev. Stat. § 28.200)).
For these reasons, we respectfully ask the Oregon
Supreme Court to exercise its discretionary authority to
accept and decide the question set forth above. “Our
phrasing of the question[] should not restrict the [c]ourt’s
consideration of the issues involved,” and “[w]e
acknowledge that the court may reformulate the relevant
state law questions as it perceives them to be, in light of the
contentions of the parties.” Raynor v. United of Omaha Life
Ins. Co., 858 F.3d 1268, 1273 (9th Cir. 2017) (internal
quotation marks, alterations, and citations omitted). If the
court decides that the question presented is inappropriate for
certification, or if it declines the certification for any other
ABRAHAM V. CORIZON HEALTH 11
reason, we request that it so state, and we will resolve the
question according to our best understanding of Oregon law.
Abraham’s motion to certify a question to the Oregon
Supreme Court is therefore GRANTED. The clerk of this
court shall file a certified copy of this order with the Oregon
Supreme Court under Oregon Revised Statutes § 28.215.
This appeal is withdrawn from submission and will be
submitted following receipt of the Oregon Supreme Court’s
opinion on the certified question or notification that it
declines to answer the certified question. The clerk is
directed to administratively close this docket pending further
order. The panel shall retain jurisdiction over further
proceedings in this court. The parties shall notify the clerk
of this court within one week after the Oregon Supreme
Court accepts or rejects certification. In the event the Oregon
Supreme Court grants certification, the parties shall notify
the clerk within one week after the court renders its opinion.
IT IS SO ORDERED.
/s/ Eric D. Miller
Eric D. Miller,
United States Circuit Judge,
Presiding