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Hubbard v. State ex rel. The Oklahoma Department of Human Services

United States District Court, W.D. Oklahoma

March 21, 2017

KEN HUBBARD, and CONNIE HUBBARD, as Administrators of the Estate of ANDREW DEWAYNE PRIOR, deceased, and as Guardians and Next Friends of C.E.H., a Minor Child, and E.J.H., a Minor Child, Plaintiffs,
v.
THE STATE OF OKLAHOMA ex rel. THE OKLAHOMA DEPARTMENT OF HUMAN SERVICES, et al. Defendants.

          ORDER

          JOE HEATON CHIEF U.S. DISTRICT JUDGE

         Plaintiffs Ken and Connie Hubbard, acting as administrators of Andrew DeWayne Prior's estate and as guardians of minor children C.E.H. and E.J.H., filed this case in state court. They asserted a § 1983 claim as well as state law claims for negligence and wrongful death. Defendants are the Oklahoma Department of Human Services (“DHS”), several DHS employees, Dayspring Community Services (“Dayspring”), and Dayspring employee Laura Fox. The defendants removed the case to this court and have now filed five separate motions to dismiss.[1] The motions are at issue and encompass all claims against all defendants.

         When considering whether claims should be dismissed under Fed.R.Civ.P. 12(b)(6), the court accepts all well-pleaded factual allegations of the complaint as true and views them in the light most favorable to the plaintiff, the nonmoving party. S.E.C. v. Shields, 744 F.3d 633, 640 (10th Cir. 2014). To survive the motion, the complaint must allege “enough facts to state a claim to relief that is plausible on its face” and “raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). In other words, the facts alleged in the complaint must allow the court to infer the defendant's liability. Shields, 744 F.3d at 640 (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). The Twombly/Iqbal pleading standard “is a middle ground between heightened fact pleading, which is expressly rejected, and allowing complaints that are no more than labels and conclusions or a formulaic recitation of the elements of a cause of action, which the Court stated will not do.” Id. at 640-41 (quoting Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012)).

         Background

         The complaint alleges that DHS removed siblings Andrew, C.E.H., and E.J.H. from their biological parents' home in February of 2013 due to allegations of neglect. After a failed trial reunification with the parents in May, DHS placed the children in a foster home-that of Mallory and Peter Krajian-on August 23, 2013. Over the next year, DHS received several referrals regarding problems in the home, but did not remove the children until after DHS was informed, on August 27, 2014, that Andrew had a bad bruise on his arm and was in the hospital with a head injury. Andrew died from the head injury on August 31, 2014. The complaint alleges Mrs. Krajian was charged with felony child abuse murder.

         Analysis

         I. Defendant DHS

         Plaintiffs assert a § 1983 claim against DHS based on a claimed violation of Fourteenth Amendment rights, as well as state law claims for negligence and wrongful death. DHS has moved to dismiss on the basis it is not a “person” for purposes of the § 1983 claim, and is therefore not subject to suit under that section. It also asserts it is immune from the state law claims because plaintiffs have not alleged compliance with the Oklahoma Governmental Tort Claims Act (“GTCA”) such as would effect a waiver of sovereign immunity. DHS also relies on certain exceptions in the GTCA.

         Plaintiffs' response concedes that DHS is not subject to suit under § 1983, so the Fourteenth Amendment claim will be dismissed.

         As to the state law claims, Oklahoma has adopted, through the GTCA, the doctrine of sovereign immunity. That doctrine prevents it from being sued without its consent. 51 Okla. Stat. §152.1(A). But the GTCA provides a limited waiver of that immunity for tort claims in certain circumstances. Id. § 152.1(B). This limited waiver applies only where a plaintiff has complied with certain procedural prerequisites, including presenting a notice of the claim to the state within one year of the date of loss and bringing any lawsuit within 180 days of the denial of the claim. Id. §§ 156(B), 157. Compliance with the GTCA is a “mandatory prerequisite” to filing tort claims against the State, and courts are without jurisdiction to hear such claims if the complaint fails to allege such compliance. Burghart v. Corr. Corp., 224 P.3d 1278, 1281-82 (Okla.Civ.App. 2009).

         Here, the complaint does not allege compliance with the GTCA's notice and claim requirements, and plaintiffs' response brief does not address the issue of compliance with this requirement. Having failed to allege compliance with the procedural prerequisites of the GTCA, [2] plaintiffs' state law claims against DHS will be dismissed.[3]

         II. Individual DHS employees.

         a. Fourteenth Amendment claims.

         Plaintiffs generally claim that defendants violated the children's Fourteenth Amendment rights by not protecting them from abuse. The complaint consists of factual allegations that attribute various actions to certain defendants, but the formal claims asserted purport to be against “the defendants” collectively. As to many of the 27 defendants, it is difficult to determine exactly what each particular defendant is alleged to have done or not done that constitutes a violation of plaintiffs' rights. In cases like this one, that is insufficient. Where a plaintiff seeks to impose personal liability on multiple government officials, “it is particularly important” that plaintiff make clear “exactly who is alleged to have done what to whom . . . as distinguished from collective allegations.” Kan. Penn Gaming, L.L.C. v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011) (emphasis in the original). ...


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