United States District Court, W.D. Oklahoma
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,
THE STATE OF OKLAHOMA ex rel. THE OKLAHOMA DEPARTMENT OF HUMAN SERVICES, et al. Defendants.
HEATON CHIEF U.S. DISTRICT JUDGE
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. The motions are
at issue and encompass all claims against all defendants.
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)).
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.
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
response concedes that DHS is not subject to suit under
§ 1983, so the Fourteenth Amendment claim will be
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).
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,  plaintiffs'
state law claims against DHS will be dismissed.
Individual DHS employees.
Fourteenth Amendment claims.
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). ...