United States District Court, W.D. Oklahoma
ROBERT ALLEN AUTRY, an Incapacitated Person individually, ., Plaintiffs,
CLEVELAND COUNTY SHERIFF'S DEPARTMENT, et al., Defendants.
TIMOTHY D. DEGIUSTI UNITED STATES DISTRICT JUDGE
the Court are the Motions to Dismiss of Defendants Turn Key
Health Clinics, ESW Correctional Healthcare, LLC, Cindy
Bilyeu, Raven Funez, and Deloris Brown [Doc. No. 67] and of
Defendant Deanna Wheeler [Doc. No. 83], filed pursuant
Fed.R.Civ.P. 12(b)(6). The moving defendants are a private
contractor and its employees who provided medical care to
inmates at the Cleveland County Detention Center
Second Amended Complaint groups these defendants together -
referring to them collectively as “contract medical
providers” - and asserts identical claims against them.
Because their Motions assert common grounds for dismissal,
they are taken up together.
Robert Allen Autry (alleged to be an incapacitated person)
and Sandra Valentine (his mother and guardian) have filed
responses [Doc. Nos. 93 & 96] in opposition to the
Motions, and the movants have replied [Doc. Nos. 99 &
102]. The Motions are fully briefed and ripe for decision.
and Procedural Background
bring claims under 42 U.S.C. § 1983 and state law for
damages allegedly caused by a failure to provide medical care
to Mr. Autry while he was a pretrial detainee at CCDC. The
case was filed in October 2015, but the movants were first
added as defendants by the Second Amended Complaint filed
January 4, 2017. The first movants were served in April 2017
and filed their motion on May 2, 2017; they refer to
themselves collectively as the “Turn Key
Defendants.” Defendant Wheeler was served later,
appears through separate counsel, and filed her motion on
June 1, 2017. Each of the individual movants is alleged to be
“a nurse employee who provided healthcare to detainees
at the CCDC.” See Second. Am. Compl. [Doc. No.
49], ¶¶ 14-17.
Cleveland County Sheriff's Department, Joseph K. Lester
in his official capacity as Sheriff of Cleveland County, the
Board of County Commissioners of Cleveland County, and other
“John Doe” defendants have previously been
dismissed, by either Plaintiffs [Doc. Nos. 31 & 54] or
the Court [Doc. Nos. 33, 65, 82 & 105]. Plaintiffs have
also sued Norman Regional Health Authority and Marshall L.
Rea, D.O. based on the emergency medical treatment provided
to Mr. Autry at Norman Regional Hospital (“NRH”);
these defendants have also filed motions to dismiss, which
are addressed by a separate order.
pertinent to the Motions, Plaintiffs allege that Mr. Autry
suffered accidental head trauma as a teenager that
“left him with injuries to his skull which made sinus
infections especially dangerous” because “his
injuries allowed for an untreated sinus infection to cause
brain infection.” See Second Am. Compl. ¶
21. While detained at CCDC in November 2014, Mr. Autry
developed a sinus infection. He first told his mother, Sandra
Valentine, about it on November 13, 2014. The next day, Ms.
Valentine informed a receptionist at CCDC that Mr. Autry had
symptoms of a sinus infection and that “he needed
immediate medical attention due to his traumatic brain injury
(‘TBI').” Id. ¶ 23. Ms.
Valentine was given a telephone number to contact CCDC's
medical staff, and she “called the number repeatedly
and left multiple messages for the Jail's medical staff
regarding Autry's TBI history, her concerns about his
untreated sinus infection, and the dangers of an untreated
sinus infection in his situation.” Id. ¶
November 20, 2014, Mr. Autry told his mother that CCDC's
medical staff had given him only nonprescription medications
to relieve pain and to reduce fever and inflammation
(ibuprofen and naproxen). Ms. Valentine told the medical
staff the same day that Mr. Autry needed additional medical
care and medication. On November 21, 2014, Mr. Autry spoke to
“Jail staff” about his condition and
“requested medical attention and antibiotics” but
received none. Id. ¶ 27. On November 25, 2014,
Mr. Autry was seen by CCDC's medical staff and personally
“informed them of his condition and his previous TBI,
” but he received no additional treatment and was
returned to his cell. Id. ¶ 28. On November 26
or November 29, 2014 (id. ¶¶ 29, 68, 75),
Mr. Autry was transported to the emergency room of NRH for
evaluation and was examined by Dr. Rea. However, Mr. Autry
was returned to the jail “without receiving any
antibiotics” (¶ 29) and without instructions for
treatment of the infection (¶ 68).
December 1, 2014, Ms. Valentine received a call asking her to
provide written consent for Mr. Autry to receive emergency
surgery; he “had been found unconscious in his cell and
had been transported back to NRH.” Id.
¶¶ 30-31, 69. Later the same day, Mr. Autry
underwent emergency brain surgery at NRH; he was diagnosed
with “a serious bacterial infection in his brain as a
result of an untreated sinus infection.” Id.
¶ 33. The surgery involved a craniectomy to open his
skull and allow drainage, and the placement of a shunt to
reduce intracranial pressure. A second emergency surgery was
performed at NRH on December 5, 2014, to enlarge the skull
opening and permit surgical drainage. Then beginning December
12, 2014, Mr. Autry underwent a series of operations and
procedures to place a feeding tube, insert a tracheal tube,
and replace a cranial monitoring probe. On January 14, 2015,
the treating physician determined Mr. Autry “was
totally incapacitated from a brain injury resulting from a
brain abscess and subdural empyema” and “would
likely never return to an independent state.”
Id. ¶ 40.
assert in Count 3 of the Second Amended Complaint that Turn
Key and Defendants Bilyeu, Funez, Brown, and Wheeler were
“contract medical providers to Autry while he was in
the care and custody of the Sheriff of Cleveland
County” and were acting under color of state law with a
constitutional duty to provide adequate medical treatment.
Id. ¶¶ 59, 61. Plaintiffs state that Turn
Key and, upon information and belief, all of the nurses
employed by Turn Key (Bilyeu, Funez, Brown, and Wheeler)
delivered medical care to Mr. Autry at CCDC, and that these
“contract medical providers, despite being on notice of
Autry's potentially life-threatening condition, ignored
the risks by ignoring his requests for additional medical
treatment.” Id. ¶¶ 61, 70.
Plaintiffs allege that “[t]he contract medical
providers delayed the initiation of proper care” and
“delayed in approving a transfer to the NRH emergency
room or any other hospital.” Id. ¶¶
claim the contract medical providers' failure to provide
care “constituted deliberate indifference to the health
and well-being of Autry.” See id. ¶¶
72, 73. Plaintiffs allege “[t]he end result of the
deliberate indifference was an unnecessary, unreasonable . .
. life-changing injury that resulted in permanent harm to
Autry.” Id. ¶ 73. Further, Plaintiffs
claim that the delay and denial of adequate medical care to
Mr. Autry was the result of “[a] lack of proper
training, a lack of proper supervision by Dr. John Doe [Turn
Key's doctor], [and] a failure to propagate proper
policies and procedures, which includes the failure to
properly communicate the serious risk faced by Autry with
improper treatment.” Id. For relief,
Plaintiffs seek to recover “actual damages allowed by
law, ” punitive damages, and attorney fees.
Id. ¶¶ 73, 99.
movants first seek the dismissal of Count 3 as time barred by
the statute of limitations applicable to a § 1983
claim. Second, the movants challenge the
sufficiency of Plaintiffs' factual allegations to state a
§ 1983 claim against any particular defendant. They
argue that the Second Amended Complaint fails to show any one
of them acted with deliberate indifference to a serious
medical need of Mr. Autry while he was confined at CCDC.
Finally, Turn Key asserts that it cannot be held liable under
§ 1983 based on a respondeat superior theory of
vicarious liability for its employees' acts but, instead,
Plaintiffs' § 1983 claim against Turn Key must be
based on a municipal liability theory, which requires the
existence of an official policy or custom that caused the
alleged injury.Turn Key argues that the Second Amended
Complaint contains insufficient factual allegations to
support such liability.
any state law tort claim, Turn Key and its co-movants assert
a time-bar defense based on Okla. Stat. tit. 12, §
95(A)(1), which provides a one-year limitation period for a
claim based on conduct arising out of an inmate's
detention. Alternatively, these defendants contend the Second
Amended Complaint fails to state a common law tort claim
against them. They also assert sovereign immunity from suit
under the provisions of Oklahoma's Governmental Tort
Claims Act (“GTCA”), Okla. Stat. tit. 51,
Defendant Wheeler asserts that a negligence claim against a
licensed medical professional, including a nurse, requires
the affidavit of a qualified expert. See Okla. Stat.
tit. 12, § 19.1. She contends the expert report provided
by Plaintiffs as an attachment to the Second Amended
Complaint is insufficient to satisfy this requirement. This
contention has been overcome by subsequent legal
developments. On October 24, 2017, the Oklahoma Supreme Court
determined that “[S]ection 19.1 is an impermissible
barrier to court access and an unconstitutional special
law.” John v. St. Francis Hosp., Inc., 405
P.3d 681, 683 (Okla. 2017). The supreme court announced:
“Section 19.1 is stricken” from Title 12 of the
Oklahoma Statutes. Id. Thus, the affidavit
requirement is no longer enforceable, and the dismissal
requested by Defendant Wheeler on this basis would be
survive a motion to dismiss [under Rule 12(b)(6)], a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)); see Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008). “A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678.
“[W]here the well-pleaded facts do not permit the court
to infer more than the possibility of misconduct, the
complaint has alleged - but it has not ‘show[n]' -
‘that the pleader is entitled to relief.'”
Id. at 679 (quoting Fed.R.Civ.P. 8(a)(2)). Thus, in
assessing plausibility, a court should first disregard
conclusory allegations and “next consider the factual
allegations in [the] complaint to determine if they plausibly
suggest an entitlement to relief.” Id. at 681.
whether a complaint states a plausible claim is a
“context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense.” See id. at 679; see also
Robbins, 519 F.3d at 1248. “In § 1983 cases,
defendants often include the government agency and a number
of government actors sued in their individual capacities.
Therefore it is particularly important in such circumstances
that the complaint make clear exactly who is alleged
to have done what to whom, to provide each
individual with fair notice as to the basis of the claims
against him or her . . . .” See Robbins, 519
F.3d at 1249-50 (emphasis in original); see also Smith v.
United States, 561 F.3d 1090, 1104 (10th Cir. 2009).
“[I]t is incumbent upon a plaintiff to ‘identify
specific actions taken by particular defendants'
in order to make out a viable § 1983 . . . claim.”
Pahls v. Thomas, 718 F.3d 1210, 1226 (10th Cir.
2013) (quoting Tonkovich v. Kan. Bd. of Regents, 159
F.3d 504, 532 (10th Cir. 1998)) (emphasis added by the court
the allegations [of a complaint] show that relief is barred
by the applicable statutes of limitations, the complaint is
subject to dismissal for failure to state a
claim.'” Vasquez Arroyo v. Starks, 589
F.3d 1091, 1096-97 (10th Cir. 2009) (quoting Jones v.
Bock, 549 U.S. 199, 215 (2007)). A party seeking to toll
a limitations period bears “the burden of [pleading
and] proving justifiable circumstances.” Olson v.
Fed. Mine Safety & Health Review Comm'n, 381
F.3d 1007, 1014 (10th Cir. 2004) (citing Aldrich v.
McCulloch Prop., Inc., 627 F.2d 1036, 1044 n.4 (10th
Cir. 1980)); see Heil v. Wells Fargo Bank, 298 F.
App'x 703, 707 (10th Cir. 2008)
Timeliness of § 1983 Action
movants assert that Plaintiffs' § 1983 claims
against them became time barred on December 1, 2016, before
the Second Amended Complaint was filed. The statute of
limitations for Plaintiffs' § 1983 action is
borrowed from state law, and is the two-year period of Okla.
Stat. tit. 12, § 95(A)(3). See Wilson v.
Garcia, 471 U.S. 261, 280 (1985); Meade v.
Grubbs, 841 F.2d 1512, 1523-24 (10th Cir. 1988). Federal
law governs the accrual of a § 1983 claim. See
Wallace v. Kato, 549 U.S. 384, 388 (2007); Alexander
v. Oklahoma, 382 F.3d 1206, 1215 (10th Cir.
2004). But “state law governs the
application of tolling in a [§ 1983] action.”
Alexander, 382 F.3d at 1217 (footnote omitted);
Fratus v. Deland, 49 F.3d 673, 675 (10th
Cir. 1995) (“For section 1983 actions, state law
determines the appropriate statute of limitations and
accompanying tolling provisions.”); see also Hardin
v. Straub, 490 U.S. 536, 539, 544 (1989) (federal courts
apply state tolling rules in § 1983 cases unless doing
so would defeat federal policy goals; a Michigan tolling
statute for inmates' lawsuits was “consistent with
§ 1983's remedial purpose”).
primarily argue that their § 1983 claims are timely
based on an equitable tolling doctrine or a tolling statute,
Okla. Stat. tit. 12, ...