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Autry v. Cleveland County Sheriff's Department

United States District Court, W.D. Oklahoma

February 5, 2018

ROBERT ALLEN AUTRY, an Incapacitated Person individually, ., Plaintiffs,



         Before 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).[1] The moving defendants are a private contractor and its employees who provided medical care to inmates at the Cleveland County Detention Center (“CCDC”).[2]

         The 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.

         Plaintiffs 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.

         Factual and Procedural Background

         Plaintiffs 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.

         Defendants 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].[3] 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.

         Plaintiffs' Allegations

         As 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. ¶ 24.

         On 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).

         On 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.

         Plaintiffs 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. ¶¶ 70-71.

         Plaintiffs 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.

         Defendants' Motions

         All movants first seek the dismissal of Count 3 as time barred by the statute of limitations applicable to a § 1983 claim.[4] 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.[5]Turn Key argues that the Second Amended Complaint contains insufficient factual allegations to support such liability.

         Regarding 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, §§ 151-72.[6]

         Finally, 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 improper.

         Standard of Decision

         “To 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.

         Determining 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 in Pahls).

         “‘[I]f 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) (unpublished).[7]


         A. Timeliness of § 1983 Action

         The 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).[8] 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”).

         Plaintiffs primarily argue that their § 1983 claims are timely based on an equitable tolling doctrine or a tolling statute, Okla. Stat. tit. 12, ...

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