United States District Court, W.D. Oklahoma
ROBERT ALLEN AUTRY, an Incapacitated Person individually, et al., Plaintiffs,
CLEVELAND COUNTY SHERIFF'S DEPARTMENT, et al., Defendants.
TIMOTHY D. DEGIUSTI, UNITED STATES DISTRICT JUDGE
the Court are Defendant Norman Regional Hospital
Authority's Motion to Dismiss Second Amended Complaint
[Doc. No. 69] and Defendant Marshall L. Rea, D.O.'s
Motion to Dismiss [Doc. No. 79], both filed pursuant
Fed.R.Civ.P. 12(b)(6). Plaintiffs assert claims against these
defendants under 42 U.S.C. § 1983 and the Emergency
Medical Treatment and Active Labor Act
(“EMTALA”), 42 U.S.C. § 1395dd, and state
law. Plaintiffs Robert Allen Autry (alleged to be an
incapacitated person) and Sandra Valentine (his mother and
guardian) have filed responses [Doc. Nos. 94 & 95], and
the movants have replied [Doc. Nos. 97 & 100]. The
Motions are fully briefed and ripe for decision.
Norman Regional Health Authority d/b/a Norman Regional
Hospital (“NRH”) seeks a dismissal of all claims
against it in the Second Amended Complaint. As to the federal
claims, NRH asserts that Plaintiffs' claims are time
barred and their pleading otherwise fails to state a claim
for relief. NRH contends any state law tort claim is governed
by Oklahoma's Governmental Tort Claims Act
(“GTCA”), Okla. Stat. tit. 51, §§
151-72, and is barred by Plaintiffs' failure to satisfy
statutory preconditions to suit. Alternatively, if
Plaintiffs' federal claims are dismissed, NRH urges the
Court to decline supplemental jurisdiction of any state law
Marshall L. Rea, D.O. (“Dr. Rea”) also seeks the
dismissal of all claims. He denies being a proper defendant
under either federal statute because, as to § 1983,
Plaintiffs allege no facts to show he was acting under color
of state law or acted unconstitutionally while practicing
emergency medicine at NRH, and, as to EMTALA, only hospitals
can be sued. See 42 U.S.C. § 1395dd(d)(2)(A).
Absent any federal claim against him, Dr. Rea asks the Court
to decline supplemental jurisdiction of Plaintiffs'
and Procedural Background
bring claims against NRH and Dr. Rea under federal and state
laws to recover damages allegedly caused by inadequate
emergency medical care provided to Mr. Autry on November 29,
2014. At the time, Mr. Autry was a pretrial detainee at the
Cleveland County Detention Center (“CCDC”). This
case was filed in October 2015, but NRH and Dr. Rea were
first added as defendants by the Second Amended Complaint
[Doc. No. 49] filed January 4, 2017. The Court authorized
Plaintiffs to exceed the 90-day time limit for service of
process, and Plaintiffs timely served NRH and Dr. Rea on
April 11, 2017, and May 10, 2017, respectively. See
4/27/17 Order [Doc. No. 65].
assert claims against other defendants in the Second Amended
Complaint related to Mr. Autry's detention at CCDC and
the medical care he received there. Some of these defendants
- Cleveland County Sheriff's Department, the Oklahoma
Indigent Defense System, EMSA, Cleveland County, Joseph K.
Lester in his official capacity as Sheriff of Cleveland
County, the Board of County Commissioners of Cleveland
County, and multiple “John Doe” defendants - have
previously been dismissed, by either Plaintiffs [Doc. Nos.
24-26, 28, 31 & 54] or the Court [Doc. Nos. 33, 65, 82
& 105]. Some claims against other defendants remain
pending. See 2/5/18 Order [Doc. No. 106]. Only the
facts relevant to Plaintiffs' claims against NRH and Dr.
Rea are stated in this Order.
“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.
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
Fed.Appx. 703, 707 (10th Cir. 2008)
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, and made requests for treatment
to CCDC's employees and nurses employed by CCDC's
contract medical care provider. In making these requests,
both Mr. Autry and Ms. Valentine communicated information
regarding his prior injury and the risk of harm from an
untreated sinus infection, and Ms. Valentine offered to
provide medical records. Mr. Autry received treatment of his
symptoms with nonprescription medications to relieve pain and
to reduce fever and inflammation (ibuprofen and naproxen),
but the sinus infection went undiagnosed and untreated by
November 29, 2014, Mr. Autry was transported to the emergency
room of NRH for evaluation and treatment. He was examined by
Dr. Rea, but “despite signs of infection, notice of his
prior TBI [traumatic brain injury], and headache, Autry was
discharged from the hospital with no further recommendation
regarding the infection.” Id. ¶ 68. Mr.
Autry was “released, not to another medical facility,
but back to the care and custody of the Jail without
receiving any antibiotics or receiving any other stabilizing
care.” Id. ¶ 29. Plaintiffs allege as
follows concerning Dr. Rea's treatment of Mr. Autry:
Rea failed to obtain a thorough medical and surgical history
of Autry, failed to perform a proper physical examination,
failed to order appropriate laboratory tests, failed to order
x-rays of sinuses, failed to assess Autry's condition in
light of the signs and symptoms and history of TBI, and had
no plan of action for Autry. Rea failed to prescribe
appropriate medication and/or admit Autry in the hospital for
further diagnostic procedures and treatment. Further, Rea
failed to stabilize Autry and failed to refer him to another
medical facility, [and] instead discharged Autry back to the
Id. ¶ 76. Plaintiffs allege that because Mr.
Autry was a pretrial detainee at the time of his examination,
he “had the Constitutional right to adequate medical
care and NRH and Rea had the duty to provide adequate medical
care.” Id. ¶ 77. Plaintiffs also allege
that NRH, “a Public Trust, ” and Dr. Rea,
“the physician who treated Autry at NRH” were
both “acting under color of state law.”
Id. ¶ 75.
December 1, 2014, Mr. Autry was transported back to NRH and,
later the same day, underwent emergency brain surgery.
Id. ¶¶ 30-31, 69. He was diagnosed with
“a serious bacterial infection in his brain as a result
of an untreated sinus infection.” Id. ¶
33. After additional surgeries and procedures during December
2014, which included placements of a feeding tube, a tracheal
tube, and a cranial monitoring probe, the treating physician
determined on January 14, 2015, that 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 4 of the Second Amended Complaint that NRH
and Dr. Rea provided constitutionally inadequate medical care
to Mr. Autry because “the failure and delay of
appropriate care . . . is a result of deliberate indifference
to his health and well-being because of his
incarceration.” See id. ¶ 85. Deliberate
indifference is allegedly shown by a lack of proper
treatment, “combined with the knowledge that the doctor
had all of the information at his disposal when Autry first
presented himself to the hospital.” Id.
Plaintiffs allege that “[t]he end result of the
deliberate indifference was an unnecessary . . .
life-changing injury that resulted in permanent harm to
Autry.” Id. According to Plaintiffs:
“While Autry received care at NRH, his care departed
from the ordinary standard of care, and his diagnosis
presents the appearance of deliberate indifference where the
doctor had access to his history, ignored or neglected his
symptoms, and failed to properly treat Autry with
catastrophic effect.” Id. ¶ 83.
also assert in Count 4 that NRH and Dr. Rea violated EMTALA.
Plaintiffs allege Mr. Aurty was entitled under EMTALA to
receive “an appropriate medical screening examination
to determine whether he was suffering from an emergency
medical condition” and, if so, to be “stabilized
[and] transferred to another medical facility” rather
than released. Id. ¶¶ 79, 81. Plaintiffs
claim Mr. Autry “was inappropriately screened by the
emergency medical department of NRH . . . [and]
inappropriately treated while at NRH” in that he
“was given a substandard care that departed from what a
‘normal [and] non-detained' paying patient would
have received which caused catastrophic effects.”
Id. ¶ 83. Plaintiffs state an EMTALA violation
can be inferred from the fact that “Autry was returned
to the hospital in a coma . . . less than two days after his
discharge.” Id. ¶ 82.
assert in Count 5 that Dr. Rea's conduct constituted
medical negligence and they seek damages from “the
defendants” collectively for past and future medical
expenses and, apparently, for injuries and losses stated in a