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Crocker v. Regalado

United States District Court, N.D. Oklahoma

March 30, 2018

(1) KENDRA CROCKER and (2) ALLEN MORA, as co-guardians of ERIC GRANT, Plaintiffs,
(1) VIC REGALADO, in his official capacity, (2) STANLEY GLANZ, in his personal capacity, (3) BOARD OF COUNTY COMMISSIONERS of Tulsa County, (4) ARMOR CORRECTIONAL HEALTH SERVICES, INC., (5) JANE DOE NO. 1; and (6) JANE DOE NO. 2, Defendants.


          TERENCE KERN, United States District Judge.

         Before the Court are Defendant Armor Correctional Health Services, Inc.'s Motion to Dismiss (Doc. 15); Motion to Dismiss of Defendants, Vic Regalado, in His Official Capacity, and Stanley Glanz, in His Personal Capacity (Doc. 21); and Defendant Board of County Commissioners' Motion to Dismiss (Doc. 20).

         I. Factual Allegations and Procedural Background

         On March 22, 2017, Plaintiffs Kendra Crocker and Allen Mora, as co-guardians of Eric Grant (“Plaintiffs”) filed a Complaint (Doc. 2) against (1) Vic Regalado, in his official capacity as Sheriff of Tulsa County; (2) Stanley Glanz (“Glanz”), who was Sheriff of Tulsa County and head administrator of Tulsa County Sheriff's Office (“TCSO”) and the David L. Moss Criminal Justice Center (“Jail”) at relevant times; (3) Board of County Commissioners of Tulsa County (“BOCC”); (4) Armor Correctional Health Services, Inc. (“Armor”), the Jail's health care service provider while Grant was in custody; (5) Jane Doe No. 1, a booking nurse in the TCSO's booking area; and (6) John Doe No. 2, a detention officer working in the TCSO's booking area.[1]

         The allegations relevant to Plaintiffs' claims are set forth in paragraphs 14-40 of the Complaint (Doc. 2.) On or about June 24, 2015, Tulsa County Sheriff Deputy Greg Brown arrested Eric Grant (“Grant”) on a non-violent misdemeanor charge of trespassing. When Grant was booked into the Tulsa County Jail, he was suffering from “obvious, known, and serious mental health disorders, including schizophrenia” (id. at ¶ 15); however, he received no mental health evaluation or referral. Grant was cleared by the booking staff of TCSO and Armor Correctional Health Services, Inc. (“Armor”) to be placed into the Jail.

         Grant was placed into a general population cell with a known registered sex offender, Anthony Eugene Williams (“Williams”). Williams “almost immediately” began to harass and threaten Grant. (Id. at ¶ 18.) Some of the threats were of a sexual nature. Grant informed the jail personnel about the threats, and for at least a week asked to be transferred to another cell. Grant's guardian, Allen Mora (“Mora”), called the jail and informed TCSO that Grant was in danger and needed to be moved to another cell. However, Jail personnel “failed to change his cell assignment or take any reasonable precautions to prevent the attack.” (Id. ¶ 19.) Meanwhile, Grant began showing “clear signs of mental health issues, ” including barking. (Id. ¶ 20.) However, medical staff at the Jail failed to ask him “any of the appropriate mental health questions” or to “attempt[] to get Grant the mental health care he required.” (Id.) Medical staff at the Jail also failed to give Grant medication that he needed. On or about July 7, 2015, Williams “pulled Grant from his bunk and began to brutally assault him.” (Id. ¶ 21.) During the assault, Grant “was knocked unconscious and brutally raped.” (Id.) After the assault and rape, Grant was transported to a hospital where a rape kit was administered.

         On March 22, 2017, Plaintiffs filed their Complaint asserting (1) 42 U.S.C. § 1983 (“§ 1983”) claims against Armor; Glanz, in his personal capacity; Regalado, in his official capacity; BOCC; and Jane Doe No. 1 and Jane Doe No. 2 (the “Doe Defendants”); (2) negligence, against Armor; and (3) violation of the Oklahoma Constitution's prohibition on cruel and unusual punishment under Article II § 9 (as applicable to pretrial detainees through the due process clause, Article II § 7).[2] Plaintiffs allege Grant should not have been placed in a general population cell, but once there, Jail and medical staff “should have been on high alert due to substantial risks to [Grant's] safety.” (Id. ¶ 23.) Armor filed a motion to dismiss (Doc. 15) pursuant to Federal Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”). Regalado and Glanz (the “TCSO Defendants”) filed a joint motion to dismiss (Doc. 21) pursuant to Rule 12(b)(6), seeking dismissal of the claims asserted against them and against the Doe Defendants. BOCC filed a separate motion to dismiss the claims asserted against it (Doc. 20), pursuant to Federal Rule of Civil Procedure 21 (“Rule 21”) and Rule 12(b)(6).

         II. Rule 12(b)(6) Standard

         In considering a motion to dismiss under Rule 12(b)(6), a court must determine whether a plaintiff has stated a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (internal quotation marks omitted). In order to survive a Rule 12(b)(6) motion to dismiss, a plaintiff must “‘nudge [ ] [his] claims across the line from conceivable to plausible.'” Schneider, 493 F.3d at 1177 (quoting Twombly, 127 S.Ct. at 1974). Thus, “the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” Id. (emphasis in original).

         The Tenth Circuit has interpreted “plausible, ” as used by the United States Supreme Court in Twombly, to “refer to the scope of the allegations in a complaint” rather than to mean “likely to be true.” Robbins v. Okla., ex rel. Dep't of Human Servs., 519 F.3d 1242, 1247 (10th Cir. 2008). Thus, “if [allegations] are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs have not nudged their claims across the line from conceivable to plausible.” Id. (internal quotations omitted). “The allegations must be enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for relief.” Id. “This requirement of plausibility serves not only to weed out claims that do not (in the absence of additional allegations) have a reasonable prospect of success, but also to inform the defendants of the actual grounds of the claim against them.” Id. at 1248. In addition, the Tenth Circuit has stated that “the degree of specificity necessary to establish plausibility and fair notice, and therefore the need to include sufficient factual allegations, depends on context.” Id.

         Because complaints in § 1983 cases typically include claims against multiple defendants, “[t]he Twombly standard may have greater bite in such contexts.” Id. at 1249.

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, as distinguished from collective allegations against the state.

Id. (emphasis in original); see also Gray v. Univ. of Colo. Hosp. Auth., 672 F.3d 909, 921 n.9 (10th Cir. 2012) (“To provide adequate notice as to the nature of multiple claims against multiple defendants, a complaint must isolate the allegedly unlawful acts of each defendant.”) (internal quotation marks omitted).

         III. Armor's Motion to Dismiss

         A. § 1983 Claim

         Armor contends the Complaint does not state a plausible § 1983 claim because Plaintiffs failed to allege facts sufficient to show that Grant suffered a constitutional deprivation. Armor further contends that Plaintiffs cannot sustain a constitutional claim against Armor on a municipal liability theory because (1) Plaintiffs have not identified a policy, procedure, or custom that caused Grant's injury, and (2) Armor is not a final policymaker for the Jail. Armor also seeks dismissal of any claim for punitive damages.[3]

         Section 1983 provides a cause of action against any person who, acting under color of state law, deprives another of his federal rights. Howards v. McLaughlin, 634 F.3d 1131, 1139 (10th Cir. 2011) (emphasis added). This claim has four elements: (1) a violation of rights protected by the U.S. Constitution or created by federal statute or regulation, (2) proximately caused (3) by the conduct of a person (4) who acted under color of law. Summum v. City of Ogden, 297 F.3d 995, 1000 (10th Cir. 2002).

         “A prison official's deliberate indifference to an inmate's serious medical needs is a violation of the Eighth Amendment's prohibition against cruel and unusual punishment.” Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The duty to provide medical care extends to inmates' psychiatric needs. See, e.g., Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996); Ramos v. Lamm, 639 F.2d 559, 574 (10th Cir. 1980). In addition, under the Eighth Amendment, prison officials are required to “provide humane conditions of confinement[] . . . and must ‘take reasonable measures to guarantee the safety of the inmates.'” Farmer v. Brennan, 511 U.S. 831, 832 (1994) (citing Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)). These rights extend to pretrial detainees under the Due Process Clause of the Fourteenth Amendment. See Bell v. Wolfish, 441 U.S. 520, 545 (1979) (“A fortiori, pretrial detainees, who have not been convicted of any crimes, retain at least those constitutional rights that we have held are enjoyed by convicted prisoners”).

         “Our cases recognize two types of conduct constituting deliberate indifference. First a medical professional may fail to treat a serious medical condition properly. . . . The second type of deliberate indifference occurs when prison officials prevent an inmate from receiving treatment or deny him access to medical personnel capable of evaluating the need for treatment.” In both cases, the test for deliberate indifference has an objective and subjective component. Id. The objective component concerns whether the alleged harm is sufficiently serious, while the subjective component requires inquiry into the state actor's culpability. Mata, 427 F.3d at 753. Armor does not argue that Grant's injury is not sufficiently serious, and the Court presumes this component is satisfied. See Poore v. Glanz, No. 11-CV-797-CVE-TLW, 2012 WL 1536933, at *3 (N.D. Okla. Apr. 30, 2012) (“Allegations of rape and sexual assault are sufficiently serious to satisfy the objective component of a deliberate indifference claim.”) (citing Tafoya v. Salazar, 516 F.3d 912, 916 (10th Cir. 2008)).

         Armor contends Plaintiffs' factual allegations establish, at the most, medical negligence by Armor, not deliberate indifference. “[A] prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists; and he must also draw the inference.” Farmer, 511 U.S. at 837. The subjective prong is satisfied if the official knows of and disregards an excessive risk to inmate health or safety. Maza, 427 F.3d at 752. “In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. It is only such indifference that can offend ‘evolving standards of decency' in violation of the Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97, 102 (1976). Intent can be demonstrated through circumstantial evidence, such as the fact that the risk is obvious. Maza, 427 F.3d at 752.

         Essentially, Plaintiffs allege Armor's booking staff failed to perform a gatekeeping role for other medical personnel capable of assessing and treating Grant's mental health condition. (See Pl.'s Resp., Doc. 28, at 8.)[4] The Complaint alleges Armor was responsible “for providing medical and mental services and medication to Mr. Grant while he was in the custody of TCSO[, ] . . . [and] for creating and implementing policies, practices, and protocols that govern the provision of medical and mental health care to inmates at the Tulsa County Jail, and for training and supervising its employees.” (Compl. ¶ 5.) Plaintiffs allege Grant had “serious and obvious mental health needs.” (Id. ¶ 16.) However, he “was cleared, by TCSO and Armor booking staff to enter the Jail, ” and “received no mental health evaluation or referral and was placed in general population.” (Id.)

         A prison medical professional, such as a booking nurse, who “knows that his role in a particular medical emergency is solely to serve as a gatekeeper for other medical personnel capable of treating the condition” may be held liable under the deliberate indifference standard if he or she “delays or refuses to fulfill that gatekeeper role.” Sealock v. Colorado, 218 F.3d 1205, 1211 (10th Cir. 2000). The Complaint alleges that when Grant was booked into the Jail, he was “suffering from obvious, known, and serious mental health disorders, including schizophrenia[]” and “was in an obviously vulnerable state.” (Compl., ¶ 15.) However, there are no facts alleged to suggest deliberate indifference on the part of Armor or its employees-for example, there is no allegation that staff were informed Grant was schizophrenic or needed medications. The Complaint does not allege how it was obvious that Grant was schizophrenic or vulnerable to sexual assault. These conclusory and general factual allegations are insufficient to support an inference of deliberate indifference by Armor.

         Sealock, which Plaintiffs cite, does not change this analysis. There, the Tenth Circuit reversed summary judgment, finding that a fact issue existed as to whether a physician's assistant (“PA”) was deliberately indifferent or merely negligent in failing to call an ambulance where a prisoner presented evidence that the PA knew he had unexplained chest pain. Here, there is no summary judgment record, only the allegations in the Complaint. The Complaint does not allege that any Armor employee knew facts supporting an inference of “a substantial risk of serious harm” or actually drew such an inference. Farmer, 511 U.S. at 837. Accordingly, the Court finds that with respect to Plaintiffs' deliberate indifference claim against Armor, the Complaint fails to “nudge [Plaintiffs'] claim[] across the line from conceivable to plausible.” Schneider, 493 F.3d at 1177 (quoting Twombly, 127 S.Ct. at 1974).[5] Because the Court finds Plaintiffs have not alleged a plausible Fourteenth Amendment violation against Armor, it need not proceed to Armor's remaining arguments respecting Plaintiffs' § 1983 claim.

         B. State Law Claims

         1. Statute of Limitations

         Armor contends Plaintiffs' claims of negligence and violation of the Oklahoma Constitution are barred under title 12, § 95(a)(11) of the Oklahoma Statutes, which sets a limit of one year from accrual of a cause of action on “[a]ll actions filed by an inmate or by a person based upon facts that occurred while the person was an inmate in the custody of” the state or one of its subdivisions. However, the Oklahoma Governmental Tort Claims Act (“OGTCA”) requires that a claim be “denied in whole or in part” before a plaintiff may initiate a lawsuit. Okla. Stat. tit. 51 § 157.[6]Therefore, a claim under the OGTCA does not accrue until the claim is denied or deemed denied by the state or relevant political subdivision. See Brown v. Creek Cty. ex rel. Creek Cty. Bd. of Cty. Comm'rs, 164 P.3d 1073, 1076 (Okla. 2007).

         Armor cites Fisher, where this Court held that § 95(A)(11) governed inmates' state constitutional claims, rather than the generally applicable two-year statute of limitations in § 95(A)(3). However, the only state law claim in Fisher arose under the Oklahoma Constitution, and accrued before the Oklahoma legislature amended OGTCA to include claims brought under the Oklahoma Constitution. Accordingly, OGTCA was not part of the Court's statute of limitations analysis there. Oklahoma courts have made clear that where there is an apparent conflict between the one-year limitation period under § 95(A)(11) and the notice/exhaustion provision of OGTCA, the latter controls. See Brown v. Creek Cty. ex rel. Creek Cty. Bd. of Cty. Comm'rs, ...

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