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Foutch v. Turn Key Health, LLC

United States District Court, N.D. Oklahoma

April 9, 2018

KELLY L. FOUTCH, administrator of the Estate of RUSSELL TED FOUTCH, deceased, Plaintiff,



         Before the court is the “Partial Motion to Dismiss” [Doc. No. 22] of defendant Creek County Public Facilities Authority (the Jail). Plaintiff Kelly L. Foutch, as administrator of the Estate of Russell Ted Foutch, deceased, brings three claims against the Jail: (1) a federal civil rights claim pursuant to 42 U.S.C. § 1983; (2) a pendent state claim for negligent conduct, training, hiring, and supervision; and (3) a claim for violations of Sections 7 and 9 of Article II of the Oklahoma Constitution. The Jail moves to dismiss the negligence and state constitutional claims for failure to state a claim upon which relief can be granted.

         I. The Allegations

         Russell Foutch died on September 30, 2016 while in the physical custody of the Jail. The Jail contracted with defendant Turn Key, LLC to provide medical staff and services at the Jail in order to provide healthcare to its inmate population. Four days before he died, Mr. Foutch struggled to breathe. Inmates reported that it sounded as if he had fluid in his lungs. As a group, they requested that Foutch receive a medical evaluation. Upon completion of the evaluation, Foutch was told he needed an antibiotic but would not receive one because a doctor could not be contacted. Three days before he died, Foutch lost consciousness on the floor of the jail's day room, but no one employed by the Jail or Turn Key came to assist. Foutch was observed coughing up blood, and appeared blue, with jaundiced eyes. Other inmates requested medical attention for Mr. Foutch but were ignored. Two days before he died, Foutch received one breathing treatment and was told Jail staff would come and get him for another, but that did not occur. The day before he died, Mr. Foutch's cellmate found him unconscious and purple in color on the floor of his cell. Three Jail guards came and had Foutch walk to the front of the jail while he complained of shortness of breath, difficulty breathing, and a headache. On the day of his death, Mr. Foutch again coughed up blood. After eating lunch, Foutch returned to his cell where he again lost consciousness and turned blue. Mr. Foutch was taken to a hospital, where emergency room doctors pronounced him dead within two minutes of his arrival.

         II. The Negligence Claim

         Plaintiff contends that Jail employees and agents negligently failed to provide ordinary and reasonable care for Mr. Foutch as his condition deteriorated, and that the Jail breached its duty of care to Mr. Foutch by failing to effectively train and supervise its jail and medical staff.

         The Jail argues it is immune from suit on the negligence claim because Oklahoma's Governmental Tort Claims Act (OGTCA) exempts it from liability. The OGTCA provides that a governmental entity shall not be liable if a claim results from “[p]rovision, equipping, operation or maintenance of any prison, jail or correctional facility . . . .” 51 O.S. § 155(25). The Oklahoma Supreme Court interprets this language broadly:

Reading [Section 155(25)] reveals an intent to withhold the waiver of sovereign immunity for any loss or injury, whether to an inmate or other person, resulting from the operational level acts required to furnish the services of a penal institution, including the . . . medical and health services or any other service provided for inmates or other persons . . . .

Medina v. State, 871 P.2d 1379, 1384 n.13 (Okla. 1993). Stated differently, the legislative intent of § 155(25) is “to protect the state from liability for loss resulting from any and all actions of officers and employees of a penal institution.” Gooding v. Ketcher, 838 F.Supp.2d 1231, 1243 (N.D. Okla. 2012) (quoting Redding v. State, 882 P.2d 61, 63 (Okla. 1994)). The negligence claim in this case falls squarely within this exception, and must be dismissed.

         III. The Bosh Claim

         Relying on Bosh v. Cherokee Bldg. Auth., 305 P.3d 994 (Okla. 2013), plaintiff contends the Oklahoma Constitution provides her a private right of action for violation of Mr. Foutch's rights under sections 7 (right of due process of law) and 9 (cruel or unusual punishments prohibited) of Article II.[1] In Bosh, the Oklahoma Supreme Court decided that article II, section 30 of the Oklahoma Constitution provides a private right of action for excessive force, notwithstanding provisions of the OGTCA immunizing the state from liability for such claims.

         See Id. at 1001. In reaching this result, the 7-2 majority stated that:

The OGTCA cannot be construed as immunizing the state completely from all liability for violations of the constitutional rights of its citizens. To do so would not only fail to conform to established precedent which refused to construe the OGTCA as providing blanket immunity, but would also render the Constitutional protections afforded the citizens of this State as ineffective, and a nullity. Therefore, we . . . hold that the Okla. Const. art. 2, § 30 provides a private cause of action for excessive force, notwithstanding the requirements and limitations of the OGTCA.

Id.[2] More recently, in Deal v. Brooks, 389 P.3d 375, 384 (Okla.Civ.App. 2016), the Oklahoma Court of Civil Appeals held that article II, section 7 of the Oklahoma Constitution provided a private cause of action for a child whose due process rights had been violated by reckless and deliberate acts of the ...

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