United States District Court, N.D. Oklahoma
KELLY L. FOUTCH, administrator of the Estate of RUSSELL TED FOUTCH, deceased, Plaintiff,
TURN KEY HEALTH, LLC, d/b/a TURN KEY MEDICAL, and TURN KEY; CREEK COUNTY PUBLIC FACILITIES AUTHORITY; JANE DOE NURSE I; JANE DOE NURSE II; and JOHN/JANE DOES III-X,
OPINION AND ORDER
GREGORY K. FRIZZELL, CHIEF JUDGE.
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.
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.
The Negligence Claim
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.
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.
The Bosh Claim
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. 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.
Id. at 1001. In reaching this result, the 7-2 majority
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
Id. 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 ...