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Foutch v. Turn Key Health, LLC

United States District Court, N.D. Oklahoma

June 11, 2018

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

          OPINION AND ORDER

          GREGORY K. RIZZELL, CHIEF JUDGE

         Before the court is the Motion to Certify Question to the Oklahoma Supreme Court [Doc. No. 37] of plaintiff Kelly L. Foutch, administrator of the Estate of Russell Ted Foutch, deceased. For the reasons set forth below, plaintiff's motion is granted.

         I. Background

         On September 30, 2016, Russell Foutch died while in the physical custody of the Creek County Public Facilities Authority (the Jail) and under the medical supervision of Turn Key Health, LLC (Turn Key).[1] Plaintiff, the administrator of Mr. Foutch's estate, filed this case on July 20, 2017, alleging (I) a federal civil rights claim under 42 U.S.C. § 1983 against all defendants; (II) a negligence and wrongful death claim against Turn Key and Jane Doe Nurse I and Jane Doe Nurse II; (III) a negligent conduct, training, hiring, and supervision claim against the Jail; and (IV) a Bosh[2] claim for violations of Mr. Foutch's rights under Okla. Const. art. 2, §§ 7 and 9 against all defendants.

         The Jail and Turn Key subsequently moved to dismiss, inter alia, plaintiff's Bosh claim, arguing the Oklahoma Supreme Court has not extended Bosh to recognize a private cause of action under Okla. Const. art. 2, §§ 7 or 9 for denial of inmate medical care. See [Doc. Nos. 17; 22]. The court agreed, holding:

To permit plaintiff's state constitutional claim to proceed would require this court to extend Bosh and Deal beyond their holdings. Federal courts “are generally reticent to expand state law without clear guidance from its highest court.” Schrock v. Wyeth, Inc., 727 F.3d 1273, 1284 (10th Cir. 2013). That is especially true here, given that the requested expansions present questions of state constitutional law which would have significant consequences on state interests.[FN3] Without any clear guidance from the Oklahoma Supreme Court, the court declines to extend Bosh and Deal beyond their holdings to create a private cause of action under Article II, §§ 7 and 9 for alleged denial of inmate medical care.

[Doc. No. 32, pp. 4-5]. On April 30, 2018, plaintiff moved to reconsider and, in the alternative, for the court to certify questions to the Oklahoma Supreme Court. See [Doc. Nos. 37; 38]. The court denied plaintiff's motion to reconsider, stating:

It is one thing for a federal court to predict how a state's highest court would interpret an ambiguous state statute. It is quite another for a federal court to expand the scope of a state constitutional tort created by the state's Supreme Court. Expanding the scope of Bosh claims to encompass claims for the denial of inmate medical care would likely result in a flood of such claims, would have a significant impact on the state's finances, and would reduce the state's sovereign immunity. Comity and the principle of federalism inherent in the U.S. Constitution do not permit this court to arrogate unto itself the power to expand the scope of the state constitutional tort against the State of Oklahoma and its political subdivisions.

[Doc. No. 39]. The court now turns to plaintiff's motion for certification.

         II. Standard for Certifying a Question to the Oklahoma Supreme Court

         The standards governing certification stem from both state and federal law. Under Oklahoma law, the Oklahoma Supreme Court has the power to answer a question certified to it by a federal court “if the answer may be determinative of an issue in pending litigation in the certifying court and there is no controlling decision of the Supreme Court or Court of Criminal Appeals, constitutional provision, or statute of this state.” 20 O.S. § 1602. The test in federal court is whether the question (1) may be determinative of the case at hand, and (2) is sufficiently novel that the court feels uncomfortable attempting to decide it without further guidance. Pino v. United States, 507 F.3d 1233, 1236 (10th Cir. 2007) (citing Delaney v. Cade, 986 F.2d 387, 391 (10th Cir. 1993)). The court's analysis should “seek to give meaning and respect to the federal character of our judicial system, recognizing that the judicial policy of a state should be decided when possible by state, not federal courts.” Id. (citing Lehman Bros. v. Schein, 416 U.S. 386, 391, 94 (1974)).

         III. Analysis

         Plaintiff's request for certification meets these criteria. Plaintiff seeks certification of the following two questions:

1. Whether Okla. Const. art. 2, ยง 7 provides a private cause of action for denial of medical care to an inmate, notwithstanding the limitations of the Oklahoma Governmental ...

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