United States District Court, E.D. Oklahoma
SAMANTHA SMITH, as Guardian and Next Friend of S.S., an Incapacitated Adult, Plaintiff,
(1) B.J. HEDGECOCK, Sheriff of Pushmataha County, Oklahoma, in his Official Capacity, (2) THE BOARD OF COUNTY COMMISSIONERS FOR THE COUNTY OF PUSHMATAHA, a political subdivision of the State of Oklahoma, and 3 TAMARA RASHAE NICHOLS, an individual, in her Individual Capacity, Defendants.
OPINION AND ORDER
H. Payne United States District Judge
the Court are (1) Defendants Hedgecock and Board of County
Commissioners' Partial Motion to Dismiss (Dkt. 7) and (2)
Defendant Tamara Nichols' Partial Motion to Dismiss (Dkt.
21). After consideration of the briefs, and for the reasons
stated below, both motions are GRANTED.
Samantha Smith (“Plaintiff”), as guardian and
next friend of S.S., who is an incapacitated adult, filed
this action to recover against the defendants for alleged
violations of the Fourth, Fifth, and Fourteenth Amendments to
the United States Constitution. Plaintiff also brings state
law tort claims for negligence, battery/issue preclusion, and
violations of Oklahoma Constitution. The Petition names as
defendants (1) B.J. Hedgecock, Sheriff of Pushmataha County,
Oklahoma, in his official capacity (“Sheriff
Hedgecock”), (2) the Board of County Commissioners for
the County of Pushmataha, a political subdivision of the
State of Oklahoma (“Board”), and (3) Tamara
Rashae Nichols, in her individual capacity
(“Nichols”). (Dkt. 2-2).
to the Petition, on or about February 17, 2016, a District
Court judge ordered S.S. remanded to the custody of the
Pushmataha County Sheriff, and S.S. was confined to the
Pushmataha County Jail. (Dkt. 2-2, ¶¶ 11-12).
Plaintiff alleges Nichols, a Jailer/Deputy at the Pushmataha
County Jail, repeatedly provided S.S. with illegal drugs in
exchange for sexual intercourse with S.S. (Id.
¶¶ 14, 20-22). S.S. allegedly reported the sexual
intercourse to the County Jail Administrator, who took no
action to protect S.S. (Id. ¶ 20). Sheriff
Hedgecock and other County employees were allegedly aware
that Nichols had a prior history of sexual relations with
County inmates. (Id. ¶¶ 16-17). Plaintiff
alleges the defendants knew or should have known that S.S.
was mentally ill and incapable of consent to sexual relations
with Nichols. (Id. ¶ 23). Nichols pleaded
guilty to her actions with S.S. on December 7, 2016.
(Id. ¶ 15).
asserts four causes of action against the defendants: (1)
negligence/respondeat superior against the Sheriff
and Board in failing to protect S.S. from the tortious
conduct of their employees; (2) battery/issue preclusion
against Nichols for raping S.S., to which Nichols pleaded
guilty in Pushmataha County case number CF-2016-53; (3)
relief under 42 U.S.C. § 1983 against all defendants for
violation of S.S.'s rights under the Fourth, Fifth and
Fourteenth Amendments to the United States Constitution; and
(4) relief against all defendants for violating S.S.'s
rights under Article II § 30 of the Oklahoma
Constitution to be free from unreasonable searches and
seizures, pursuant to Bosh v. Cherokee County
Governmental Building Authority, 305 P.3d 994 (Okla.
2013) (the “Bosh claim”). (Id.
Hedgecock and the Board (together, the “County
Defendants”) have now jointly filed a Partial Motion to
Dismiss, seeking dismissal of Plaintiff's state law
claims against them pursuant to Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim upon which
any relief can be granted as a matter of law. (Dkt. 7).
Plaintiff has filed a Response in opposition (Dkt. 13), and
Sheriff Hedgecock and the Board have filed a Reply (Dkt. 19).
Nichols has also filed a Partial Motion to Dismiss, seeking
dismissal of Plaintiff's Bosh claim against her
pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt.
21). Plaintiff has filed a Response in opposition (Dkt. 23),
and Nichols has filed a Reply (Dkt. 25). Both motions are
fully briefed and ripe for review.
considering a Rule 12(b)(6) motion, the court must accept all
well-pleaded allegations of the complaint as true, and must
construe them in the light most favorable to the plaintiff.
See Anderson v. Merrill Lynch Pierce Fenner & Smith,
Inc., 521 F.3d 1278, 1284 (10th Cir. 2008). To withstand
a motion to dismiss, a complaint must contain enough
allegations of fact “to state a claim to relief that is
plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). The Tenth Circuit has
stated that “plausibility” in this context refers
“to the scope of the allegations in the complaint: if
they 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.'” Robbins v. Oklahoma, 519 F.3d
1242, 1247 (10th Cir. 2008) (quoting Twombly, 550
U.S. at 569). The plaintiff bears the burden to frame
“a complaint with enough factual matter (taken as true)
to suggest” that he or she is entitled to relief.
Twombly, 550 U.S. at 556. “A pleading that
offers ‘labels and conclusions' or ‘a
formulaic recitation of the elements of a cause of action
will not do.' Nor does a complaint suffice if it tenders
‘naked assertion[s]' devoid of ‘further
factual enhancement.'” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S.
at 555, 557).
Motion of the County Defendants
Negligence Claim Against the Board
the County Defendants assert the Board is immune from suit
for Plaintiff's state law claim for
negligence/respondeat superior pursuant to the
Oklahoma Governmental Tort Claims Act (“OGTCA”),
51 Okl. St. §§ 151 et seq.The OGTCA is the
exclusive state-law remedy by which an injured plaintiff may
recover against an Oklahoma governmental entity for its own
torts and those of its employees. 51 Okl. St. § 153(B);
Fuller v. Odom, 741 P.2d 449, 451-53 (Okla. 1987).
The OGTCA generally immunizes “the state, its political
subdivisions, and all of their employees acting within the
scope of their employment” from liability for torts. 51
Okl. St. § 152.1(A). This immunity is subject to a
limited waiver for the state and its political subdivisions,
but “only to the extent and in the manner
provided” in the OGTCA. 51 Okl. St. § 152.1(B).
The Board is a political subdivision under the OGTCA. 51 Okl.
St. § 152(11)(c); 19 Okl. St. § 4. Therefore, the
Board may be subject to tort liability in situations where
private persons or entities would also be liable under state
law. Salazar v. City of Oklahoma City, 976 P.2d
1056, 1065-66 (Okla. 1999).
Board argues it is immune from liability for Plaintiff's
negligence claim based upon OGTCA exemptions-specifically,
exemptions found in §§ 155(4), 155(5), and 155(25).
The Board further argues it cannot be held liable for
Nichols' alleged actions in this case, because she was
acting outside the scope of her employment.
Immunity Under § 155(25)
Court first addresses the exemption in § 155(25), which
provides immunity for political subdivisions for losses
resulting from the “[p]rovision, equipping, operation
or maintenance of any prison, jail or correctional
facility.” 51 Okl. St. § 155(25). This exemption
provided in § 155(25) “is all inclusive for tort
claims.” Gibson v. Copeland, 13 P.3d 989, 992
(Okla. Ct. App. 2000) (citing Medina v. State, 871
P.2d 1379 (Okla. 1993)). In Medina, the Oklahoma
Supreme Court explained this exemption “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
“security of the facility; the employment of
personnel” and the “medical and health services
or any other service provided for inmates or other
persons.” Medina, 871 P.2d at 1384 n.13
(discussing the scope of § 155(23), the predecessor