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Sanders v. Creek County Board of County Commissioners

United States District Court, N.D. Oklahoma

July 25, 2018

PHILIP SANDERS, an Individual and Husband and Next of Kin of BRENDA JEAN SANDERS, Deceased, Plaintiff,
v.
(1) CREEK COUNTY BOARD OF COUNTY COMMISSIONERS, (2) SHERIFF BRET BOWLING, in his official capacity as Creek County Sheriff, and (3) TURN KEY HEALTH CLINICS, a limited liability company, Defendants.

          OPINION AND ORDER

          JAMES H. PAYNE, UNITED STATES DISTRICT JUDGE

         Before the Court are (1) Defendants Creek County Board of County Commissioners and Sheriff Bowling's Motion to Dismiss Plaintiff's Second Amended Complaint (Dkt. 25) and (2) Defendant Turn Key Health Clinic, LLC's Motion to Dismiss (Dkt. 26). After consideration of the briefs, and for the reasons stated below, Defendants Creek County Board of County Commissioners and Sheriff Bowling's Motion to Dismiss is GRANTED and Defendant Turn Key Health Clinic, LLC's Motion to Dismiss is DENIED.

         BACKGROUND

         Plaintiff Philip Sanders (“Plaintiff”), as next of kin of Brenda Jean Sanders (“Sanders”), who is deceased, filed this action to recover against the defendants for alleged violations of the Eighth and/or Fourteenth Amendments to the United States Constitution. Plaintiff also brings state law tort claims for wrongful death, negligence, intentional infliction of emotional distress, and a claim for punitive damages against defendant Turn Key Health Clinics (“Turn Key”). The Second Amended Complaint names as defendants (1) the Creek County Board of County Commissioners (“Board”), (2) Creek County Sheriff Bret Bowling (“Sheriff Bowling”), in his official capacity, and (3) Turn Key. (Dkt. 23).

         According to the Second Amended Complaint, on October 17, 2016, Sanders was booked into the Creek County Justice Center and placed in the custody of Sheriff Bowling for outstanding warrants. (Dkt. 23, ¶ 19). Plaintiff alleges Sanders' health dangerously deteriorated while under the care of Sheriff Bowling, his jail staff, and Turn Key medical personnel. (Id. ¶ 20). Specifically, Plaintiff alleges Turn Key medical personnel and jail staff noted Sanders had been suffering from diarrhea and her mental state had been rapidly declining for at least two to three weeks. (Id.). As Sanders' health “obviously and swiftly deteriorated, ” jail staff and Turn Key medical personnel never provided her with medical care or obtained her medical history. (Id.). On or about November 20, 2016, Sanders was transported to Saint John Medical Center, “on the brink of death” and “fully incapacitated.” (Id. ¶¶ 21-22). Sanders was then diagnosed with “severe sepsis with shock, acute hypoxic respiratory failure, acute kidney injury, hepatopathy, coagulopathy, anemia, and thrombocytopenia.” (Id. ¶ 22). On November 21, 2016, Sanders died. (Id. ¶ 23). Plaintiff alleges the lack of medical care by Creek County Justice Center staff and medical personnel and their delay in transporting Sanders to a hospital caused and/or contributed to Sanders' death. (Id. ¶ 24).

         Plaintiff asserts four causes of action against the defendants: (1) relief under 42 U.S.C. § 1983 for deliberate indifference to Sanders' serious medical needs, in violation of Plaintiff's rights under the Eighth and/or Fourteenth Amendments to the United States Constitution; (2) wrongful death pursuant to 12 Okl. St. § 1053 for the defendants' negligent and reckless failure to provide Sanders with medical treatment, resulting in her death; (3) negligence in failing to provide medical care and treatment to Sanders until she was dying; and (4) intentional infliction of emotional distress by taking outrageous, intentional, unreasonable, and malicious actions/omissions in denying medical care to Sanders despite her unrelenting physical illnesses and ailments. (Id. ¶¶ 25-52). Plaintiff seeks damages for Sanders' injuries and her family's suffering, as well as punitive damages against Turn Key. (See id. ¶¶ 25-55, Prayer for Relief).

         The Board and Sheriff Bowling have now jointly filed a Motion to Dismiss Plaintiff's 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. 25). Plaintiff has filed a Response in opposition (Dkt. 29), and the Board and Sheriff Bowling have filed a Reply (Dkt. 30). Turn Key has also filed a Motion to Dismiss Plaintiff's claims against it pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. 26). Plaintiff has filed a Response in opposition (Dkt. 31), and Turn Key has filed a Reply (Dkt. 32). Both motions are fully briefed and ripe for review.

         DISCUSSION

         In 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).

[T]he Twombly/Iqbal standard is a middle ground between heightened fact pleading, which is expressly rejected, and allowing complaints that are no more than labels and conclusions or a formulaic recitation of the elements of a cause of action, which the Court stated will not do. In other words, Rule 8(a)(2) still lives. Under Rule 8, specific facts are not necessary; the statement need only give the defendant fair notice of what the claim is and the grounds upon which it rests.

Burnett v. Mortg. Elec. Registration Sys., Inc., 706 F.3d 1231, 1235-36 (10th Cir. 2013) (quoting Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012)).

         I. Motion of the Board and Sheriff Bowling

         A. 42 U.S.C. § 1983 Municipal Liability Claim

         First, the Board and Sheriff Bowling contend Plaintiff fails to plead sufficient facts to show they may be held liable under § 1983 on a “municipal liability” theory. In this regard, Plaintiff alleges the defendants were acting under color of law when they acted with deliberate indifference to Sanders' pain, dire physical condition, and need for immediate medical treatment. (Dkt. 23, ¶¶ 25-33). The Board and Sheriff Bowling argue these allegations fail with respect to municipal liability, because Plaintiff fails to establish that either (1) a policy or custom existed at the Creek County jail that caused the alleged constitutional violation or (2) Sheriff Bowling personally participated in the alleged denial of medical care to Sanders.

         Municipal liability may be established when the unconstitutional actions of a municipal employee were either (1) “representative of an official policy or custom of the municipal institution” or (2) “carried out by an official with final policy making authority with respect to the challenged action.” Seamons v. Snow, 206 F.3d 1021, 1029 (10th Cir. 2000) (citing Pembaur v. Cincinnati, 475 U.S. 469, 480-83 (1986); Murrell v. Sch. Dist. No. 1, 186 F.3d 1238, 1248-49 (10th Cir. 1999)). A municipality “cannot be held liable solely because it employs a tortfeasor-or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.” Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978); see Bd. of Cnty. Comm'rs of Bryan Cnty., Okla., v. Brown, 520 U.S. 397, 403 (1997).

         A plaintiff must show “that there is a direct causal link between the policy or custom and the injury alleged.” Bryson v. City of Okla. City, 627 F.3d 784, 788 (10th Cir. 2010) (quotation omitted). A policy must be a “policy statement, ordinance, regulation, or decision officially adopted and promulgated by a municipality's officers.” Lankford v. City of Hobart, 73 F.3d 283, 286 (10th Cir. 1996) (quoting Starrett v. Wadley, 876 F.2d 808, 818 (10th Cir.1989)) (quotation and alteration marks omitted). A custom must be a practice that is “‘persistent and widespread.'” Id. (quoting Starrett, 876 F.2d at 818). The plaintiff must demonstrate that the municipality was the “moving force” behind the alleged injury as a result of its deliberate conduct. Brown, 520 U.S. at 408. Accordingly, municipal liability under § 1983 requires Plaintiff to show the alleged violation of Sanders' constitutional rights was either caused by a policy, practice, or custom at the Creek County jail or that a final policymaker such as Sheriff Bowling carried out the alleged constitutional violation. See Jett v. Dallas Ind. Sch. Dist., 491 U.S. 701, 737 (1989).

         Here, the Board and Sheriff Bowling contend the Second Amended Complaint fails to allege either that Sheriff Bowling personally participated in the alleged denial of medical care to Sanders or that the alleged denial of medical care was caused by a policy, practice, or custom of the Creek County jail. The Court agrees. Plaintiff's allegations with respect to municipal liability are purely conclusory and fail to establish that Sheriff Bowling was personally involved in Plaintiff's medical care or that the Creek County Jail had a policy, practice, or custom of denying medical care to inmates. (See Dkt. 23, ¶¶ 27-33). As a result, Plaintiff has failed to state a § 1983 claim against the Board or Sheriff Bowling in his official capacity.

         In his Response, Plaintiff contends the § 1983 claim is established, because the Second Amended Complaint alleges the components necessary to plead deliberate indifference on the parts of Sheriff Bowling and the Board. Plaintiff further points to his allegation that all defendants were aware of the deterioration of Sanders' health and mental condition (Dkt. 23, ¶¶ 19-24). However, Plaintiff completely ignores the Board and Sheriff Bowling's arguments regarding municipal liability and fails to point to any allegation regarding a municipal policy or personal involvement by Sheriff Bowling in the denial of medical care, as required under the prevailing law. Accordingly, the Court concludes Plaintiff's § 1983 municipal liability claim against the Board and Sheriff Bowling is subject to dismissal.

         B. Negligence Claim Against the Board

         Next, the Board asserts it is immune from suit for Plaintiff's state law claim for negligence pursuant to the Oklahoma Governmental Tort Claims Act (“OGTCA”), 51 Okl. St. §§ 151 et seq. The OGTCA is the exclusive 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).

         As the Board correctly points out, the OGTCA did not waive immunity for political subdivisions for losses resulting from the “provision, 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 “withhold[s] 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, 871 P.2d at 1384 n.13 (discussing the scope of § 155(23), the predecessor statute to § 155(25)). See Redding v. State, 882 P.2d 61, 63 (Okla. 1994) (holding the “legislative intent of § 155(23) is to protect the state from liability for loss resulting from any and all actions of officers and employees of a penal institution.”).

         In this case, Plaintiff's negligence claim arises in the context of the alleged denial of medical care to Sanders while she was in the custody of the Creek County jail. (See Dkt. 23, ¶¶ 42-44). Therefore, § 155(25) clearly applies to this claim, and the Board is immune from suit with respect to Plaintiff's negligence claim. Moreover, as the Board points out, to the extent Plaintiff's state law tort claims against it are premised upon the alleged acts or omissions of Turn Key, the Board is immune from suit pursuant to 51 Okl. St. § 155(18), which provides complete tort immunity for losses resulting from “[a]n act or omission of an independent contractor or consultant or his or her employees, agents, subcontractors or suppliers or of a person other than an employee of the state or political subdivision at the time the act or omission occurred.” In his Response, Plaintiff contends the OGTCA does not provide blanket immunity to political subdivisions for the acts of its employees committed within the scope of employment, relying on Bosh v. Cherokee County Building Authority, 305 P.3d 994 (Okla. 2013). However, Plaintiff's citation to Bosh is inapt. Bosh did not hold that § 155(25) does not provide blanket immunity for state law torts. Rather, in Bosh the Oklahoma Supreme Court recognized a private right of action for excessive force against pre-trial detainees in violation of Article II ยง 30 of the Oklahoma Constitution, notwithstanding the tort immunity provided in the ...


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