United States District Court, N.D. Oklahoma
PHILIP SANDERS, an Individual and Husband and Next of Kin of BRENDA JEAN SANDERS, Deceased, Plaintiff,
(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
H. PAYNE, UNITED STATES DISTRICT JUDGE
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
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).
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).
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).
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
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)).
Motion of the Board and Sheriff Bowling
42 U.S.C. § 1983 Municipal Liability Claim
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
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).
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).
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
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
Negligence Claim Against the Board
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).
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.”).
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 § 30 of the
Oklahoma Constitution, notwithstanding the tort immunity
provided in the ...