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Turner v. Board of County Commissioners of County Oklahoma

United States District Court, W.D. Oklahoma

May 6, 2019

RAUSHI TEAREZ TURNER, Plaintiff,
v.
BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF OKLAHOMA, et al., Defendants.

          ORDER

          SCOTT L. PALK UNITED STATES DISTRICT JUDGE

         Before the Court is the Report and Recommendation [Doc. No. 52] of United States Magistrate Judge Shon T. Erwin recommending that the Motion to Dismiss of Defendant John Whetsel [Doc. No. 35] be granted in part and denied in part. Both Defendant Whetsel and Plaintiff have filed timely objections to the Report and Recommendation. See Def. Whetsel's Obj. [Doc. No. 56] and Pl.'s Obj. [Doc. No. 57].

         I. Introduction

         At all times relevant to the claims alleged, Plaintiff was a pretrial detainee housed at the Oklahoma County Detention Center (OCDC). On October 28, 2015 another inmate, Demetrius Stamps (Stamps), stabbed Plaintiff in the lower right back and the lower right leg. Plaintiff required medical treatment as a result.

         At the time of the incident, Defendant Whetsel served as the Sheriff of Oklahoma County. Plaintiff brings a claim against Defendant Whetsel in his individual capacity pursuant to 42 U.S.C. § 1983.[1] Plaintiff alleges Defendant Whetsel failed to protect him from being attacked and stabbed by Stamps. Plaintiff further alleges Defendant Whetsel failed to correct deficiencies at the OCDC that were well-known to him prior to the attack, including a failure to properly train Defendant Scott, the officer who witnessed the attack. And Plaintiff brings a claim under Oklahoma state law against Defendant Whetsel alleging intentional infliction of emotional distress.

         Magistrate Judge Erwin recommended that Defendant Whetsel's Motion to Dismiss be denied as to Plaintiff's § 1983 claim and further recommended that Defendant Whetsel's Motion to Dismiss be granted as to Plaintiff's state law claim for intentional infliction of emotional distress.

         II. Objections Raised by the Parties

         In his objection, Defendant Whetsel contends that Plaintiff's individual capacity claim is “predicated on a supervisory liability theory” and that Plaintiff “does not challenge a specific policy promulgated, implemented, [or] created by Defendant Whetsel that caused a constitutional harm.” Def.'s Obj. at 1. Instead, Defendant argues that Plaintiff impermissibly relies solely upon a “stale” report of the Department of Justice (DOJ) issued in 2008 and a subsequent Memorandum of Understanding (MOU) entered in 2009 to establish the alleged unconstitutional conditions referenced in the report continued to exist at the OCDC in 2015 when the conduct giving rise to Plaintiff's § 1983 claim is alleged to have occurred. Id. at 1-2. Defendant argues Plaintiff's references to the DOJ report and MOU in the Third Amended Complaint [Doc. No. 30] are too vague and conclusory to state a plausible claim for relief against Defendant Whetsel.[2]

         Plaintiff objects to Magistrate Judge Erwin's finding that his state law claim against Defendant Whetsel for intentional infliction of emotional distress is untimely. Although Plaintiff concedes he did not timely file his claim within the applicable one-year limitations period, he urges the Court to find equitable tolling of the limitations period is proper.[3]

         III. Governing Standards

         The parties' objections to the Report and Recommendation trigger de novo review by this Court of the proposed findings or recommendations to which an objection has been made. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(2).

         A pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Dismissal of the complaint is proper if the plaintiff fails to plead allegations sufficient “to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); Fed.R.Civ.P. 12(b)(6).

         In reviewing the sufficiency of the allegations, the Court “accept[s] as true all well-pleaded factual allegations in the complaint and view[s] them in the light most favorable to the plaintiff.” SEC v. Shields, 744 F.3d 633, 640 (10th Cir. 2014) (quotations and citation omitted). A plaintiff must set forth specific factual allegations to support each claim, i.e., “mere labels and conclusions and a formulaic recitation of the elements of a cause of action will not suffice.” Safe Streets All. v. Hickenlooper, 859 F.3d 865, 878 (10th Cir. 2017) (quotations and citation omitted). A claim has facial plausibility when the plaintiff had “pled factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quotations and citations omitted).

         The Court liberally construes the allegations of a pro se litigant. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). But “this rule of liberal construction stops . . . at the point at which [the court] begin[s] to serve as his advocate.” United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009).

         IV. Analysis

         A. Plausibility of Plaintiff's § 1983 Claim Against Defendant Whetsel in his Individual Capacity

         Plaintiff's Third Amended Complaint makes several references to “Defendants, ” collectively, but only specifically references Defendant Whetsel only three times. First, ...


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