United States District Court, N.D. Oklahoma
OPINION AND ORDER
TERENCE C. KERN UNITED STATES DISTRICT JUDGE
the Court are the Motion to Dismiss filed by Defendants Mayes
County Sheriff Mike Reed, Mayes County Under Sheriff Gary
Shrum, Mayes County Jail Administrator Kyle Murry, and
Sheriff's Deputy Jennifer Eastwood (Doc. 15); and the
Motion to Dismiss filed by the County Commissioners of Mayes
County (Doc. 16). Plaintiff opposes both motions. (Docs. 22,
lawsuit arises from a February 26, 2014 incident at the Mayes
County, Oklahoma Sheriff Department, during which, a Mayes
County Deputy shot Plaintiff in the eye with a pepper ball
and strip-searched her. Pursuant to 42 U.S.C. § 1983 and
the Fourth and Fourteenth Amendments, Plaintiff asserts
federal claims of unconstitutional use of excessive force
against Sheriff Reed, Under Sheriff Gary Shrum, and Jail
Administrator Kyle Murray, and Deputies Jennifer Eastwood,
Derek Davis and John Does nos. 1-8; and respondeat
superior liability against Reed, Shrum, Murry and John
Does Nos. 1-8. She asserts claims for respondeat
superior liability against the County Commissioners.
Reed, officially and individually, Under Sheriff Shrum,
officially and individually, Jail Administrator Murry,
officially and individually, and Deputy Eastwood,
individually, filed a Motion to Dismiss pursuant to Fed. Rule
Civ. P. 12(b)(6), as did the Mayes County Commissioners
considering a motion to dismiss under Rule 12(b)(6), a court
must determine whether the claimant has stated a claim upon
which relief may be granted. A motion to dismiss is properly
granted when a complaint provides no more than “labels
and conclusions, and a formulaic recitation of the elements
of a cause of action.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007). A complaint must
contain enough “facts to state a claim to relief that
is plausible on its fact, ” and the factual allegations
“must be enough to raise a right to relief above the
speculative level.” Id. (citations omitted).
“Once a claim has been stated adequately, it may be
supported by showing any set of facts consistent with the
allegations in the complaint.” Id. at 562.
complaint attacked by a Rule 12(b)(6) motion to dismiss does
not need detailed factual allegations, “a
plaintiff's obligation to provide the grounds of his
entitle[ment] to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Id. at 555
(internal quotations omitted). For the purpose of making the
dismissal determination, a court must accept as true all the
well-pleaded allegations, even if doubtful in fact, and must
construct the allegations in the light most favorable to the
claimant. Id. at 555; Alvarado v. KOB-TV,
L.L.C., 493 F.3d 120, 1215 (10th Cir. 2007); Moffett
v. Haliburton energy Servs., Inc., 291 F.3d 1227, 1231
(10th Cir. 2002).
Allegations of the Complaint
Plaintiff alleges that on February 26, 2014, she was involved
in a single vehicle accident on State Highway 82 near Strang
Road. Complaint at p. 2. The Oklahoma Highway Patrol trooper
investigating the accident noticed she had an odor of alcohol
and slurred speech, and Plaintiff admitted to consuming
alcohol prior to the accident. Id. An ambulance
arrived and Plaintiff was examined. Id. at 3. Upon
information and belief, the trooper patted her down and did
not find any weapons or contraband on her body. Id.
He arrested her for driving under the influence, took her
into custody and transported her to the Mayes County Sheriff
Department. Id. Plaintiff did not resist arrest and
cooperated with the trooper. Id. Upon information
and belief, Defendants Mike Reed, Gary Shrum, Kyle Murry,
Derek Davis and John Does Nos. 1-8 were present and failed to
intervene to prevent the use of excessive force and
unreasonable actions taken against Plaintiff which resulted
in violation of her Fourth and Fourteenth Amendment rights.
Id. at 11.
trooper escorted Plaintiff to the booking area, where there
were a number of sheriff deputies, including Derek Davis and
Jennifer Eastwood. Id. Upon information and belief,
Plaintiff was frisked and no weapons or contraband were found
on her body. Id. at 3.
requested a phone call and to use the restroom, but was told
she needed to wait. Id. She was placed in a detox
cell and, at Eastwood's request, removed the jewelry she
was wearing and gave it to Eastwood. Eastwood then escorted
Plaintiff to a small room and asked her to remove her
clothing so she could perform a strip search. Id.
Plaintiff became upset and began crying, and asked Eastwood
if she could use the restroom because she was menstruating;
however, she was not combative. Id. Eastwood
continued to demand that Plaintiff remove her clothing.
Id. Eastwood became aggressive and told Plaintiff if
she did not remove her clothing she would shoot her.
Id. Eastwood pulled a gun from her holster, held it
approximately twelve inches from Plaintiff's face, and
told her she would ask three times, and if Plaintiff did not
comply, she would shoot her. Id. at 4. Upon
information and belief, Deputy Davis heard Eastwood tell
Plaintiff that she would be shot if she didn't remove her
clothing. Id. Eastwood asked one more time, then
pulled the trigger of the gun, but the gun didn't fire.
information and belief, Eastwood called out to Davis to bring
her another cartridge for her gun, which he did. Id.
After receiving the cartridge, Eastwood loaded her gun and
shot Plaintiff in the eye with a pepper ball. Id.
The force of the shot knocked Plaintiff to the ground and,
upon information and belief, caused her to become
unconscious. Id. Upon information and belief, while
Plaintiff was unconscious, Eastwood removed all of
Plaintiff's clothing and performed a strip search.
Id. When Plaintiff became conscious, she was lying
on the floor of the room naked, being sprayed with water by
Eastwood. Id. Plaintiff was bloody and was in severe
pain. Id. Plaintiff was dressed in an inmate uniform
and escorted to a detox jail cell, where she remained until
the next morning. Id. The next morning, she was
escorted to a different cell, where she stayed for a few
hours, and was then taken to an office where a nurse asked
her if she could see. Id. Plaintiff said
“no” and the nurse responded that she could tell
that Plaintiff's eye was dilated. Id. at 4-5.
Plaintiff was taken back to her cell and given an ice pack
for her eye. Id. at 5. She remained in the cell
until she saw a judge in the afternoon, posted bail and was
released. Id. Plaintiff was not given any treatment
for her injuries while she was in custody. Id. She
was released from custody on or about February 27, 2014, at
2:24 p.m.. Id.
Plaintiff was taken into the care and custody of the County
and Sheriff Department a special relationship was created
whereby an affirmative duty existed to ensure the protection,
safety and well-being of Plaintiff during the time Dodson was
taken into custody and extended through the entire time until
she was released. Id. at 10. No reasonable suspicion
existed to support the suspicion that Plaintiff possessed any
type of contraband or drugs on her body, but despite this,
Eastwood strip searched Plaintiff. Id.
Eastwood's act of strip searching Plaintiff was an
exaggerated response to any legitimate security interest and
was an unreasonable invasion into the Plaintiff's
personal rights. Id. Eastwood's use of an
inflammatory agent to Plaintiff's eyes was unreasonably
excessive and exceeded the amount and type of force necessary
to meet he need presented. Id. It was excessive
because it was not committed in self-defense, in defense of
the general public, staff or inmates. Id. She was
not attempting to prevent a disturbance within the jail or to
ensure the security or safety of others. Id.
Eastwood's use of an inflammatory agent was excessive as
she inflicted severe and permanent injury to Plaintiff.
Id. at 11.
information and belief, Defendants Reed, Shrum, Murry, Davis
and John Does Nos. 1-8 were present at the time of
Eastwood's actions and failed to intervene to prevent the
use of excessive force and unreasonable actions taken against
Plaintiff. Id. Defendant Davis, at Eastwood's
request, brought her an additional cartridge to assist her
and with full knowledge that Eastwood would shoot Plaintiff
with an inflammatory agent. Id. At no time did Davis
intervene to prevent the use of excessive force against
Plaintiff; instead, he participated in the use of excessive
force, which resulted in a violation of her right pursuant to
U.S. Const. amend. IV and XIV. Id.
Reed, Shrum, Murry, Eastwood, Davis and John Does Nos. 1-8
were aware of her injuries but failed to provide Plaintiff
with the necessary and proper medical treatment, in violation
of her rights under the Fourth and Fourteenth Amendments.
Id. They failed to ensure Plaintiff's reasonable
care and safety while in custody, were deliberately
indifferent to her needs, and suspected or knew that her
placement in custody was dangerous in violation of her rights
under the Fourth and Fourteenth Amendments. Id. at
Eastwood's use of the pepper gun and strip search was
excessive and unreasonable, given the circumstances, and it
violated the Sherriff's policies and the pepper gun
manufacturer user/training manual. Id.
contends the frisk search violated Mayes County's Frisk
Search Policy and Procedures and its Use of Force/Deadly
Force Policy and ...