United States District Court, W.D. Oklahoma
HEATHER POWELL, individually and as mother, next friend and guardian of Elizabeth Kiley Eaton, Plaintiff,
BOARD OF COUNTY COMMISSIONERS OF OKLAHOMA COUNTY, OKLAHOMA COUNTY DETENTION CENTER, SHERIFF JOHN WHETSEL, OKLAHOMA COUNTY SHERIFF'S DEPARTMENT, CORRECTIONAL HEALTHCARE MANAGEMENT, INC., ARMOR CORRECTIONAL HEALTH SERVICES, INC., and JOHN DOE 1-10, Defendants.
TIMOTHY D. DEGIUSTI UNITED STATES DISTRICT JUDGE.
the Court is the Motion to Dismiss Amended Complaint filed by
Defendant Board of County Commissioners of Oklahoma County
(“BOCC”) [Doc. No. 21]. Also pending before the
Court is the Motion to Dismiss Amended Complaint filed by
Defendant John Whetsel (“Whetsel”) in his
official capacity as Oklahoma County Sheriff [Doc. No. 22].
Plaintiff has timely responded to each motion [Doc. Nos. 25,
26], and the respective movants have replied [Doc. No. 27].
Because the motions are based on the same legal issues, both
are addressed in this Order.
case arises out of the suicide attempt of Elizabeth Kiley
Eaton while she was a pretrial detainee at the Oklahoma
County Detention Center (“OCDC”) on June 29,
2016. Because of the suicide attempt, Ms. Eaton was rendered
comatose and remains in a vegetative state. Plaintiff Heather
Powell - as Eaton's mother, next friend, and duly
appointed guardian and as an individual - asserted claims
against the BOCC, the OCDC, Whetsel, the Oklahoma County
Sheriffs Department, Correctional Healthcare Management, Inc.
(“CHM”), Armor Correctional Health Services, Inc.
(“Armor”), and John Doe 1-10 for negligence and
for alleged violations of Ms. Eaton's constitutional
summarize, the Amended Complaint [Doc. No. 18] alleges:
Ms. Eaton was arrested on April 30, 2016, and taken to the
OCDC, where she remained until her suicide attempt on June
29, 2016. She was 21 years old and charged with violating
the terms and conditions of her deferred sentence for
second-degree burglary (felony) and two misdemeanor
When Ms. Eaton was booked in, she showed signs of
depression and despondency. A mental evaluation was
scheduled, but according to OCDC records, Ms. Eaton did not
show for her appointment. No. follow-up attempts were made
to diagnose and treat her mental illness.
Prior to Ms. Eaton's jail stay, she had been diagnosed
with bipolar disorder and borderline personality disorder.
She had a long history of mental illness, and as an
adolescent had been a patient in several behavioral
institutions. Ms. Eaton told Plaintiff that the OCDC had
“refused to put her back on Risperdal.” [Doc.
No. 18 at ¶ 12].
Ms. Eaton's cellmate recalled Ms. Eaton waking up,
crying, and saying she “wanted to die.”
Id. Ms. Eaton's cellmate reported to jailers
that Ms. Eaton was “hearing voices” and had
said she “couldn't take it anymore.”
Id. at ¶ 20. In a recorded jail call from Ms.
Eaton to her mother, Ms. Eaton said she was going to kill
herself. Ms. Eaton sent Plaintiff a letter from the jail in
which she stated that she was crying and was
“emotional.” Id. at ¶ 12.
Ms. Eaton's arresting officer told Plaintiff that Ms.
Eaton seemed as if she did not care about anything.
On June 29, 2016, Ms. Eaton attempted to kill herself by
hanging. She tied a sheet or pillow case to a grate above
the sink in her jail cell and jumped off the sink. Because
of the suicide attempt, Ms. Eaton was rendered comatose and
remains in a vegetative state.
The OCDC was aware of Ms. Eaton's mental condition and
did nothing to prevent or prepare for a possible suicide
attempt by Ms. Eaton. Medical personnel at the jail never
assessed Ms. Eaton to determine if she posed a danger to
Armor and CHM had a contract with Oklahoma County to
provide medical services to inmates at the OCDC.
Alternatively, OCDC staff informed Armor or CHM employees
of Ms. Eaton's mental condition, and Armor or CHM
failed to provide Ms Eaton with proper medical care.
Whetsel knew that the OCDC was understaffed and
under-supervised. He had requested multiple funding
increases, which were rejected by the BOCC. This lack of
funding caused or contributed to the unconstitutional
practices at the OCDC.
At the time of Ms. Eaton's admission, the OCDC had more
than 2, 000 detainees, which was nearly double its rated
capacity. The large number of detainees, coupled with the
awkward physical layout of the jail cells made adequate
supervision of detainees “virtually
non-existent.” Id. at ¶ 27. At the time
of the incident, the OCDC was not adequately staffed to
maintain necessary supervision or to meet the basic medical
needs of inmates.
Due to overcrowding, the OCDC did not have sufficient jail
cells to match the classification level of the detainees
according to accepted standards of correctional practice.
The OCDC did not adequately screen detainees for serious
medical problems, did not adequately provide detainees
access to medical care, and the medical care that was
provided was “superficial and meaningless.”
Id. at ¶ 30.
The United States Department of Justice (“DOJ”)
conducted inspections of the OCDC in April 2007 In its
letter to the BOCC, the DOJ noted that certain conditions
at the OCDC violated the constitutional rights of
detainees. These constitutional violations continued
through 2016. In 2009, the BOCC entered a memorandum of
understanding with the DOJ. The BOCC agreed to implement
mental health policies and procedures and to maintain
sufficient staff. The BOCC agreed to screen all written
requests for mental health care within 24 hours and to see
patients within the next 72 hours or sooner.
Before Ms. Eaton's suicide attempt, a male inmate had
used a ventilation grill to hang himself. The DOJ
specifically criticized the OCDC concerning this safety
issue: “cells have ventilation grills and other
fixtures that have not been modified to minimize the risk
that they may [be] used to facilitate a suicide
attempt.” Id. at ¶ 40.
There have been “44 deaths in the recent past”
at the OCDC. Id. at ¶ 30.
BOCC and Whetsel move to dismiss under Fed.R.Civ.P. 12(b)(6)
for failure to state a claim upon which relief can be
granted. The BOCC also moves for dismissal pursuant to
Fed.R.Civ.P. 12(b)(1) for lack of subject matter
survive a motion to dismiss [under Rule 12(b)(6)], a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678. The “plausibility
standard” announced in Twombly and
Iqbal is not a “heightened standard” of
pleading, but rather a “refined standard.”
Khalik v. United Air Lines, 671 F.3d 1188, 1191
(10th Cir. 2012) (citing Kansas Penn Gaming,
LLC v. Collins, 656 F.3d 1210, 1214 (10th
Cir. 2011)). Under the “refined standard, ”
plausibility 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.'”
Khalik, 671 F.3d at 1191; see also Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir.
2008) (quoting Twombly, 550 U.S. at 570).
the Tenth Circuit has noted that “[t]he nature and
specificity of the allegations required to state a plausible
claim will vary based on context.” Khalik, 671
F.3d at 1191 (quoting Kansas Penn Gaming, 656 F.3d
at 1215). “Thus, [it has] concluded the
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.'” Id. (quoting Robbins,
519 F.3d at 1247).
other words, Rule 8(a)(2) still lives. There is no indication
the Supreme Court intended a return to the more stringent
pre-Rule 8 pleading requirements.” Id. It
remains true that “[s]pecific 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.'” Erickson v. Pardus, 551 U.S. 89,
93 (2007) (quoting Twombly, 550 U.S. at 555);
see also al-Kidd v. Ashcroft, 580 F.3d 949, 977
(9th Cir. 2009) (“Twombly and
Iqbal do not require that the complaint include all
facts necessary to carry the plaintiff's burden.”).
“[w]hile the 12(b)(6) standard does not require that
Plaintiff establish a prima facie case in [its] complaint,
the elements of each alleged cause of action help to
determine whether Plaintiff has set forth a plausible
claim.” Khalik, 671 F.3d at 1192 (citing
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002).
“[A] well-pleaded complaint may proceed even if it
strikes a savvy judge that actual proof of [the alleged]
facts is improbable, and ‘that a recovery is very
remote and unlikely.'” Sanchez v. Hartley,
810 F.3d 750, 756 (10th Cir. 2016) (citing
Twombly, 550 U.S. at 556).
12(b)(1) motion to dismiss for lack of subject matter
jurisdiction takes one of two forms: a facial or a factual
attack. Pueblo of Jemez v. United States, 790 F.3d
1143, 1148 n. 4 (10th Cir. 2015). A facial attack
questions the sufficiency of the complaint's allegations.
Id. In reviewing a facial challenge, a district
court must accept the allegations in the complaint as true.
Id. However, in a factual attack, the moving party
may go beyond the allegations contained in the complaint and
challenge the facts upon which subject matter jurisdiction
depends. Id. A district court may not presume the
truthfulness of the complaint's factual allegations when
reviewing a factual attack on subject matter jurisdiction.
Id. Rather, a court has wide discretion to allow
affidavits, other documents, and a limited evidentiary
hearing to resolve disputed jurisdictional facts.
BOCC and Whetsel move to dismiss Plaintiff's Amended
Complaint asserting that Plaintiff has failed to state a
claim upon which relief may be granted and that the Court
lacks subject matter jurisdiction over Plaintiff's
supplemental state law claims. Additionally, the BOCC
contends that Plaintiff lacks Article III standing to sue.
The Court will take up the issue of standing first.
couched in terms of subject matter jurisdiction, the premise
of the BOCC's argument is that Plaintiff's factual
allegations are insufficient to state a civil rights action
under 42 U.S.C. § 1983. [Doc. No. 21 at 13-20].
Specifically, the BOCC argues that Eaton's injuries are
not fairly traceable to any act or omission by the BOCC
because it has no authority to act in operating the OCDC.
Id. Federal courts have repeatedly cautioned against
a procedure that would allow a Rule 12(b)(1) motion to
dismiss for lack of subject matter jurisdiction to become an
attack on the merits. See, e.g., Davis v. Wells
Fargo, 824 F.3d 333, 348 (3d Cir. 2016). Caution is
necessary because the standards governing the two rules
differ significantly, as Rule 12(b)(6) provides greater
procedural and substantive protections for plaintiffs.
Id. at 348-349.
proceeding under Rule 12(b)(1) inverts the burden of
persuasion. Id. at 349. When presenting a Rule
12(b)(6) motion, the defendant bears the burden to show that
the plaintiff has not stated a claim whereas under Rule
12(b)(1) the plaintiff must prove the Court has subject
matter jurisdiction. Id.; see also United States ex rel.
Hafter, D.O. Spectrum Emergency Care, Inc., 190 F.3d
1156, 1160 (10th Cir. 1999) (“If
jurisdiction is challenged, the burden is on the party
claiming jurisdiction to show it by a preponderance of the
evidence.”) (citation omitted).
the two rules approach the factual allegations in the
complaint very differently. Davis, 824 F.3d at 349.
Unlike Rule 12(b)(6), under which a defendant cannot contest
the plaintiff's well-pled factual allegations, Rule
12(b)(1) allows a defendant to challenge the allegations in
the complaint and submit evidence outside the complaint to
show that the court lacks jurisdiction. Id.; see
also Holt v. United States, 46 F.3d 1000, 1002-03
(10th Cir. 1995). “Thus, improper
consideration of a merits question under Rule 12(b)(1)
significantly raises both the factual and legal burden on the
plaintiff. Given the differences between the two rules,
‘a plaintiff may be prejudiced if what is, in essence,
a Rule 12(b)(6) challenge to the complaint is treated as a
Rule 12(b)(1) motion.'” Davis, 824 F.3d at
349 (citation omitted).
12(b)(6) - with its attendant procedural and substantive
protections for plaintiffs - is the proper vehicle for the
early testing of a plaintiff's claims.”
Id. The BOCC does not contend that Plaintiff is the
wrong person to bring the claims. Rather, it argues that she
has filed suit against the wrong party, and her claims are
without merit because the BOCC has no authority to act in
operating the OCDC. “That may be true …. But
[the BOCC] may not short-circuit the usual process, flip the
burden of persuasion, and ...