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Powell v. Board of County Commissioners of Oklahoma County

United States District Court, W.D. Oklahoma

May 23, 2019

HEATHER POWELL, individually and as mother, next friend and guardian of Elizabeth Kiley Eaton, Plaintiff,



         Before 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.[1]


         This 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 rights.

         To 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 offenses.

         ■ 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 herself.

         ■ 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.

         The 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 jurisdiction.


         “To 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).

         Further, 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).

         “In 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.”).

         Finally, “[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).

         A Rule 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. Id.


         The 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.

         1. Standing

         Although 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.

         First, 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).

         Second, 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).

         “Rule 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 ...

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