United States District Court, N.D. Oklahoma
OPINION AND ORDER
V. EAGAN, UNITED STATES DISTRICT JUDGE
before the Court are defendants Trina Strout, Scott Woodson,
and Vannessa Stinnett's motion to dismiss (Dkt. # 17),
defendants Charene Nowicki, Margaret Eagler, Ashley Dugger,
Naciska Gilmore, and Latressa Avery's motion to dismiss
(Dkt. # 18), and defendant Oklahoma Department of Human
Services (OKDHS)'s motion to dismiss (Dkt. # 26).
December 28, 2018, plaintiff Donna Washington filed a pro
se complaint (Dkt. # 1) against defendants OKDHS and
eight OKDHS employees, seeking relief pursuant to 42 U.S.C.
§ 1983 for alleged violations of her rights under the
Fourth, Fifth, Ninth, and Fourteenth Amendments of the U.S.
Constitution. Plaintiff seeks $20, 000 in economic damages,
$350, 000 in non-economic damages, $500, 000 in punitive
damages, and a protective order against OKDHS on behalf of
her family. Id. at 5. On February 12, 2019,
defendants Strout, Woodson, and Stinnett filed a motion to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)
(Dkt. # 17). That same day, defendants Nowicki, Eagler,
Gilmore, Avery, and Dugger also filed a motion to dismiss
pursuant to Rule 12(b)(6) (Dkt. # 18). Plaintiff filed a
response (Dkt. # 22) to the individual defendants'
motions, and attached 128 pages of supporting
documents. The individual defendants jointly filed a
reply (Dkt. # 24) to plaintiff's response. On March 29,
2019, OKDHS filed a motion to dismiss pursuant to Rules
12(b)(1) and 12(b)(6) (Dkt. # 24). Plaintiff has not
responded to OKDHS's motion.
se complaints are held to less stringent standards than
pleadings drafted by lawyers, and must be construed
liberally. Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991). Nevertheless, the Court should not assume
the role of advocate for the pro se litigant.
Id. Moreover, even pro se plaintiffs are
required to comply with the “fundamental requirements
of the Federal Rules of Civil Procedure.” Ogden v.
San Juan Cty., 32 F.3d 452, 455 (10th Cir. 1994). As an
initial matter, the Court notes that certain portions of
plaintiff's pro se complaint are fairly
incoherent. To the extent the Court is able to decipher
plaintiff's allegations, the complaint fails to provide
sufficient details and contextual information to allow the
Court to fully comprehend plaintiff's claims. The Court
recites the allegations as asserted in plaintiff's
pro se complaint.
alleges that, on June 12, 2018, she exercised her right to be
free from governmental interference upon completion of a
investigation for medical neglect/failure to obtain medical
attention for plaintiff's minor. Dkt. # 1, at 6. On June
13, 2018, OKDHS called plaintiff to inform her that it had
received claims that plaintiff was refusing to keep an EEG
appointment scheduled for her child, and threatened to remove
plaintiff's child from her home. Id. On June 14,
2018, plaintiff received another phone call from OKDHS, again
claiming that plaintiff was refusing to keep the EEG
appointment scheduled, and threatening to get the district
attorney involved in order to remove plaintiff's child
from her custody. Id. On June 15, 2018, CPS filed
allegedly fraudulent reports of medical neglect with the
court,  and then showed up to plaintiff's
house with eight to ten police officers. Id.
Plaintiff refused to let them into her house. Id.
CPS then filed additional allegedly fraudulent reports with
the court, and obtained an “unlawful warrant” to
enter plaintiff's house and remove her child.
Id. Later that day, CPS and eight to ten officers
returned to plaintiff's house, kicked down her door, and
aimed a semi-automatic rifle at plaintiff and her children.
Id. The police officers allegedly threatened
plaintiff, stating that all of her children would be taken if
she did not cooperate. Id. The officers detained
plaintiff. Id. The child's father arrived at
plaintiff's house, and CPS allegedly deprived the father
of his parental rights. Id. Without plaintiff's
consent, the police officers and defendant Gilmore forcefully
removed plaintiff's son from the home and had him
medically evaluated. Id. That evening, plaintiff
received a phone call from defendant Avery, requesting
placement options for plaintiff's child. Id. at
7. Plaintiff explained to Avery that there had been mistake.
Id. Avery responded that she had tried to inform
plaintiff that they were going to take her son, and that
plaintiff had to take it up with the judge because plaintiff
had presented her with this information too late.
Id. After the medical evaluation report showed that
plaintiff's child was stable with no medical concerns,
OKDHS refused to return the child to plaintiff. Id.
26, 2018, CPS again filed allegedly fraudulent reports with
the court to have plaintiff's parental rights terminated.
Id. Plaintiff sought help and support from the
child's father, and, in response, OKDHS filed allegedly
fraudulent reports with the court against the father,
terminated the father's parental rights, and placed
restrictions on his and plaintiff's visitations with the
child. Id. CPS then had the child undergo allegedly
unnecessary medical treatments and evaluations, did not allow
plaintiff to attend any of the child's medical tests or
evaluations, and refused to give plaintiff copies of
paperwork from the doctors. Id. Plaintiff alleges
that CPS conspired with an individual named Dr. Seigler to
influence EEG results and to claim a seizure disorder.
Id. Further, plaintiff alleges that CPS forced her
child to see a therapist to convince him of a false disorder
that he does not have. Id. Plaintiff alleges that
defendant Nowicki “breached established agreement for
conflict of interest regarding patient and doctor, ”
and continued to force repeat testing of plaintiff's
child during which misconduct had taken place. Id.
at 8. Plaintiff filed a complaint with the Oklahoma Medical
Board against Dr. Seigler. Id. Plaintiff alleges
that, in response, defendant Nowicki placed tighter
restrictions on plaintiff's communication with her child,
demanded access to plaintiff's other children, and
threatened to have the judge produce those children if
plaintiff did not comply. Id. Further, plaintiff
alleges that CPS falsely removed funds by taking her
child's disability check. Id. at 7.
9, 2018, plaintiff informed defendant Nowicki that she was
concerned about a child welfare worker's inappropriate
behavior towards plaintiff's child. Id. at 8.
Plaintiff alleges that her concerns were dismissed.
Id. On July 10, 2018, plaintiff received an email
from defendant Avery, stating that plaintiff was erratic and
that her logic and deductions were conspiracy theories, and
threatening to place the claim into plaintiff's permanent
file. Id. On July 17, 2018, plaintiff emailed
defendant Dugger regarding Nowicki's alleged misconduct.
Id. No. actions were taken against the misconduct.
Id. On August 13, 2018, OKDHS documented allegedly
false information on file, requiring plaintiff to undergo and
complete unnecessary mental health treatment and other
required programs, and to have those treatment results
released to OKDHS in order to have plaintiff's child
returned to her. Id.
September 10, 2018, after plaintiff had regained custody of
her child, OKDHS filed a temporary order to supervise the
case to maintain access to plaintiff's child.
Id. On September 17, 2018, after obtaining evidence
that the EEG appointment scheduled by plaintiff was in fact
cancelled by OKDHS, plaintiff asked defendant Eagler to
present this evidence and to have the case dismissed.
Id. at 9. Plaintiff alleges that defendant Eagler
failed to intervene, and informed her that, pursuant to state
law, she would need to speak to the child privately and away
from plaintiff. Id. Plaintiff refused to allow the
private communication. Id. Plaintiff alleges that
CPS conspired with her child's school to produce
seizure-like activity and claim a false seizure. Id.
Plaintiff's case was dismissed on November 26, 2018.
Id. Plaintiff alleges that defendant Eagler informed
her that, even with the case being dismissed, “it will
still read differently on other files and records.”
Court first considers defendant OKDHS's motion to dismiss
pursuant to Rule 12(b)(1) for lack of subject matter
jurisdiction based on Eleventh Amendment sovereign immunity.
Federal courts are courts of limited jurisdiction and, as the
party seeking to invoke federal jurisdiction, plaintiff bears
the burden of proving that jurisdiction is proper.
Southway v. Cent. Bank of Nigeria, 328 F.3d 1267,
1274 (10th Cir. 2003). A court lacking jurisdiction
“cannot render judgment but must dismiss the cause at
any stage of the proceedings in which it becomes apparent
that jurisdiction is lacking.” Basso v. Utah Power
& Light Co., 495 F.2d 906, 909 (10th Cir. 1974).
Where, as here, the Rule 12(b)(1) motion to dismiss facially
attacks the complaint's allegations as to the existence
of subject matter jurisdiction, the Court must presume all
allegations contained in the complaint to be true. Ruiz
v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002).
Amendment sovereign immunity is considered a limitation on a
federal court's subject matter jurisdiction. The Eleventh
Amendment renders a state immune from suits brought in
federal courts by her own citizens as well as citizens of
another state. Pennhurst St. Sch. & Hospital v.
Halderman, 465 U.S. 89, 100 (1984). State agencies that
qualify as arms of the state possess sovereign immunity, as
well. Sturdevant v. Paulsen, 218 F.3d 1160, 1164
(10th Cir. 2000). This immunity applies to a state entity
whether a plaintiff seeks declaratory, injunctive, or
monetary relief. Fed. Mar. Comm'n v. S.C. State Ports
Auth., 535 U.S. 743, 765 (2002); Ellis v. Univ. of
Kan. Med. Ctr., 163 F.3d 1186, 1196 (10th Cir. 1998).
However, the Supreme Court has recognized two instances in
which an individual may nonetheless sue a state: (1) where
the suit is authorized by Congress, and (2) where a state
voluntarily waives its sovereign immunity. Coll. Sav.
Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd.,
527 U.S. 666, 670 (1999). Absent congressional authorization
or waiver, federal courts do not have subject matter
jurisdiction over states or arms of states.
the Tenth Circuit and this Court have repeatedly recognized
that OKDHS is an arm of the State of Oklahoma to which
Eleventh Amendment immunity applies. McKinney v. State of
Okla., Dep't of Human Servs., 925 F.2d 363, 365
(10th Cir. 1991); Seaton v. Oklahoma ex rel. Dep't of
Human Servs., No. 14-CV-780-JED-PJC, 2017 WL 1160579, at
*3 (N.D. Okla. March 28, 2017); Legates v. Oklahoma ex
rel. Rogers Cty. Dep't of Human Servs., Nos.
09-CV-644-FHM & 09-CV-29-FHM, 2010 WL 4941437, at *4
(N.D. Okla. Nov. 30, 2010). Furthermore, neither exception to
sovereign immunity is applicable in this case. It is
well-settled that Congress did not abrogate states'
Eleventh Amendment immunity when it enacted § 1983.
Quern v. Jordan, 440 U.S. 332, 345 (1979). Moreover,
plaintiff does not allege, nor is there any indication in the
record, that OKDHS has waived its Eleventh Amendment immunity
in this case. Therefore, the Court finds that the Eleventh
Amendment precludes this Court from hearing plaintiff's
claims against OKDHS on the merits. Accordingly, the Court
finds that OKDHS's motion to dismiss pursuant to Rule
12(b)(1) should be granted with prejudice for lack of subject
matter jurisdiction. Having determined that the Court lacks
subject matter jurisdiction to hear plaintiff's claims
against OKDHS, the Court does not reach OKDHS's arguments
in support of dismissal pursuant to Rule 12(b)(6).
the Court considers the two Rule 12(b)(6) motions to dismiss
filed by the individually-named defendants. In 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 Atl. 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 face” 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. For the purpose of
making the dismissal determination, a court must accept all
the well-pleaded allegations of the complaint as true, even
if doubtful in fact, and must construe the allegations in the
light most favorable to a claimant. Id. at 555;
Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215
(10th Cir. 2007); Moffett v. Halliburton Energy Servs.,
Inc., 291 F.3d 1227, 1231 (10th Cir. 2002). All
individual defendants assert the following bases for
dismissal pursuant to Rule 12(b)(6): (1) plaintiff fails to
allege sufficient facts to state a claim under § 1983;
(2) the individual defendants are entitled to qualified
immunity; and (3) plaintiff is not entitled to the injunctive
relief sought. In addition, defendants Nowicki, Eagler,
Dugger, Gilmore, and Avery argue that plaintiff cannot assert
claims on behalf of others (i.e., her child and the
Failure to State a Claim Under § 1983 and ...