United States District Court, W.D. Oklahoma
ANASTASIA GALE ESPINOSA HERNANDEZ, as Personal Representative of the Estate of BRUNO ELIAS BERMEA, deceased, Plaintiff,
BOARD OF COUNTY COMMISSIONERS OF OKLAHOMA COUNTY; JOHN WHETSEL; and ARMOR CORRECTIONAL HEALTH SERVICES, INC., a Florida Corporation, N.A., Defendants.
L. RUSSELL, UNITED STATES DISTRICT JUDGE.
the Court are four separate motions to dismiss filed by
Defendant Board of County Commissioners (Doc. No. 18);
Defendant Whetsel, in his official capacity (Doc. No. 19) and
in his individual capacity (Doc. No. 20); and Defendant Armor
(Doc. No. 21).Plaintiff filed a single response to the
motions filed by the Board and by Sheriff Whetsel in both
capacities (Doc. No. 30) and responded to defendant
Armor's motion (Doc. No. 26). Defendants Board, Whetsel,
individually, and Armor, each filed a reply in support of
dismissal. Upon consideration of the parties'
submissions, the Court finds as follows.
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.”
Id. 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 a 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,
quoting Robbins v. Oklahoma, 519 F.3d 1242, 1247
(10th Cir. 2008)(quoting Twombly, 550
U.S. at 570).
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 tat
“[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).
as personal representative for the Estate of Bruno Elias
Bermea, deceased, filed this action following Mr.
Bermea's death while in the custody of the Oklahoma
County Sheriff at the Oklahoma County Jail. The Amended
Complaint alleges that on June 4, 2016, Mr. Bermea was
arrested by officers of the Oklahoma City Police Department
and delivered to the jail and that “[t]he defendant
Board, defendant Whetsel and defendant Armor were, at all
pertinent times, on notice that Mr. Berea was a diabetic, did
not have functioning kidneys and was in need of kidney
dialysis on a regular basis, multiple times per week.”
(Doc. No. 16, ¶ 16). Although Mr. Bermea allegedly told
certain unidentified detention officers about his diabetes,
kidney failure, and the need for dialysis, no such treatment
was provided between his June 4, 2016 arrest and his death on
June 7, 2016, and Plaintiff contends that officers repeatedly
ignored his request for dialysis (Doc. No. 16, ¶¶
18-20). Plaintiff further alleges that Mr. Bermea had a
colostomy bag and that during his three days at the Oklahoma
County Jail no officer or medical personnel attended to his
bag or assisted him in any way. (Doc. No. 16, ¶ 24).
Rather, two of his cellmates assisted him. (Id.).
Plaintiff alleges that, in light of the physical assessment
required upon intake to the jail, jail and Armor personnel
should have known about Mr. Bermea's colostomy bag. (Doc.
No. 16, ¶ 25).
further alleges that she called the jail to advise personnel,
who are not identified in the Amended Complaint, that Mr.
Bermea lacked kidney function and needed dialysis. (Doc. No.
16, ¶¶ 29-31). She alleges she spoke with an
employee of Armor by telephone and appeared at the jail more
than once during his detention to advise personnel of his
need for dialysis. The decedent's mother also called and
visited the jail and informed officers, again unidentified,
that Mr. Bermea required dialysis (Doc. No.16, ¶3 2).
Plaintiff alleges that Defendants failed to provide medical
care to Mr. Bermea resulting in his death at the jail on June
7, 2016. She alleges “[t]he defendant Board and
defendant Whetsel have admitted the existence of a policy at
the Oklahoma County Jail whereby Jail detention officers
would determine the reality of a prisoner's medical
complaints without consultation with or calling in medical
personnel to make such decisions.” (Doc. No. 16, ¶
58). Additional factual allegations will be set forth herein
as related to the individual movants.
Court notes at the outset that the Motion to Dismiss filed by
the Board strays from the intent of such a motion by
including five pages of facts not contained in the Amended
Complaint which are not subject to consideration by the
Court. Although the Court may take judicial notice of public
records, the facts included by the Defendant go far beyond
the information available in the underlying criminal cases
involving Mr. Bermea. Those additional facts are not part of
the Court's consideration herein. Ironically, Defendants
complain about factual allegations contained in the response
to the motions to dismiss, which the Court has also excluded
from its consideration.
delving into the substance of Plaintiffs' claims, the
Court finds it easiest to remove any redundant claims from
its consideration. Plaintiff sued both the Board of County
Commissioners and Sheriff Whetsel in his official capacity.
Although not argued by Defendant Whetsel in his motion, the
official capacity claim against Defendant Whetsel is a claim
against Oklahoma County, and therefore is redundant to Count
I of the Amended Complaint. Kentucky v. Graham, 473
U.S. 159, 165-166 (1985) (lawsuits against employees in an
official capacity “represent only another way of
pleading an action against an entity of which an officer is
an agent”); Okla. Stat. tit 19, § 4 (a suit
against a county must be brought by naming the board of
county commissioners of that county); Martinez v.
Beggs, 563 F.3d 1082, 1091 (10th Cir. 2009)
(bringing “a claim against [a sheriff] in his official
capacity … is the same as bringing a suit against the
county.”) Accordingly, Count II of the Amended
Complaint hereby is DISMISSED; the Motion to Dismiss (Doc.
No. 19) is GRANTED and the Court turns to the remainder of
Mr. Bermea was a detainee at the Oklahoma County Jail, the
§ 1983 claims alleging that he was denied medical care
are considered under the due process clause of the Fourteenth
Amendment rather than the Eighth Amendment. Berry v. City
of Muskogee, 900 F.2d 1489, 1493 (10th Cir.
1990). Prison officials must provide “humane conditions
of confinement, including … medical care
…” Tafoya v. Salazar, 516 F.3d 912, 916
(10thCir. 2008) (citing Farmer v.
Brennan, 511 U.S. 825, 832 (1994)). Plaintiff must
allege facts demonstrating both the objective and subjective
prongs of deliberate indifference to bring a valid deliberate
indifference claim. Callahan v. Poppell, 471 F.3d
1155, 1159 (10thCir. 2006).
the objective prong, a prisoner must allege that the
complained-of injury or deprivation is, objectively,
“sufficiently serious.” Tafoya, 516 F.3d
at 916 (citing Farmer, 511 U.S. at 834). A medical
need is sufficiently serious if “it is one that has
been diagnosed by a physician as mandating treatment or one
that is so obvious that even a lay person would easily
recognize the necessity for a doctor's attention.”
Sealock v. Colorado, 218 F.3d 1205, 1209
(10th Cir. 2000)(internal quotation marks and
citation omitted). “[I]t is the harm claimed by the
prisoner that must be sufficiently serious to satisfy the
objective component, and not solely ‘the symptoms
presented at the time the prison employee had contact with
the prisoner.'” Martinez, 563 F.3d at 1088
(quoting Mata v. Saiz, 427 F.3d 745, 753-53
(10th Cir. 2005)). The allegation that Plaintiff
died because he did not obtain medical treatment for the
absence of kidney function is sufficiently severe to satisfy
the objective prong. See Martinez, 463 F.3d at 1088
(observing that death, “without doubt, ” is
“sufficiently serious to meet the objective
component” (citation omitted)).
subjective component of the deliberate indifference test
“requires a plaintiff to demonstrate that officials
acted with a ‘sufficiently culpable state of
mind.'” Vega v. Davis, 673 Fed.Appx. 885,
890 (10th Cir. 2016) (quoting Wilson v.
Seiter, 501 U.S. 294, 298 (1991)). Further, “a
prison official cannot be liable unless the official knows of
and disregards an excessive risk to inmate health or safety;
the official must both be aware of facts from which the
inference could be drawn that a substantial risk of serious
harm exists, and he must also draw the inference.”
Self v. Crum, 439 F.3d 1227, 1231 (10th
Cir. 2006) (internal quotation marks and citation omitted).
Furthermore, the subjective component requires the official
to disregard the specific risk claimed by the plaintiff.
Crocker v. Glanz, 752 Fed.Appx. 564');">752 Fed.Appx. 564, 569
(10th Cir. 2018).
is seeking to hold Sheriff Whetsel, the Board of County
Commissioners, and Armor Correctional Healthcare liable for
the acts or omissions of their employees. Plaintiff may not
sue the County (through the Board of County Commissioners),
the Sheriff, or Armor under § 1983 merely on the grounds
of respondeat superior, that is, because an employee violated
plaintiff's constitutional rights. Connick v.
Thompson, 563 U.S. 51, 60 (2011) (stating principle as
applicable to local governmental defendant); Green v.
Denning, 465 Fed.Appx. 804, 086 (10th Cir.
2012) (applying principle to prison health contractor).
Rather, Plaintiff must allege with regard to each particular
Defendant that its policies or customs deprived Mr. Bermea of
his federally protected rights. See Bd. of Cnty.
Comm'rs of Bryan Cnty. v. Brown, 520 U.S. 397, 403
Count III, Plaintiff seeks relief from Defendant Whetsel in
his individual capacity. Defendant Whetsel argues dismissal
of this claim is appropriate because Plaintiff has failed to
state a claim for relief and further because he is entitled
to qualified immunity. “The doctrine of qualified
immunity protects government officials from liability for
civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of
which a reasonable person would have known.”
Pearson v. Callahan, 555 U.S. 223, 231 (2009)
(internal quotation marks and citation omitted). Once the
defense of qualified immunity has been raised, “the
onus is on the plaintiff to demonstrate ‘(1) that the
official violated a statutory or constitutional right, and
(2) that the right was ‘clearly established' at the
time of the challenged conduct.'” Quinn v.
Young, 780 F.3d 998, 1004 (10th Cir. 2015)
(quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735
(2011)). Regarding the requisite proof of clearly established
law, “[a] plaintiff may satisfy this standard by
identifying an on-point Supreme Court or published Tenth
Circuit decision; alternatively ‘the clearly
established weight of authority from other courts must have
found the law to be as the plaintiff maintains.'”
Quinn, 780 F.3d at 1005 (quoting Weise v.
Casper), 593 F.3d 1163, 1167 (10th Cir.
2010)); see also Klen v. City of Loveland, 661 F.3d
498, 511 (10th Cir. 2011).
Court is free to address either prong of the qualified
immunity analysis first. Where, as here, Plaintiff alleges
denial of access to medical care by a pretrial detainee, the
issue of whether the law was clearly established is
straightforward. It has been clearly established for decades
that “pretrial detainees are entitled under the
fourteenth amendment's due process clause to the same
degree of protection regarding medical attention afforded
convicted inmates under the eight amendment.” See,
e.g., Martin v. Board of County Commr's of County of
Pueblo, 909 F.2d 405, 406 (1990). Accordingly, the Court
considers whether Plaintiff has sufficiently alleged that Mr.
Berea's constitutional rights were violated by Defendant
Whetsel, who is sued because of his role as Sheriff.
§ 1983 defendant sued in an individual capacity may be
subject to personal liability and/or supervisory
liability.” Brown v. Montoya, 662 F.3d 1152,
1163 (10th Cir. 2011). “[S]upervisory
liability allows a plaintiff to impose liability upon a
defendant-supervisor who creates, promulgates, [or]
implements … a policy … which subjects, or
causes to be subjected that plaintiff to the deprivation of
any rights … secured by the Constitution.”
Cox v. Glanz, 800 F.3d 1231, 1248 (10th
Cir. 2015) (internal quotation marks and citation omitted).
To state a claim for § 1983 supervisory liability, a
plaintiff must allege “(1) the defendant promulgated,
created, implemented or possessed responsibility for the
continuing operation of a policy that (2) caused the
complained-of constitutional harm, and (3) acted with the
state of mind required to establish the alleged
constitutional deprivation.” Dodds v.
Richardson, 614 F.3d 1185, 1199 (10th Cir.
2010). Although many of Plaintiff's allegations are
nothing more than vague assertions that Defendant Whetsel
failed to properly hire, train, supervise, and retain jail
employees, Plaintiff includes one allegation of an alleged
policy that the Court concludes pushes Count III over the
The Defendant Board and defendant Whetsel have admitted the
existence of a policy at the Oklahoma County Jail whereby
Jail detention officers would determine the reality of a
prisoner's medical complaints without consultation ...