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Hernandez v. Board of County Commissioners of Oklahoma County

United States District Court, W.D. Oklahoma

July 12, 2019

ANASTASIA GALE ESPINOSA HERNANDEZ, as Personal Representative of the Estate of BRUNO ELIAS BERMEA, deceased, Plaintiff,



         Before 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).[1]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.

         “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.” 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).

         “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 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).

         Plaintiff, 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).

         Plaintiff 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.

         The 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.

         Before 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 Plaintiff's claims.

         Because 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).

         Under 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)).

         The 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).[2]

         Plaintiff 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 (1997).

         In 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).[3]

         The 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.

         “A § 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).[4] “[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 plausibility line.

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 ...

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