United States District Court, N.D. Oklahoma
OPINION AND ORDER
TERENCE C. KERN UNITED STATES DISTRICT JUDGE
the Court are Motions to Dismiss filed by Vic Regalado, in
his official capacity, Armor Correctional Health Services,
Inc., Kathy Loehr, Curtis McElroy and Patricia Deane. Docs.
12, 14, 15, 16 and 28. Plaintiff Faye Strain objects to all
of the motions.
August 25, 2017, Plaintiff, as guardian of Thomas Benjamin
Pratt, filed suit against these defendants in
17-CV-488-CVE-FHM. Doc. 2. In her Amended Complaint,
Plaintiff asserted claims for:
• cruel and unusual punishment in violation of the
Eighth and Fourteenth Amendments pursuant to 42 U.S.C. §
1983 against defendants McElroy, Deane, Loehr and an
unidentified nurse, and against Sheriff Regalado in his
official capacity, as well as municipal liability against
• negligence against Armor, McElroy, Deane and Loehr;
• cruel and unusual punishment in violation of Article
II § 9 of the Oklahoma Constitution against all
Id. at 20-26.
March 1, 2018, the Court dismissed the Complaint pursuant to
Fed.R.Civ.P. 12(b)(6). Id. Doc. 39. The Court
concluded Count One of Plaintiff's Complaint-the Eighth
Amendment claim-“was drafted in precisely the fashion
Robbins proscribes, i.e., it is a §
1983 claim against a government agency and a number of
individual government actors-referred to collectively as
‘defendant'-that fails to specify who is alleged to
have done what to whom. Dkt. # 1, at 21-22.”
Id. at 11. The Court further stated:
Under Robbins . . . count one of plaintiff's
complaint fails to provide the individual defendants with
fair notice as to the basis of the claim against them, to
which they are entitled under Fed.R.Civ.P. 8(a)(2). Moreover,
even assuming, arguendo, that count one of
plaintiff's complaint does provide fair notice to
defendants, it nevertheless fails to state a claim for an
Eighth Amendment violation because it does not allege that
any defendant disregarded a risk to Pratt, intentionally
denied or delayed his access to medical care, or interfered
with his treatment once it was prescribed.
Id. The Court concluded that the Section 1983 claim
failed because the facts alleged did not establish the prison
officials “intentionally denied or delayed access to
medical care or intentionally interfered with the treatment
once prescribed.” Id.
Court declined to exercise supplemental jurisdiction over
Plaintiff's remaining claims for common-law negligence
against Armor, McElroy, Deane and Loehr and violation of
Article II § 9 of the Oklahoma State Constitution.
Id. at 11-12.
refiled the case on November 13, 2018. No. 18-CV-583-TCK-FHM.
Doc. 2. The Complaint asserts identical claims
against the same defendants. The Factual Allegation section of
the Complaint is virtually identical to the Factual
Allegation section of the Complaint in the previously-filed
case, except that, in each claim for relief, it recites the
names of individual defendants McElroy, Deane, Loehr and
“the unidentified nurse who encountered Mr. Pratt at
approximately 3:44 a.m. on December 14, 2015.” The
Complaint also adds one new factual allegation, specifically:
59. In February 2015 an auditor/nurse hired by Tulsa
County/TCSO, Angela Mariani, issued a report focused on
widespread failures by Armor Correctional Health Services,
Inc. to abide by its $5 million annual contract with the
County. Mariani also wrote three (3) memos notifying TCSO
that ARMOR failed to staff various medical positions in the
Jail and recommending that the county withhold more than $35,
000 in payments. Her report shows that Jail medical staff
often failed to respond to inmates' medical needs and the
ARMOR failed to employ enough nurses and left top
administrative positions unfilled for months. Meanwhile,
medical staff did not report serious incidents including
inmates receiving the wrong medication and a staff member
showing up “under the influence.”
Id. at 21.
have again filed Motions to Dismiss the Complaint pursuant to
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 Atlantic 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 fact, ” 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.
complaint attacked by a Rule 12(b)(6) motion to dismiss does
not need detailed factual allegations, “a
plaintiff's obligation to provide the grounds of his
entitle[ment] to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Id. at 555
(internal quotations omitted). For the purpose of making the
dismissal determination, a court must accept as true all the
well-pleaded allegations, even if doubtful in fact, and must
construct the allegations in the light most favorable to the
claimant. I ...