Stewart v. Oklahoma Department of Corrections et al

Filing 96

OPINION AND ORDER by Magistrate Judge Steven P. Shreder GRANTING IN PART AND DENYING IN PART 80 Motion to Dismiss Defendants Collins, Mcguire, Richardson,Bennefield, Hendrex, and West; Granted as to Defendants Collins, McGuire, Richardson, Bennefie ld, and Hendrex in their individual and official capacities, and Defendant West in his official capacity; Denied as to Defendant West in his individual capacity. GRANTING 81 Motion to Dismiss Plaintiff's Second Amended Complaint by Edward Bell . GRANTING 82 Motion to Dismiss Plaintiff's Second Amended Complaint by Phillip Carey. GRANTING 83 Motion to Dismiss Plaintiff's Second Amended Complaint by Terry Martin. GRANTING 84 Motion to Dismiss Plaintiff's Second Amended C omplaint by Michael Mullin. GRANTING 85 Motion to Dismiss Plaintiff's Second Amended Complaint by Michael Murry. GRANTING IN PART AND DENYING IN PART 86 Motion to Dismiss Plaintiff's Second Amended Complaint by Oklahoma Department of Corrections; Granted as to Counts II-V; Denied as to Count I. GRANTING 89 Motion for Court to Take Judicial Notice by Marcilla Nicole Stewart. (ndd, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
MARCILLA NICOLE STEWART,

)
)
Plaintiff,
)
)
v.
)
)
OKLAHOMA DEPARTMENT OF
)
CORRECTIONS, MICHAEL MULLIN, )
TERRY MARTIN, KEVIN COLLINS, )
MICHAEL MURRY, DAVID
)
MCGUIRE, PETER RICHARDSON,
)
EDWARD BELL, CASEY
)
BENNEFIELD, PHILLIP CAREY,
)
JOSEPH HENDREX, and KELLY
)
WEST,
)
)
Defendants.
)

Case No. CIV-14-167-SPS

OPINION AND ORDER
This case arises of the Plaintiff Marcilla Nicole Stewart’s employment at Jess
Dunn Correctional Facility in Taft, Oklahoma. The Plaintiff has sued the Oklahoma
Department of Corrections (“ODOC”), as well as Michael Mullin, Terry Martin, Kevin
Collins, Michael Murry, David McGuire, Peter Richardson, Edward Bell, Casey
Bennefield, Phillip Carey, Joseph Hendrex, and Kelly West, 1 in their individual and
official capacities, alleging violations of Title VII, 42 U.S.C. § 1983, and Oklahoma state
law based on a hostile work environment, retaliation, quid pro quo sexual harassment,

1

The Plaintiff also named as a defendant Vicki Kyzer, in her individual and official capacities,
but the Plaintiff dismissed all claims against Ms. Kyzer with prejudice on October 15, 2014. See
Docket No. 63.

failure to promote, and gender discrimination. The Defendants now all seek dismissal of
the Plaintiff’s Complaint. For the reasons set forth below, the Court finds that the Motion
to Dismiss Defendants Collins, McGuire, Richardson, Bennefield, Hendrex, and West
[Docket No. 80] should be GRANTED as to Defendants Collins, McGuire, Richardson,
Bennefield, and Hendrex in their individual and official capacities, and Defendant West
in his official capacity, and DENIED as to Defendant West in his individual capacity;
Defendant Edward Bell’s Motion to Dismiss Plaintiff’s Second Amended Complaint and
Brief in Support [Docket No. 81] should be GRANTED; Defendant Phillip Carey’s
Motion to Dismiss Plaintiff’s Second Amended Complaint and Brief in Support [Docket
No. 82] should be GRANTED; Defendant Terry Martin’s Motion to Dismiss Plaintiff’s
Second Amended Complaint and Brief in Support [Docket No. 83] should be
GRANTED; Defendant Michael Mullin’s Motion to Dismiss Plaintiff’s Second Amended
Complaint and Brief in Support [Docket No. 84] should be GRANTED; Defendant
Michael Murry’s Motion to Dismiss Plaintiff’s Second Amended Complaint and Brief in
Support [Docket No. 85] should be GRANTED; and Defendant Oklahoma Department of
Corrections’ Motion to Dismiss Plaintiff’s Second Amended Complaint and Brief in
Support [Docket No. 86] should be GRANTED IN PART and DENIED IN PART.
I. Procedural History
The Plaintiff states in her Second Amended Complaint that she was employed at
the Jess Dunn Correctional Center in Taft, Oklahoma beginning January 3, 2011, through
October 26, 2012, when she was allegedly constructively discharged. On November 29,
2012, the Plaintiff filed an Employment Discrimination Complaint with the Equal
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Employment Opportunity Commission, describing a number of encounters beginning in
February 2011 and going through October 23, 2012. On January 20, 2014, the EEOC
issued a Notice of Right to Sue letter. See Docket No. 89, Exs. 1-2. As requested by the
Plaintiff in her unopposed motion, see Docket No. 89, the Court takes judicial notice of
these documents as a matter of public record.

See Jenkins v. Educational Credit

Management Corp., 212 Fed. Appx. 729, 733 (10th Cir. 2007) (“[I]t is appropriate,
particularly in the exhaustion context, for a district court to consider evidence beyond the
pleadings in resolving a challenge to subject-matter jurisdiction.”), citing Davis ex rel.
Davis v. United States, 343 F.3d 1282, 1296 (10th Cir. 2003). See also Tal v. Hogan, 453
F.3d 1244, 1264 n.24 (10th Cir. 2006) (“[F]acts subject to judicial notice may be
considered in a Rule 12(b)(6) motion without converting the motion to dismiss into a
motion for summary judgment.”) [citations omitted].
The Plaintiff then filed this case on August 28, 2013, in Oklahoma state court in
Muskogee County, Case No. CJ-2013-359, against the above-named Defendants. 2
Before serving the Defendants, she filed a First Amended Petition on April 2, 2014, and
subsequently served the Defendants. ODOC then removed the case to this Court and
filed a Motion to Dismiss, and the Plaintiff filed an Amended Complaint on May 29,
2014. The remaining Defendants then also filed Motions to Dismiss the Amended
Complaint on September 19, 2014, and ODOC once again moved for dismissal of the
Amended Complaint on October 20, 2014. See Docket Nos. 53-58, 69. The Plaintiff
2

“State court docket sheets are public documents of which the Court may take judicial notice.”
White v. City of Tulsa, Okla., 2013 WL 4784243, at *1 n.2 (N.D. Okla. Sept. 5, 2013), citing
United States v. Mendoza, 698 F.3d 1303, 1307 (10th Cir. 2012).

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filed an Opposed Motion to Amend her Amended Complaint, Docket No. 74, to replace
the original Count VIII with a claim under 42 U.S.C. § 1983 alleging civil conspiracy
against the individual defendants. In a minute order, this Court granted each of the
pending Motions to dismiss and dismissed the Amended Complaint, giving the Plaintiff
fourteen days to amend her Complaint to bring it in compliance with Ashcroft v. Iqbal,
556 U.S. 662 (2009), and also granted Plaintiff’s Motion to Amend her Complaint to the
extent she was permitted to add the proposed Count VIII to any Second Amended
Complaint filed. See Docket No. 78. The Plaintiff filed her Second Amended Complaint
on April 6, 2015,3 and the Defendants all filed Motions to Dismiss the Second Amended
Complaint. See Docket Nos. 80-86. The Court has stricken all attendant deadlines in this
case pending resolution of these Motions to Dismiss.

In her Second Amended

Complaint, the Plaintiff’s claims are set forth as follows: (i) Counts I-V, brought under
Title VII, alleging a hostile work environment, retaliation, quid pro quo sexual
harassment, failure to promote, and gender discrimination, respectively, against ODOC
and the individual Defendants in their official capacities; (ii) Counts VI and VIII,
brought under 42 U.S.C. § 1983, alleging violations of the Equal Protection clause
through approval of hostile work environment and disparate treatment of male and female
employees, and a civil conspiracy, respectively, against the individual Defendants in their
3

Although directed to bring her Second Amended Complaint in Compliance with Iqbal, the
Court notes that the Plaintiff made few substantive changes to her complaint other than to add
the conspiracy claim as Count VIII. All but one of the Motions to Dismiss, Docket Nos. 81-86,
includes a graph describing the minor changes made in the Second Amended Complaint. Rather
than duplicate that information once more, the Court simply notes that the Amended Complaint
and Second Amended Complaint are substantially similar other than the above-stated change to
Count VIII.

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individual capacities; and (iii) Count VII, brought under 25 Okla. Stat. §§ 1101, 1302,
alleging gender discrimination as to ODOC and the individual Defendants in their official
capacities.
As an initial matter, the Court notes that the Plaintiff has conceded that she has
failed to state a claim under Oklahoma state law. The Court agrees and further finds that
amendment of this claim would be futile. Therefore, Count VII is dismissed with
prejudice. See Fed. R. Civ. P. 12(b)(6). See also Brereton v. Bountiful City Corp., 434
F.3d 1213, 1219 (10th Cir. 2006) (“A dismissal with prejudice is appropriate where a
complaint fails to state a claim under Rule 12(b)(6) and granting leave to amend would
be futile.”), citing Grossman v. Novell, Inc., 120 F.3d 1112, 1126 (10th Cir. 1997). The
Court will address the remaining issues and claims in turn.
II. Analysis
ODOC has moved to dismiss the claims against it, arguing: (i) the Plaintiff has
failed to allege sufficient facts to support her claims under Title VII; and (ii) the Plaintiff
failed to exhaust her administrative remedies, including filing timely charges with the
EEOC for each alleged unlawful practice. Defendants Collins, McGuire, Richardson,
Bennefield, Hendrex, and West argue that dismissal should be granted because: (i) the
Title VII claims against them in their official capacities, Counts I-V, are duplicative
because the Plaintiff has also named ODOC in these claims; (ii) they are entitled to
qualified immunity under § 1983; (iii) the claims against Defendants Collins, McGuire,
and possibly Richardson are barred by the statute of limitations; (iv) the Plaintiff has
failed to allege sufficient facts against any of the Defendants to support a § 1983 claim;
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and (v) the Plaintiff’s complaint is devoid of facts to support her conspiracy claim.
Defendants Bell, Carey, Martin, Mullin, and Murry each filed separate but identical briefs
making the identical arguments that: (i) the Title VII claims against them in their official
capacities, Counts I-V, are duplicative; (ii) the Title VII claims also fail to state a claim
under the facts alleged; (iii) the Plaintiff has failed to state a claim on her § 1983 claim;
and (iv) the Defendants are entitled to qualified immunity under § 1983. The Court now
makes the following findings.
A. Counts I – V: Title VII
Official Capacity Claims. The individual Defendants all argue that the Title VII
claims against them in their official capacities are duplicative and therefore redundant
because the Plaintiff also named her employer, ODOC. “Under Title VII, suits against
individuals must proceed in their official capacity[.]” Sauers v. Salt Lake County, 1 F.3d
1122, 1125 (10th Cir. 1993). “As long as the government entity receives notice and an
opportunity to respond, an official-capacity suit is, in all respects other than name, to be
treated as a suit against the entity.” Kentucky v. Graham, 473 U.S. 159, 166 (1985)
[citation omitted]. “[T]he proper method for a plaintiff to recover under Title VII is by
suing the employer, either by naming the supervisory employees as agents of the
employer or by naming the employer directly.” Sauers, 1 F.3d at 1125 (emphasis added)
(quoting Busby v. City of Orlando, 931 F.2d 764, 722 (11th Cir. 1991)). See also Lewis
v. Four B Corp., 211 Fed. Appx. 663, 665 n.2 (10th Cir. 2005) (“[S]upervisors may be
named in their official capacity and/or as alter egos of the employer, but just as a means
to sue the employer, and this procedural mechanism is superfluous where, as here, the
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employer is already subject to suit directly in its own name.”) (citing Haynes v. Williams,
88 F.3d 898, 899 (10th Cir. 1996), and Sauers, 1 F.3d at 1125). Plaintiff has admittedly
pointed to no cases under Title VII allowing suit against both employer and employee in
their official capacity, but argues that the individuals’ acts were independent from and in
addition to the wrongful acts of the DOC, and because she is seeking punitive damages
her claims are not duplicative. In support, she relies solely on a case from the District of
Colorado, Cross Continent Development, LLC v. Town of Akron, Colo., 2012 WL
2568173, at *3 (D. Colo. July 3, 2012) (“[T]he Tenth Circuit has allowed suit against
both the governmental entity and its agent sued in his or her official capacity if ‘either
separate duties were breached or separate injuries resulted’ such that there is an
explanation for the division of damages award between the public entity and its agent.”)
(quoting J.M. ex rel. Morris v. Hilldale Independent Sch. Dist. No. 1-29, 397 Fed. Appx.
445, 462 (10th Cir. 2010)), and statements related to a claim under § 1983. But even that
same District Court dismissed duplicative claims under Title VII, see Bushy v. Medical
Center of Rockies, 2014 WL 4627277, at *2 (D. Colo. Sept. 16, 2014) (“[P]laintiff makes
no attempt to show that Dr. Johar and MCR breached separate duties and the amended
complaint does not allege that each defendant caused separate injuries. Rather, the
claims against Dr. Johar and MCR appear to be identical. Plaintiff has failed to justify
maintaining identical Title VII claims against both Dr. Johar in his official capacity and
MCR.”), and this Court finds that the claims against the individual Defendants in their
official capacities are claims against ODOC and for which ODOC would be liable. See
also Thanongsinh v. Board of Education, 462 F.3d 762, 771 n.7 (7th Cir. 2006) (“The
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covered entity under Title VII is the ‘employer.’ 42 U.S.C. § 2000e-2(a). . . . Because the
claim against Mr. Javetz is a claim against his office, for which his employer, the School
District, would be liable, it is no different than his claim against the School District
itself.”); Cleland v. City of Caney, 1997 WL 49136, at *3 (D. Kan. Jan. 24, 1997)
(“Although plaintiff may sue a defendant in his or her official capacity, it is duplicative
for plaintiff to sue both the individual defendant and the entity. Plaintiff has sued the
City of Caney directly, and, therefore, the court dismisses plaintiff’s Title VII official
capacity claims against the individual defendants.”) (internal citation omitted).
Accordingly, Counts I-V as to Defendants Mullin, Martin, Collins, Murry, McGuire,
Richardson, Bell, Bennefield, Carey, Hendrex, and West, each in their official
capacity, are dismissed as duplicative.
Claims against ODOC. Plaintiff filed an EEOC charge on November 30, 2012,
and received her EEOC Notice of Right to Sue on January 14, 2014. Docket No. 89, Ex.
1, p. 9. See Jenkins, 212 Fed. Appx. at 733 (“[I]t is appropriate, particularly in the
exhaustion context, for a district court to consider evidence beyond the pleadings in
resolving a challenge to subject-matter jurisdiction.”) (citing Davis, 343 F.3d at 1294).
Plaintiff’s Second Amended Complaint alleges that she began her employment at ODOC
on January 3, 2011, and alleges actions beginning “January or February, 2011” through
October 26, 2012, when she found herself unable to return to work. See Docket No. 79,
pp. 3-15, ¶¶ 8-44. Plaintiff’s Second Amended Complaint contains five Counts alleging
violations of Title VII by ODOC: hostile work environment, retaliation, quid pro quo
sexual harassment, failure to promote, and gender discrimination. She acknowledges the
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exhaustion requirement and the 300-day window, but asserts that, as to Count I, acts
outside the 300-day window “may be considered as part of the history of acts comprising
the allegedly hostile work environment.”

Moody v. Oklahoma Department of

Corrections, 879 F. Supp. 2d 1275, 1283 (N.D. Okla. 2012). She does not address how
the exhaustion requirement affects Counts II-V.
“Exhaustion of administrative remedies is a jurisdictional prerequisite to suit
under Title VII.” Jones v. Runyon, 91 F.3d 1398, 1399 (10th Cir. 1996) (quotation
omitted). Under Title VII, a Plaintiff must file a charge of discrimination “within [180]
days after the alleged unlawful employment practice occurred . . . except that in a case of
an unlawful employment practice with respect to which the person aggrieved has initially
instituted proceedings with a State or local agency . . . such charge shall be filed by or on
behalf of the person aggrieved within [300] days after the alleged unlawful employment
practice occurred[.]” 42 U.S.C. § 2000e-5(e)(1). ODOC asserts that the 180-day window
applies and that any claims premised on actions prior to June 2, 2012 must be dismissed.
This Circuit has previously recognized that Oklahoma is a “deferral state,” in which the
300-day window applied. See, e. g., Carson v. Cudd Pressure Control, Inc., 299 Fed.
Appx. 845, 847 & n.1 (10th Cir. 2008). Although the state office in Oklahoma that
handles these claims has changed, 4 courts have continued to classify Oklahoma as a
deferral state.

See, e. g., Avington v. Maxim Healthcare Services, Inc., 2015 WL

4

The office of the Oklahoma Human Rights Commission, created in 1963, was closed effective
June 30, 2012, and all duties and responsibilities were transferred to the newly-created Office of
Civil Rights Enforcement in the Oklahoma Attorney General’s office. 2011 Okla. Senate Bill
763 (not codified in the Oklahoma Statutes).

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5775208, at *4 n.3 (N.D. Okla. Sept. 30, 2015) (slip copy). The Court thus finds that the
300-day window applies to her November 30, 2012 EEOC charge, and that the Plaintiff
has properly exhausted her administrative remedies with respect to claims on or after
February 3, 2012.
“[D]iscrete discriminatory acts are not actionable if time barred, even when they
are related to acts alleged in timely filed charges. Each discrete discriminatory act starts
a new clock for filing charges alleging that act. The charge, therefore, must be filed
within the 180- or 300-day time period after the discrete discriminatory act occurred.”
National R. R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002). However, “[a]
hostile work environment claim is composed of a series of separate acts that collectively
constitute one ‘unlawful employment practice.’” Id., 536 U.S. at 117, quoting 42 U.S.C.
§ 2000e-5(e)(1). Notably, “[a]lthough Title VII does not explicitly mention hostile work
environment, a victim of a racially hostile work environment may nevertheless bring a
cause of action under Title VII.” Tademy v. Pacific Corp., 614 F.3d 1132, 1138 (10th
Cir. 2008) (quotation omitted). However, “[h]ostile environment claims are different in
kind from discrete acts. Their very nature involves repeated conduct. . . . It occurs over a
series of days or perhaps years and, in direct contrast to discrete acts, a single act of
harassment may not be actionable on its own.” Morgan, 536 U.S. at 115 [citations
omitted].

Accordingly, “[t]he timely filing provision only requires that a Title VII

plaintiff file a charge within a certain number of days after the unlawful practice
happened. It does not matter, for purposes of the statute, that some of the component acts
of the hostile work environment fall outside the statutory time period. Provided that an
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act contributing to the claim occurs during the filing period, the entire time period of the
hostile environment may be considered by a court for the purposes of determining
liability.” Morgan, 536 U.S. at 117. The Tenth Circuit has stated that “Morgan holds
that a series of alleged events comprises the same hostile environment where ‘the preand post-limitations period incidents involve[d] the same type of employment actions,
occurred relatively frequently, and were perpetrated by the same managers.’” Duncan v.
Manager, Dept. of Safety, City and County of Denver, 397 F.3d 1300, 1309 (10th Cir.
2005) (quoting Morgan, 536 U.S. at 120).
Thus, “[t]o establish a hostile-work environment claim, ‘a plaintiff must show that
a rational jury could find that the workplace is permeated with discriminatory
intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the
conditions of the victim’s employment and create an abusive working environment.’”
Gerald v. Locksley, 785 F. Supp. 2d 1074, 1098 (D.N.M. 2011) (quoting Davis v. U.S.
Postal Service, 142 F.3d 1334, 1341 (10th Cir. 1998)). Here, Plaintiff has alleged facts
that, inter alia, after February 3, 2012, supervisors at the Facility failed to correct
harassment when she reported it, but treated her as though she were under investigation
for misconduct even after she had been absolved of wrongdoing, and that Defendant
West sexually harassed her on at least two occasions in relation to her applications for a
new position at the facility. Additionally, she alleges that another Sergeant repeatedly
sexually harassed her but that Defendants took no corrective action when she reported it,
and continued to assign her to work with her harasser. See Docket No. 79, pp. 10-14, ¶¶
30-43. These allegations, which all fall within the 300-day window and further relate to
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other allegations outside the 300-day window, timely and sufficiently state a claim of a
hostile work environment. As such, the Plaintiff has stated a claim for relief under
Count I as to Defendant ODOC.
The continuing violation doctrine does not apply, however, to claims of discrete
discriminatory acts, and here, Counts II (retaliation), III (quid pro quo sexual
harassment), IV (failure to promote), and V (gender discrimination) are claims of discrete
discriminatory acts. Morgan, 536 U.S. at 122 (“We conclude that a Title VII plaintiff
raising claims of discrete discriminatory or retaliatory acts must file his charge within the
appropriate time period – 180 or 300 days – set forth in 42 U.S.C. § 2000e-5(e)(1).”).
See also Martinez v. Potter, 347 F.3d 1208, 1210 (10th Cir. 2003) (“[U]nexhausted
claims involving discrete employment actions are no longer viable.”). Nevertheless,
Plaintiff appears to rely on the continuing violation doctrine theory for all five Counts
alleging violations of Title VII. It is therefore not clear from the Plaintiff’s complaint
that these claims are proper for purposes of exhaustion. She alleges that she has properly
exhausted her claims because her EEOC Charge included names, dates, conduct, and the
bases for her claims, and that she was not required to file a separate charge with each
alleged discriminatory act. The Court agrees that the Plaintiff may include more than one
claim in an EEOC charge, but she must nevertheless comply with the time limits related
to filing charges of discrete acts of discrimination. See Morgan, 536 U.S. at 122. Acts
occurring over nearly two years therefore could not all be included in one EEOC charge
alleging discrete acts of discrimination. Plaintiff in her Second Amended Complaint has
failed to distinguish between alleged acts within the 300-day window and those outside
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the window, and further failed to specify the acts forming the basis of the alleged discrete
acts of discrimination (as opposed to the generalized hostile work environment claim)
and therefore it is not clear that she has exhausted her administrative remedies as to
Counts II, III, IV, and V. Additionally, Plaintiff has not challenged Defendant’s assertion
that she failed to exhaust these claims, asserting only that the continuing violation
doctrine supports her claim of a hostile work environment. Campos v. Las Cruces
Nursing Center, 828 F. Supp. 2d 1256, 1271 (D.N.M. 2011) (“A plaintiff generally bears
the burden of demonstrating the court’s jurisdiction to hear his or her claims.”) (citing
Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 104 (1998)).
Moreover, a complaint must contain “a short and plain statement of the claim
showing that the pleader is entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). Detailed factual
allegations are not required, but the statement of the claim under Rule 8(a)(2) must be
“more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556
U.S. at 678 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), citing
Papasan v. Allain, 478 U.S. 265, 286 (1986)). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to state a claim to relief
that is plausible on its face. 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 (quoting Twombly, 550 U.S. at
555, 556, 557, 570). “While legal conclusions can provide the framework of a complaint,
they must be supported by factual allegations.” Id. at 679. Plaintiff filed her Amended
Complaint on May 19, 2014. See Docket No. 8. In response, all Defendants moved to
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dismiss her Amended Complaint. See Docket Nos. 13, 53-58, 69. While those motions
were pending, Plaintiff filed an opposed Motion to Amend her Complaint. Docket No.
74. The Court then granted all pending Motions to Dismiss, directing Plaintiff to file a
Second Amended Complaint in compliance with Ashcroft v. Iqbal, 556 US. 662 (2009)
within fourteen days. The Minute Order stated, “[f]urthermore, the Plaintiff’s Motion to
Amend Complaint (Docket No. 74) is hereby GRANTED to the extent that the Plaintiff
may add the currently proposed Count VIII to any second amended complaint filed
herein.” Docket No. 78. Plaintiff then filed a substantially similar Second Amended
Complaint, with the addition of Count VIII.5 While the Plaintiff has sufficiently stated a
plausible claim for relief as to Count I with the provision of the EEOC charge and the
assertion of the continuing violation doctrine, she has otherwise failed to comply with
this Court’s previous order to file a Second Amended Complaint in compliance with
Iqbal. Accordingly, the Court finds that Plaintiff’s Counts II, III, IV, and V as to
Defendant ODOC should be dismissed without prejudice under Fed. R. Civ. P.
12(b)(1) & (6).
B. Counts VI and VIII: 42 U.S. § 1983
Equal Protection.

First, the Court notes that Plaintiff has stated Count VI is a

“Violation of 42 U.S.C. § 1983” and Count VIII is a conspiracy to violate Section 1983.6

5

The differences are outlined by Defendant ODOC in its renewed Motion to Dismiss, and the
Court again declines to repeat them here save to note that there is little difference between them.
See Docket No. 86, pp. 4-5.
6
“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any
State . . . subjects, or causes to be subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured

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See Docket No. 79, pp. 18, 20. “Section 1983 creates only the right of action; it does not
create any substantive rights; substantive rights must come from the Constitution or
federal statute.” Kvech v. New Mexico Dept. of Public Safety, 987 F. Supp. 2d 1162,
1186 (D.N.M. 2013) (citing Spielman v. Hildebrand, 873 F.2d 1377, 1386 (10th Cir.
1989)). Taking each claim under §1983 in turn, the Court thus construes Count VI as an
allegation that Defendants violated her Equal Protection rights under 42 U.S.C. § 1983,
because she has alleged that each of the individual Defendants was acting under color of
state law (Docket No. 79, p. 15, ¶ 45), and that they violated her federally protected right
of Equal Protection under the law as guaranteed by the Fourteenth Amendment (Docket
No. 79, pp. 18-20, ¶¶ 59-60, 63-65). See Kvech, 987 F. Supp. 2d at 1186 (“To state a
claim upon which relief can be granted under § 1983, a plaintiff must alleged: (i) a
deprivation of a federal right; and (ii) that the person who deprived the plaintiff of that
right acted under color of state law.”) (citing West v. Atkins, 487 U.S. 42, 48 (1988)).
Specifically in Count VI, the Plaintiff alleges that the individual Defendants violated
these rights “as persons responsible at the Facility for administering and maintaining
discipline, . . . by (i) approving of the intentional and hostile work environment at the
Facility by failing to remedy Stewart’s complaints, in violation of her rights under the
Equal Protection Clause of the Fourteenth Amendment” and “(ii) engaging in disparate
treatment of male and female employees with regard to discipline.” Docket No. 79, pp.
18-19, ¶ 60. The Court further notes that “[i]n cases involving an equal-protection

by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity,
or other proper proceeding for redress[.]” 42 U.S.C. § 1983.

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violation based on sexual harassment, we have not required the plaintiff to show she was
treated differently from a similarly situated individual. It is enough that the plaintiff
presents sufficient evidence that the defendant discriminated against her because of her
sex, thereby depriving her of the right to equal protection of the laws.” Eisenhour v.
Weber County, 744 F.3d 1220, 1235 (10th Cir. 2014). In response to these claims, the
individual Defendants have raised the alternative defenses of the statute of limitations and
qualified immunity, and the Court will address each in turn.
Statute of Limitations. “The statute of limitations is drawn from the personalinjury statute of the state in which the federal district court sits.”

Mondragon v.

Thompson, 519 F.3d 1078, 1082 (10th Cir. 2008) (citing Wilson v. Garcia, 471 U.S. 261,
269 (1985)). The limitations period for personal injury actions under Oklahoma law is
two years, see Okla. Stat. tit. 12, § 95(A)(3), making Plaintiff’s § 1983 claims subject to
the same two-year statute of limitations. “Federal law, however, determines the date on
which the claim accrues and the limitations period starts to run.” Mondragon, 519 F.3d
at 1082 (citing Wallace v. Kato, 549 U.S. 384, 388 (2007)). “Claims under 42 U.S.C.
§ 1983 assert a violation of a federal right. Such claims accrue when a plaintiff knows or
should know his rights have been violated.

A plaintiff ‘need not have conclusive

evidence of the cause of an injury in order to trigger the statute of limitations.’” Perry v.
Geo Group, Inc., 2009 WL 3698473, at *7 (W.D. Okla. Nov. 4, 2009) (quoting
Alexander v. Oklahoma, 382 F.3d 1206, 1216 (10th Cir. 2004)). A civil rights action
accrues “when facts that would support a cause of action are or should be apparent.”
Fratus v. DeLand, 49 F.3d 673, 675 (10th Cir. 1995) (quotation omitted).
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Here, claims under Section 1983 accruing before August 28, 2011 are barred by
the applicable two-year limitations period because Plaintiff filed her original state court
Petition on August 28, 2013. See Docket No. 3, Ex. 1. The Plaintiff nevertheless
contends that the “continuing violation doctrine” applies here. Because the Tenth Circuit
has not definitively ruled on whether the continuing violation doctrine applies to § 1983
claims, the Court acts as others have and assumes without deciding that it does apply.
See, e. g., Loard v. Sorenson, 561 Fed. Appx. 703, 706 (10th Cir. 2014) (“Assuming,
without deciding, that the continuing violation doctrine applies to § 1983 claims . . .”);
Perry v. Geo Group, Inc., 2009 WL 3698473, at *8. But even under the continuing
violation doctrine, at least one of the alleged wrongful acts must have occurred within the
statutory period. See McCormick v. Farrar, 147 Fed. Appx. 716, 720 (10th Cir. 2005)
(citing Furr v. AT&T Technologies, Inc., 824 F.2d 1537, 1543 (10th Cir. 1987), and
Morgan, 536 U.S. at 117). Accordingly, Plaintiff’s § 1983 claims against Defendants
Collins and McGuire are hereby dismissed because all of Plaintiff’s allegations as to
these two defendants occurred prior to August 28, 2011.7
Qualified Immunity. As to the remaining nine individual Defendants, each asserts
that they are entitled to qualified immunity for the Equal Protection claims under § 1983.
7

The Court notes that the Plaintiff’s allegations against Defendants Martin and Murry likewise
precede August 28, 2011, but that these individual Defendants have not raised this argument as
an affirmative defense. There is some question in this Circuit as to whether the statute of
limitations is a jurisdictional issue, see, e. g., McCoy v. Damron, 9 Fed. Appx. 994, 996 (10th
Cir. 2001), but this Court holds to the Tenth Circuit’s general precedent under Murphy v. Klein
Tools, Inc., 935 F.2d 1127 (10th Cir. 1991), that “dismissal on limitations grounds is a judgment
on the merits.” Id. at 1128-1129. Accordingly, the Court proceeds to the arguments actually
raised by Defendants Martin and Murry. See United States v. Martinez, 518 F.3d 763, 767 n.2
(10th Cir. 2008) (argument not raised in opening brief was waived.)

-17-

“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) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)). “Qualified immunity is ‘an immunity from suit rather than a mere defense to
liability.’” Lewis v. Tripp, 604 F.3d 1221, 1225 (10th Cir. 2010) (quoting Mitchell v.
Forsyth, 472 U.S. 511, 526 (1985)). Once a defendant has asserted a qualified immunity
defense, “the plaintiff must meet a strict two-part test” to establish “‘(1) that the
defendant violated a constitutional or statutory right, and (2) that this right was clearly
established at the time of the defendant’s conduct[.]’” McBeth v. Himes, 598 F.3d 708,
716 (10th Cir. 2010) (quoting Bowling v. Rector, 584 F.3d 956, 964 (10th Cir. 2009)).
See also Brown v. Montoya, 662 F.3d 1152, 1164 (10th Cir. 2011) ) (same). “When
qualified immunity is asserted in the context of a motion to dismiss, the factual
allegations of the complaint are assumed to be true, and the court’s analysis generally
aligns with the analysis applied with determining the sufficiency of a claim.” Harper v
Woodward County Bd. Of County Commissioners, 2014 WL 7399367, at *8 (W.D. Okla.
Dec. 29, 2014) (citing Brown, 662 F.3d at 1162-1164 and Iqbal, 556 U.S. at 666, 673675, 677-684).
In light of the Supreme Court’s Pearson decision, this Court has “discretion in
deciding which of the two prongs of the qualified immunity analysis should be addressed
first in light of the circumstances in the particular case at hand.” Pearson, 555 U.S. at
236. “Whether a right is ‘clearly established’ is an objective test.” Brown, 662 F.3d at
-18-

1164.

“‘The relevant, dispositive inquiry in determining whether a right is clearly

established is whether it would be clear to a reasonable officer that his conduct was
unlawful in the situation he confronted.’” Stearns v. Clarkson, 615 F.3d 1278, 1282
(10th Cir. 2010) (quoting Saucier v. Katz, 533 U.S. 194, 202 (2001)). “‘In order for the
law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on
point, or the clearly established weight of authority from other courts must have found
the law to be as the plaintiff maintains.’” Stearns, 615 F.3d at 1282 (quoting Murrell v.
Sch. Dist. No. 1, Denver, Colo., 186 F.3d 1238, 1251 (10th Cir. 1999)). “In determining
whether a right is clearly established, the relevant inquiry is ‘whether it would be clear to
a [reasonable government official] that his conduct was unlawful in the situation he
confronted.’” C.G. v. City of Fort Lupton, 2014 WL 2597165, at *7 (D. Colo. June 10,
2014) (quoting Saucier, 533 U.S. at 202). In this Circuit, “[t]he right to be free from
sexual harassment is clearly established under the Equal Protection Clause of the
Fourteenth Amendment.” Kramer v. Wasatch County Sheriff’s Office, 743 F.3d 726, 758
(10th Cir. 2014) (citing Starrett v. Wadley, 876 F.2d 808, 814 (1989)). As an initial
matter, the Court finds that “it has been clearly established since our holding in 1989 in
Starrett [v. Wadley, 876 F.2d 808, 814 (10th Cir. 1989] that sexual harassment . . . can
violate the Fourteenth Amendment right to equal protection of the law. Moreover, it has
been clearly established since at least 1992 that a person who exercised the state’s
supervisory authority may be held liable for consciously acquiescing in sexually
harassing conduct by a non-state actor over whom the state actor has authority.” Murrell
v. School Dist. No. 1, Denver, Colo., 186 F.3d 1238, 1251 (10th Cir. 1999) [internal
-19-

citations omitted]. Since the Plaintiff has thus satisfied the second part of the test, the
Court turns to whether the Plaintiff has properly alleged each Defendant violation a
constitutional or statutory right.
“Section 1983 does not authorize liability under a theory of respondeat superior.”
Brown, 662 F.3d at 1164 (citing Monell v. Dep’t of Social Services, 436 U.S. 658, 691
(1978)). “Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff
must plead that each Government-official defendant, through the official’s own
individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676. The Tenth
Circuit has interpreted this to mean that Ҥ 1983 allows a plaintiff to impose liability
upon a defendant-supervisor who creates, promulgates, implements, or in some other way
possesses responsibility for the continued operation of a policy” causing the
constitutional harm. Dodds v. Richardson, 614 F.3d 1185, 1199 (10th Cir. 2010). This
takes the form of either personal liability through personal involvement, or supervisory
liability based on a violation of a policy. Brown, 662 F.3d at 1164-1165 (“Personal
liability under § 1983 must be based on . . . personal involvement, and supervisory
liability must be based on his Policy.”).

It thus becomes the Plaintiff’s burden to

demonstrate for purposes of supervisory liability that “(1) the defendant promulgated,
created, implemented or possessed responsibility for the continued 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, 614 F.3d at
1199-1200 (“Denying qualified immunity on the basis of such a showing complies with
Iqbal’s requirement that § 1983 liability only be imposed upon those defendants whose
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own individual actions cause a constitutional deprivation because it requires plaintiffs
prove each defendant took some act with the constitutionally applicable state of mind that
caused the alleged constitutional violation.”) (citation omitted).

“Therefore it is

particularly important in such circumstances that the complaint make clear exactly who is
alleged to have done what to whom, to provide each individual with fair notice as to the
basis of the claims against him or her, as distinguished from collective allegations against
the state.” Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008) (emphasis in
original).

As such, the task remaining before the Court is therefore whether each

defendant has violated the Plaintiff’s constitutional or statutory rights.
To establish personal involvement for supervisory liability it is insufficient
“merely to show [that the supervisor] was in charge of other state actors who actually
committed the violation.”

Dodds, 614 F.3d at 1195, (quotation omitted).

What is

required is that the “plaintiff must plead that each Government-official defendant,
through the official’s own individual actions, has violated the Constitution.” Schneider v.
City of Grand Junction Police Dept., 717 F.3d 760, 768 (10th Cir. 2013) (emphasis
added) (quoting Iqbal, 556 U.S. at 676). As to causation, the Plaintiff is required “to
show that the defendant’s alleged action(s) caused the constitutional violation” by
“set[ting] in motion a series of events that the defendant knew or reasonably should have
known would cause others to deprive the plaintiff of her constitutional rights.”
Schneider, 717 F.3d at 768 (alteration in original) (quoting Dodds, 614 F.3d at 1185,
1200). As to the third element, “[p]recisely what state of mind is required for individual
liability depends on the type of claim a plaintiff brings,” Schneider, 717 F.3d at 769, but
-21-

“‘can be no less than the mens rea required’ of the subordinates to commit the underlying
constitutional violation.” Estate of Booker v. Gomez, 745 F.3d 405, 435 (10th Cir. 2014)
(quoting Porro v. Barnes, 624 F.3d 1322, 1328 (10th Cir. 2010)). In Dodds, the Tenth
Circuit cited Iqbal for the proposition that the state of mind required to establish a
violation of Equal Protection guarantees is purposeful discrimination. 614 F.3d at 1198
(citing Iqbal, 556 U.S. at 676-677, 683). “In sum . . . plaintiffs here must establish that
each defendant – whether by direct participation or by virtue of a policy of which he
possesses supervisory responsibility – caused a violation of plaintiffs’ clearly established
constitutional rights, and that each defendant acted with the constitutionally requisite
state of mind.” Pahls v. Thomas, 718 F.3d 1210, 1228 (10th Cir. 2013) (emphasis
added). See also Brown, 662 F.3d at 1164-1165 (“Personal liability under § 1983 must
be based on Secretary Williams’s personal involvement, and supervisory liability must be
based on his Policy.”). Although it is unclear from the Second Amended Complaint that
the Plaintiff has stated an Equal Protection claim against any of the Defendants based on
personal liability (as opposed to supervisory liability), the Court addresses both personal
liability and supervisory liability for each Defendant out of an abundance of caution. The
Plaintiff’s allegations as to each of the remaining nine defendants are addressed in turn
below.
Edward Bell. The Plaintiff alleges that Defendant Bell, in his position as Chief of
Security, was present at a meeting with the Warden in which they threatened to transfer
her to another prison following an allegation that she had sexual contact with an inmate,
but they refused to provide her with details of when and whether she was actually
-22-

working on the day the acts were supposed to have taken place. Docket No. 79, p. 7, ¶
19. She further alleges that a co-worker told her that Chief of Security Bell asked him six
times whether he had slept with the Plaintiff, and that “Facility chain of command failed
to take appropriate action to instruct Facility employees to stop spreading rumors.” Id. at
p. 8, ¶ 22. She further alleges that in response to an Incident/Staff Report, Bell only told
one shift – rather than every shift – to stop spreading rumors about her, and that “Facility
chain of command failed to take appropriate action[.]” Id. at p. 9, ¶ 23. She alleges that
Bell told her he would handle rumors that the Plaintiff had sex with a Hepatitis-C positive
inmate, but “the issue was never discussed with [the employee] and no reprimand
occurred.” Id. at p. 9, ¶ 24. Finally, she alleges that despite prior approval and awareness
that she had a job interview scheduled, Bell and co-Defendants Hendrex and Carey would
not relieve her of her duties and caused her to be late and to have to wear her DOC
uniform. Id. at p. 12, ¶ 37. Defendant Bell asserts that the Plaintiff has failed to assert
facts to overcome his entitlement to qualified immunity, and Plaintiff argues that
Defendant’s actions demonstrate deliberate indifference to her ongoing harassment.
As to personal liability with regard to Defendant Bell, the Plaintiff’s allegations, in
sum, are that Defendant Bell: (i) threatened to transfer her based on an allegation that she
had an inappropriate relationship with an inmate but did not give her the specifics of the
allegation, (ii) asked another male officer six times whether that male officer had slept
with the Plaintiff, and (iii) made her late for a job interview despite prior approval. None
of these allegations indicate that Defendant Bell violated the Plaintiff’s Equal Protection
rights. Repeatedly questioning the other male officer about rumors he had engaged in
-23-

sexual activity with the plaintiff is certainly offensive, but it does not properly allege a
hostile work environment based on the Plaintiff’s sex because such actions were aimed at
both the female Plaintiff and another male officer. Huffman v. City of Prairie Village,
Kan., 980 F. Supp. 1192, 1197-1198 (D. Kan. 1997) (“Both the comments concerning
plaintiff dating Sgt. Nealey and the noises made by Sgt. Ozorkiewicz were directed at
both plaintiff and Sgt. Nealey. These comments were obviously designed to embarrass
both plaintiff and Sgt. Nealey. There is no evidence that the comments and noises were
aimed only at plaintiff. The court does not find that this conduct, although offensive, was
made because of plaintiff’s sex. . . . Accordingly, this conduct cannot be used to establish
a hostile work environment based on sex.”). Although “conduct that affects both sexes
may constitute sexual harassment if it disproportionately affects female staff[,]” Turnbull
v. Topeka State Hosp., 255 F.3d 1238, 1244 (10th Cir. 2001), the Plaintiff has provided
no statements to that effect in her Second Amended Complaint. Moreover, she has failed
in Count VI of her Second Amended Complaint to isolate Defendant Bell’s allegedly
unconstitutional acts, thereby failing to provide proper notice of the claims against him.
Robbins, 519 F.3d at 1250 (“Therefore it is particularly important in such circumstances
that the complaint make clear exactly who is alleged to have done what to whom, to
provide each individual with fair notice as to the basis of the claims against him or her, as
distinguished from collective allegations against the state. . . . Count I of Mr. Robbins’
and Ms. Gillum’s complaint fails to isolate the allegedly unconstitutional acts of each
defendant, and thereby does not provide adequate notice as to the nature of the claims
against each.”).
-24-

Indeed, even in her response to Defendant Bell’s Motion to Dismiss, she simply
recites the factual allegations as to Defendant Bell, then asserts those facts establish
deliberate indifference (an assertion not found in her Second Amended Complaint). See
Dodds, 614 F.3d at 1191 (“Once a defendant asserts qualified immunity, the plaintiff
bears the burden of satisfying [the] strict two-part test.”) (quoting McBeth, 598 F.3d at
716, quoting Bowling, 584 F.3d at 964).
As to supervisory liability, the Plaintiff has failed to allege that Defendant Bell
was responsible for a policy that caused her alleged constitutional harm, and further
failed to plead that he acted with any particular state of mind, much less the state of mind
sufficient to establish a constitutional deprivation. See Pahls, 718 F.3d at 1228. See also
Brown v. Glanz, 2013 WL 6909959, at *8 (N.D. Okla. Dec. 31, 2013) (slip op.) (“[S]he
has not identified what those practices and policies are, what defendant did that
constituted or authorized discrimination, harassment or hostility, or how any such actions
impacted her.”); Nelson v. Glanz, 2011 WL 3626769, at *3 (N.D. Okla. Aug. 17, 2011)
(“Plaintiff claims that Glanz was aware of complaints of discrimination and failed to take
action, but this is not sufficient to support an inference that Glanz purposefully and
intentionally engaged in racial discrimination.”). Accordingly, the Plaintiff has failed
to allege a claim that would overcome Defendant Bell’s defense of qualified
immunity, so the Plaintiff’s claims against Defendant Bell must therefore be
dismissed for failure to state a claim upon which relief can be granted pursuant to
Fed. R. Civ. P. 12(b)(6).

-25-

Phillip Carey. The Plaintiff alleges that she filed a report in which she requested
to file criminal charges against an inmate who was spreading false rumors that the inmate
was having sexual intercourse with the Plaintiff, and that in his position as Chief of
Security, Carey told her he would take care of it informally, which she did not want
because she wanted to file formal charges.

She then states that “Facility chain of

command failed to take any corrective actions[.]” Docket No. 79, pp. 10-11, ¶ 31.
Additionally, she alleges that Defendant Carey, along with Defendants Bell and Hendrex,
would not relieve her of her duties on time and caused her to be late for a job interview.
Docket No. 79, p. 12, ¶ 37. She further alleges that Carey, along with co-Defendant
Richardson, denied her the right to leave work when she contracted poison ivy and
needed treatment, and that same day told her he could teach her how to become an “ass
kisser” while looking her up and down. Docket No. 79, p. 13, ¶ 38. Plaintiff argues that
his actions constitute deliberate indifference because he was aware of but did not correct
the harassment against her, while Defendant Carey argues that none of these allegations
assert a constitutional violation. The Court agrees that there is no allegation that the
Defendant personally violated a constitutional or statutory right and that the Plaintiff has
failed to allege personal liability. As to supervisory liability, the Court finds that the
Plaintiff has failed to allege that Defendant Carey was responsible for a policy that
caused her alleged constitutional harm, and further failed to plead that he acted with any
particular state of mind, much less the state of mind sufficient to establish a constitutional
deprivation. See Pahls, 718 F.3d at 1228; Nelson v. Glanz, 2011 WL 3626769, at *3.
Accordingly, the Plaintiff has failed to allege a claim that would overcome
-26-

Defendant Carey’s defense of qualified immunity, so the Plaintiff’s claims against
Defendant Carey must therefore be dismissed for failure to state a claim upon which
relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6).
Terry Martin. The Plaintiff alleges that she reported to Defendant Martin (and
co-Defendant Murry) that she had been required to perform a pat down of male inmates
while another Sergeant looked on and gave the inmates “‘thumbs up’ and winked at
them,” and that “no corrective action was taken by Facility chain of command.” Docket
No. 79, p. 3, ¶ 9. She further alleges that another Sergeant had sent her “unwanted nude
photographs of himself and repeatedly made sexually inappropriate comments and
propositions,” which she reported to Defendant Martin, as well as co-Defendants Collins,
Murry, and Mullin, and that “no corrective action was taken by any member of the
Facility chain of command.”

Docket No. 79, p. 4, ¶ 12.

These facts contain no

allegations of personal liability, and thus the Court proceeds to the issue of supervisory
liability. Here, the Plaintiff has failed to allege that Defendant Martin was responsible for
a policy that caused her alleged constitutional harm, and further failed to plead that he
acted with any particular state of mind, much less the state of mind sufficient to establish
a constitutional deprivation. See Pahls, 718 F.3d at 1228; Nelson v. Glanz, 2011 WL
3626769, at *3. Accordingly, the Plaintiff has failed to allege a claim that would
overcome Defendant Martin’s defense of qualified immunity, so the Plaintiff’s
claims against Defendant Martin must therefore be dismissed for failure to state a
claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6).

-27-

Michael Mullin.

The Plaintiff alleges that another Sergeant had sent her

“unwanted nude photographs of himself and repeatedly made sexually inappropriate
comments and propositions,” which she reported to Defendant Mullin, the Warden, as
well as co-Defendants Collins, Murry, and Martin, and that “no corrective action was
taken by any member of the Facility chain of command.” Docket No. 79, p. 4, ¶ 12.
Additionally, she alleges that Defendants Mullin and Murry became aware of rumors she
had engaged in unlawful, inappropriate contact and sexual relations with Facility inmates
and staff, and that she was required to answer as to a list of employees she was alleged to
have engaged in this conduct with. She alleges that Mullin “slammed an envelope down
on his desk, declared that he was disgusted with Stewart’s conduct and, in a threatening
tone, demanded that she tell the truth.” She alleges that Defendant Mullin threatened to
notify internal affairs and that she would see her name in newspapers.

Upon

investigation, “all parties advised that no one had had sexual relations with Stewart,” but
the rumors persisted and “[n]o corrective action was taken.” Docket No. 79, pp. 5-6, ¶
16. Additionally, Warden Mullin, along with Defendant Bell, threatened to transfer her
to a women’s prison following a false allegation that she had sex with an inmate but
refused to provide her with details of when and whether she was actually working on the
day the acts were supposed to have taken place. Docket No. 79, ¶ 19. Following the
Internal Affairs investigation, she repeatedly requested status updates and a complete
report. She was told in December 2011 the investigation had been completed, but that
she would not be assigned to her normal post until paperwork had been approved.
Plaintiff alleges that Warden Mullen never provided her with a complete set of the
-28-

reports, only transferred one inmate and one officer to another facility, and that “Facility
chain of command failed to take any other corrective actions” or issue any other
reprimands. On January 20, 2012, Warden Mullin allowed her to return to duty on the
interior of the prison, and she was absolved of wrongdoing by internal affairs on March
26, 2012. She nevertheless alleges that “Facility chain of command failed to take any
corrective actions to deal with the harassment and false accusations.” Docket No. 79, pp.
9-10, ¶¶ 25-27, 29-30.
The Plaintiff asserts that Defendant Mullin’s failure to take corrective action
demonstrated deliberate indifference, and Defendant Mullin asserts that his actions do not
establish a constitutional violation.

These facts contain no allegations of personal

liability, and thus the Court proceeds to the issue of supervisory liability. In sum, the
facts alleged are that when she reported harassment, Defendant Mullin did nothing, but
that when rumors arose that she engaged in inappropriate conduct, Defendant Mullin
investigated the rumors against her and did nothing to stop these rumors even when they
were proven false. Here, the Court notes that Defendant Mullin’s position of Warden
likely make him the chief policy-maker at the Facility, as well as Plaintiff’s repeated
statements that “Facility chain of command failed to take corrective action.” Moody v.
Oklahoma Dept. of Corrections, 879 F. Supp. 2d 1275, 1287 (N.D. Okla. 2012) (“[T]his
evidence creates disputed questions of fact as to whether Defendant Province, the chief
policy-maker at the facility, possessed the ultimate responsibility for a de facto custom of
inaction with regard to sexual harassment allegations, and whether that custom directly
resulted in a deprivation of Plaintiff’s constitutional rights.”). Nevertheless, the requisite
-29-

state of mind to establish supervisory liability is lacking on the face of the Second
Amended Complaint, see Dodds, 614 F.3d at 1198 (“Ashcroft and Mueller’s alleged
deliberate indifference to or knowledge and acquiescence in their subordinates’
unconstitutional conduct or discriminatory animus, alone, did not amount to the state of
mind required to establish Ashcroft and Mueller violated equal protection guarantees –
purposeful discrimination – and the Court dismissed Iqbal’s claims against them.”)
(citing Iqbal, 556 U.S. at 677-678, 682-683), as well as any reference to a policy at the
facility for which the Warden was responsible. Accordingly, the Plaintiff has failed to
allege a claim that would overcome Defendant Mullin’s defense of qualified
immunity, so the Plaintiff’s claims against Defendant Mullin must therefore be
dismissed for failure to state a claim upon which relief can be granted pursuant to
Fed. R. Civ. P. 12(b)(6).
Michael Murry. The Plaintiff alleges that she reported to Defendant Murry (and
co-Defendant Martin) that she had been required to perform a pat down of male inmates
while another Sergeant looked on and gave the inmates “‘thumbs up’ and winked at
them,” and that “no corrective action was taken by Facility chain of command.” Docket
No. 79, p. 3, ¶ 9. She further alleges that she provided Murry with documentation of
sexual harassment from another Lieutenant at the Facility, and “[d]espite receiving
documentation, the Facility chain of command took no corrective action[.]” Docket No.
79, pp. 3-4, ¶ 10. She further alleges that another Sergeant had sent her “unwanted nude
photographs of himself and repeatedly made sexually inappropriate comments and
propositions,” which she reported to Defendant Murry, as well as co-Defendants Collins,
-30-

Martin, and Mullin, and that “no corrective action was taken by any member of the
Facility chain of command.”

Docket No. 79, p. 4, ¶ 12.

She alleges that Murry

confronted her with false allegations of sexual misconduct which she disproved, but that
the rumors persisted and “no corrective action was taken.” Docket No. 79, p. 5, ¶ 15.
Additionally, she alleges that Defendants Mullin and Murry became aware of rumors she
had engaged in unlawful, inappropriate contact and sexual relations with Facility inmates
and staff, and that she was required to answer as to a list of employees she was alleged to
have engaged in this conduct with. She alleges that Defendant Murry investigated the
allegations and “all parties advised that no one had had sexual relations with Stewart,”
but that the rumors persisted and “[n]o corrective action was taken.” Docket No. 79,
pp. 5-6, ¶ 16. Plaintiff further alleges that when she reported she had been fondled by a
fellow employee during a training pat down, Defendant Murry told her “she needed to get
tougher skin.” Docket No. 79, p. 7, ¶ 18. Plaintiff argues in her Response to Defendant
Murry’s Motion to Dismiss that Defendant Murry did nothing to deal with the hostile
work environment. None of these allegations, however, indicate that Defendant Murry
himself committed a constitutional violation. Most of the allegations are that she made
reports, and in one instance, Defendant Murry himself investigated the allegations and
determined they were unfounded. As such, the Plaintiff has not alleged personal liability.
As to supervisory liability, the Plaintiff has failed to allege that Defendant Murry was
responsible for a policy that caused her alleged constitutional harm, and further failed to
plead that he acted with any particular state of mind, much less the state of mind
sufficient to establish a constitutional deprivation. See Pahls, 718 F.3d at 1228; Nelson v.
-31-

Glanz, 2011 WL 3626769, at *3. Accordingly, the Plaintiff has failed to allege a claim
that would overcome Defendant Murry’s defense of qualified immunity, so the
Plaintiff’s claims against Defendant Murry must therefore be dismissed for failure
to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P.
12(b)(6).
Peter Richardson. Plaintiff alleges that Lieutenant Richardson took no action
when he ordered a simulated pat down as part of a training exercise and observed another
Sergeant bounce and fondle Plaintiff’s breast during the simulation and in front of five
other officers. Docket No. 79, p. 7, ¶ 18. She states that she and two others documented
the incident in reports, but that Lieutenant Richardson witnessed it and took no action.
Id. She further alleges that Richardson, along with Defendant Carey, denied her the right
to leave work to seek medical treatment for poison ivy. Docket No. 79, p. 13, ¶ 38.
Plaintiff has alleged in her Second Amended Complaint that the Defendant (i) led a
training exercise, and (ii) refused to let her leave work early. She argues that the Court is
to infer that the Defendant was acting in retaliation and demonstrating discrimination
when he refused to let her leave early, but those allegations are not before the Court.
None of these facts allege that Defendant Richardson personally participated in alleged
sexual harassment; thus the question becomes whether the Plaintiff has sufficiently
alleged a claim of liability in his supervisory capacity.

Although Lieutenant

Richardson’s failure to intervene in alleged sexual harassment by another employee may
have been sufficient to establish the personal involvement prong prior to Iqbal, the
Supreme Court in Iqbal “articulated a stricter liability standard for this first element of
-32-

personal involvement” such that “a plaintiff must plead that each Government-official
defendant, through the official’s own individual actions, has violated the Constitution.”
Schneider, 717 F.3d at 768 (citing Iqbal, 556 U.S. at 676). Furthermore, she cites to no
policy for which Lieutenant Richardson was responsible, and does not allege Lieutenant
Richardson acted with any particular state of mind, much less the state of mind sufficient
to establish a constitutional deprivation. See Pahls, 718 F.3d at 1228. See also Onodera
v. Dowis, 2011 WL 3666748, at *7 n.2 (D. Colo. June 6. 2011) (“The Courts of Appeal
have not provided clear guidance regarding precisely what a plaintiff must show to
demonstrate more than mere acquiescence by the defendant.

But Iqbal and Serna

indicate that the defendant’s state of mind is the linchpin of the analysis. In Iqbal, the
Supreme Court suggested that a defendant who acquiesces in a constitutional violation by
her subordinates is personally involved in the violation only if her acquiescence is
motivated by a ‘purpose’ to allow or further the violation. In Serna, the court of Appeals
for the Tenth Circuit suggested that a defendant supervisor who acquiesces in a
constitutional violation is personally involved in that violation only if she shares the same
‘state of mind’ with her subordinates who actually commit the violation.”) (citing Iqbal,
556 U.S. at 677, and Serna v. Colorado Dept. of Corrections, 455 F.3d 1146, 1151 (10th
Cir. 2006)).

Accordingly, the Plaintiff has failed to allege a claim that would

overcome Defendant Richardson’s defense of qualified immunity, so the Plaintiff’s
claims against Defendant Richardson must therefore be dismissed for failure to
state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6).

-33-

Casey Bennefield. Plaintiff alleges that when she made Lieutenant Bennefield
aware of an inappropriate comment made about her, he advised her that he would talk to
the person who made the comment, and Plaintiff later received a call from Chief of
Security Bell (a co-Defendant) who informed her he had taken care of the situation.
Docket No. 79, p. 9, ¶ 24.

She further alleges that even after an Internal Affairs

investigation was completed, Bennefield continued to treat her as though she were under
investigation and refused to assign her positions “inside the fence,” then “verbally
assaulted” her and told her she was not allowed inside the fence when she went inside the
fence to use the restroom. Docket No. 79, p. 11, ¶ 32. She also alleges that she
repeatedly reported sexual harassment to Bennefield and asked that she not have to work
with the person harassing her, “but they ignored her pleas.

The Facility chain of

command failed to take any corrective action to deal with the relentless harassment and
failed to reprimand [Bennefield].”

Docket No. 79, pp. 13-14, ¶ 40.

Defendant

Bennefield asserts that under these facts, he actually remedied the inappropriate
comments discussed in ¶ 24, that a direct order from a supervisor to exit an area in which
she is not allowed is not sexual harassment, and that the Plaintiff failed to allege personal
participation of any sexual harassment. Plaintiff merely asserts in her response that his
actions contributed to the continuing hostile work environment. The Court agrees that
the Plaintiff has not alleged personal liability for a constitutional violation in ¶¶ 24 and
32. As to the issue of supervisory liability that was arguably raised in ¶ 40, Plaintiff’s
allegation is that “Facility chain of command failed to take correction action,” including
reprimanding Defendant Bennefield. As such, she has failed to alleged that Defendant
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Bennefield was responsible for a policy that caused her alleged constitutional harm, and
further failed to plead that he acted with any particular state of mind, much less the state
of mind sufficient to establish a constitutional deprivation. See Pahls, 718 F.3d at 1228.
See also Brown v. Glanz, 2013 WL 6909959, at *8 (“[S]he has not identified what those
practices and policies are, what defendant did that constituted or authorized
discrimination, harassment or hostility, or how any such actions impacted her.”).
Accordingly, the Plaintiff has failed to allege a claim that would overcome
Defendant Bennefield’s defense of qualified immunity, so the Plaintiff’s claims
against Defendant Bennefield must therefore be dismissed for failure to state a claim
upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6).
Joseph Hendrex. Plaintiff alleges that she had to repeatedly ask Lieutenant
Hendrex to remove an inmate who asked her a question of a sexual nature. Docket No.
79, p. 11, ¶ 33. Additionally, she alleges that Hendrex, along with co-Defendants Carey
and Bell, refused to relieve her of her duties despite prior approval and caused her to be
late for a job interview. Docket No. 79, p. 12, ¶ 37. She alleges that she reported sexual
harassment to Lieutenant Hendrex, but he ignored her pleas and “Facility chain of
command failed to take any corrective action[]” and failed to reprimand him. Docket No.
79, pp. 13-14, ¶ 40. Finally, she alleges that Lieutenant Hendrex witnessed someone
make a sexually suggestive statement to her, and Hendrex stated that the person making
the comment was “lucky he could get away with talking to Stewart like that,” and failed
to report the incident and that no one reprimanded the individual. Docket No. 79, p. 14, ¶
41. Defendant Hendrex correctly asserts that none of these allegations established that he
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personally participated in sexual harassment, and the Plaintiff’s only response is that the
facts establish that Hendrex acted with deliberate indifference. The Court thus agrees
that these facts do not establish personal liability as to Defendant Hendrex. Additionally,
the Court finds that the Plaintiff has failed to allege supervisory liability as to Defendant
Hendrex. She has failed to alleged that Defendant Hendrex was responsible for a policy
that caused her alleged constitutional harm, and further failed to plead that he acted with
any particular state of mind, much less the state of mind sufficient to establish a
constitutional deprivation. See Pahls, 718 F.3d at 1228. Accordingly, the Plaintiff has
failed to allege a claim that would overcome Defendant Hendrex’s defense of
qualified immunity, so the Plaintiff’s claims against Defendant Hendrex must
therefore be dismissed for failure to state a claim upon which relief can be granted
pursuant to Fed. R. Civ. P. 12(b)(6).
Kelly West. Plaintiff alleges that Defendant West, a Case Manager at Jess Dunn
Correctional Facility, suggested he would help her with a job application if she would
perform sexual favors for him, and that if she were hired he would perform her training.
She did not get the job after she rebuffed him, despite having a degree in criminal justice
administration and more experience at the facility than the person who was ultimately
hired. Docket No. 79, pp. 11-12, ¶ 35. She also alleges that when she applied for another
position at Eddie Warrior Correctional Center, Defendant West “told [her] that if she
went down on him or better yet, slept with him he would make sure she got the position
because he knows people and was going to be on the interview panel.” Again, she

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alleges that she was not hired for the other job despite having a college degree and more
experience than the other applicants. Docket No. 79, pp. 12-13, ¶ 37.
Defendant West’s actions as alleged are clear allegations of sexual harassment,
and he admits as much in his Motion to Dismiss.

See Docket No. 80, pp. 18-19.

Accordingly, he is not entitled to a grant of qualified immunity under the facts alleged.
He nevertheless argues that the claims against him should be dismissed because he was
not acting under color of state law and that his actions are not clearly established by the
law. In the Tenth Circuit, however, “in certain instances co-employees may exercise de
facto authority over sexual harassment victims such that they act under color of law.”
David v. City and County of Denver, 101 F.3d 1344, 1354 (10th Cir. 1996). While it is
true that “plaintiffs’ allegations that ‘all defendants acted under color of state law’ are
insufficient to meet the heightened pleading standards imposed when a defendant raises
the qualified immunity defense[,]” Brasko v. City of Caney, Kan., 131 F.3d 151, 1997
WL 759093, at *4 (10th Cir. Dec. 9, 1997) (unpublished table opinion), here the
Plaintiff’s allegations in ¶ 37 are nudged across the line to sufficient for dismissal
purposes where she alleges that Defendant West attempted to exercise his hiring authority
over her in the course of his sexual harassment. Johnson v. Martin, 195 F.3d 1208, 1218
(10th Cir. 1999) (“[A] public official’s reasonable application of the prevailing law
would lead him to conclude that to abuse any one of a number of kinds of authority for
purpose of one’s own sexual gratification . . . would violate the Equal Protection
Clause.”). Accordingly, the allegations against Defendant West do not establish that
he would be entitled to qualified immunity on the Plainitff’s claim against him, and
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said claim therefore cannot be dismissed for failure to state a claim upon which
relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6).
In summary, the Plaintiff’s Equal Protection claims as to Defendants Bell, Carey,
Martin, Mullin, Murry, Richardson, Bennefield, and Hendrex are hereby dismissed for
failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6), but Plaintiff’s claims as to
Defendant West cannot be dismissed for failure to state a claim upon which relief can be
granted pursuant to Fed. R. Civ. P. 12(b)(6).
Civil Conspiracy Claim. As to Count VIII, the Court notes that “[a]llegations of
conspiracy may, indeed, form the basis of a § 1983 claim.” Tonkovich v. Kansas Bd. Of
Regents, 159 F.3d 504, 533 (10th Cir. 1998). “However, a plaintiff must allege specific
facts showing [1] an agreement and [2] concerted action amongst the defendants.” Id.
(citing Hunt v. Bennett, 17 F.3d 1263, 1266 (10th Cir. 1994)). Here, the Plaintiff has
alleged facts supporting neither of these elements. A mere allegation of a conspiracy is
insufficient under § 1983. Accordingly, the Court finds that the Plaintiff has failed to
state a claim with regard to Count VIII, civil conspiracy by approving of and failing to
remedy a hostile work environment, and engaging in disparate treatment of male and
female employees.
CONCLUSION
Accordingly, the Court finds that the Motion to Dismiss Defendants Collins,
McGuire, Richardson, Bennefield, Hendrex, and West [Docket No. 80] IS HEREBY
GRANTED IN PART as to Defendants Collins, McGuire, Richardson, Bennefield, and
Hendrex in their individual and official capacities, and Defendant West in his official
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capacity, and DENIED IN PART as to Defendant West in his individual capacity.
Defendant Edward Bell’s Motion to Dismiss Plaintiff’s Second Amended Complaint and
Brief in Support [Docket No. 81] IS HEREBY GRANTED. Defendant Phillip Carey’s
Motion to Dismiss Plaintiff’s Second Amended Complaint and Brief in Support [Docket
No. 82] IS HEREBY GRANTED.

Defendant Terry Martin’s Motion to Dismiss

Plaintiff’s Second Amended Complaint and Brief in Support [Docket No. 83] IS
HEREBY GRANTED.

Defendant Michael Mullins’s Motion to Dismiss Plaintiff’s

Second Amended Complaint and Brief in Support [Docket No. 84] IS HEREBY
GRANTED.

Defendant Michael Murry’s Motion to Dismiss Plaintiff’s Second

Amended Complaint and Brief in Support [Docket No. 85] IS HEREBY GRANTED.
Finally, Defendant Oklahoma Department of Corrections’ Motion to Dismiss Plaintiff’s
Second Amended Complaint and Brief in Support [Docket No. 86] IS HEREBY
GRANTED IN PART and DENIED IN PART. Finally, the Plaintiff Marcilla Nicole
Stewart’s Motion for the Court to Take Judicial Notice [Docket No. 89] is hereby
GRANTED.

IT IS SO ORDERED this 25th day of March, 2016.

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