Smith v. Hedgecock et al

Filing 30

OPINION AND ORDER by District Judge James H. Payne: granting 7 Partial Motion to Dismiss; granting 21 Partial Motion to Dismiss (cjt, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
SAMANTHA SMITH, as
Guardian and Next Friend of
S.S., an Incapacitated Adult,
Plaintiff,
vs.
(1) B.J. HEDGECOCK, Sheriff
of Pushmataha County,
Oklahoma, in his Official
Capacity,
(2) THE BOARD OF COUNTY
COMMISSIONERS FOR THE
COUNTY OF PUSHMATAHA,
a political subdivision of the State
of Oklahoma, and
(3) TAMARA RASHAE
NICHOLS, an individual, in her
Individual Capacity,
Defendants.

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Case No. 18-CV-046-JHP

OPINION AND ORDER
Before the Court are (1) Defendants Hedgecock and Board of County
Commissioners’ Partial Motion to Dismiss (Dkt. 7) and (2) Defendant Tamara
Nichols’ Partial Motion to Dismiss (Dkt. 21). After consideration of the briefs,
and for the reasons stated below, both motions are GRANTED.

BACKGROUND
Plaintiff Samantha Smith (“Plaintiff”), as guardian and next friend of S.S.,
who is an incapacitated adult, filed this action to recover against the defendants for
alleged violations of the Fourth, Fifth, and Fourteenth Amendments to the United
States Constitution. Plaintiff also brings state law tort claims for negligence,
battery/issue preclusion, and violations of Oklahoma Constitution. The Petition
names as defendants (1) B.J. Hedgecock, Sheriff of Pushmataha County,
Oklahoma, in his official capacity (“Sheriff Hedgecock”), (2) the Board of County
Commissioners for the County of Pushmataha, a political subdivision of the State
of Oklahoma (“Board”), and (3) Tamara Rashae Nichols, in her individual capacity
(“Nichols”). (Dkt. 2-2).
According to the Petition, on or about February 17, 2016, a District Court
judge ordered S.S. remanded to the custody of the Pushmataha County Sheriff, and
S.S. was confined to the Pushmataha County Jail. (Dkt. 2-2, ¶¶ 11-12). Plaintiff
alleges Nichols, a Jailer/Deputy at the Pushmataha County Jail, repeatedly
provided S.S. with illegal drugs in exchange for sexual intercourse with S.S. (Id.
¶¶ 14, 20-22). S.S. allegedly reported the sexual intercourse to the County Jail
Administrator, who took no action to protect S.S. (Id. ¶ 20). Sheriff Hedgecock
and other County employees were allegedly aware that Nichols had a prior history
of sexual relations with County inmates. (Id. ¶¶ 16-17). Plaintiff alleges the
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defendants knew or should have known that S.S. was mentally ill and incapable of
consent to sexual relations with Nichols. (Id. ¶ 23). Nichols pleaded guilty to her
actions with S.S. on December 7, 2016. (Id. ¶ 15).
Plaintiff asserts four causes of action against the defendants:

(1)

negligence/respondeat superior against the Sheriff and Board in failing to protect
S.S. from the tortious conduct of their employees; (2) battery/issue preclusion
against Nichols for raping S.S., to which Nichols pleaded guilty in Pushmataha
County case number CF-2016-53; (3) relief under 42 U.S.C. § 1983 against all
defendants for violation of S.S.’s rights under the Fourth, Fifth and Fourteenth
Amendments to the United States Constitution; and (4) relief against all defendants
for violating S.S.’s rights under Article II § 30 of the Oklahoma Constitution to be
free from unreasonable searches and seizures, pursuant to Bosh v. Cherokee
County Governmental Building Authority, 305 P.3d 994 (Okla. 2013) (the “Bosh
claim”). (Id. ¶¶ 28-77).
Sheriff Hedgecock and the Board (together, the “County Defendants”) have
now jointly filed a Partial Motion to Dismiss, seeking dismissal of Plaintiff’s state
law claims against them pursuant to Federal Rule of Civil Procedure 12(b)(6) for
failure to state a claim upon which any relief can be granted as a matter of law.
(Dkt. 7).

Plaintiff has filed a Response in opposition (Dkt. 13), and Sheriff

Hedgecock and the Board have filed a Reply (Dkt. 19). Nichols has also filed a
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Partial Motion to Dismiss, seeking dismissal of Plaintiff’s Bosh claim against her
pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. 21). Plaintiff has filed
a Response in opposition (Dkt. 23), and Nichols has filed a Reply (Dkt. 25). Both
motions are fully briefed and ripe for review.
DISCUSSION
In considering a Rule 12(b)(6) motion, the court must accept all wellpleaded allegations of the complaint as true, and must construe them in the light
most favorable to the plaintiff. See Anderson v. Merrill Lynch Pierce Fenner &
Smith, Inc., 521 F.3d 1278, 1284 (10th Cir. 2008). To withstand a motion to
dismiss, a complaint must contain enough allegations of fact “to state a claim to
relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
570 (2007). The Tenth Circuit has stated that “plausibility” in this context refers
“to the scope of the allegations in the 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.’” Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at
569). The plaintiff bears the burden to frame “a complaint with enough factual
matter (taken as true) to suggest” that he or she is entitled to relief. Twombly, 550
U.S. at 556. “A pleading that offers ‘labels and conclusions’ or ‘a formulaic
recitation of the elements of a cause of action will not do.’ Nor does a complaint
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suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555,
557).
I.

Motion of the County Defendants
A.

Negligence Claim Against the Board

First, the County Defendants assert the Board is immune from suit for
Plaintiff’s state law claim for negligence/respondeat superior pursuant to the
Oklahoma Governmental Tort Claims Act (“OGTCA”), 51 Okl. St. §§ 151 et seq.1
The OGTCA is the exclusive state-law remedy by which an injured plaintiff may
recover against an Oklahoma governmental entity for its own torts and those of its
employees. 51 Okl. St. § 153(B); Fuller v. Odom, 741 P.2d 449, 451-53 (Okla.
1987). The OGTCA generally immunizes “the state, its political subdivisions, and
all of their employees acting within the scope of their employment” from liability
for torts. 51 Okl. St. § 152.1(A). This immunity is subject to a limited waiver for
the state and its political subdivisions, but “only to the extent and in the manner
provided” in the OGTCA. 51 Okl. St. § 152.1(B). The Board is a political
subdivision under the OGTCA.

51 Okl. St. § 152(11)(c); 19 Okl. St. § 4.

Therefore, the Board may be subject to tort liability in situations where private

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Plaintiff pleads her negligence claim against the County Defendants as two separate causes of
action—Negligence and OGTCA/Respondeat Superior. (Dkt. 2-2, at 5, 7). However, as the
County Defendants point out, these claims both raise the same cause of action. Therefore, the
Court will address both causes of action as a single negligence claim under the OGTCA.

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persons or entities would also be liable under state law.

Salazar v. City of

Oklahoma City, 976 P.2d 1056, 1065-66 (Okla. 1999).
The Board argues it is immune from liability for Plaintiff’s negligence claim
based upon OGTCA exemptions—specifically, exemptions found in §§ 155(4),
155(5), and 155(25). The Board further argues it cannot be held liable for Nichols’
alleged actions in this case, because she was acting outside the scope of her
employment.
1.

Immunity Under § 155(25)

The Court first addresses the exemption in § 155(25), which provides
immunity for political subdivisions for losses resulting from the “[p]rovision,
equipping, operation or maintenance of any prison, jail or correctional facility.” 51
Okl. St. § 155(25). This exemption provided in § 155(25) “is all inclusive for tort
claims.” Gibson v. Copeland, 13 P.3d 989, 992 (Okla. Ct. App. 2000) (citing
Medina v. State, 871 P.2d 1379 (Okla. 1993)). In Medina, the Oklahoma Supreme
Court explained this exemption “reveals an intent to withhold the waiver of
sovereign immunity for any loss or injury, whether to an inmate or other person,
resulting from the operational level acts required to furnish the services of a penal
institution,” including the “security of the facility; the employment of personnel”
and the “medical and health services or any other service provided for inmates or
other persons.” Medina, 871 P.2d at 1384 n.13 (discussing the scope of § 155(23),
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the predecessor statute to § 155(25)). See Redding v. State, 882 P.2d 61, 63 (Okla.
1994) (holding the “legislative intent of § 155(23) is to protect the state from
liability for loss resulting from any and all actions of officers and employees of a
penal institution.”).
In this case, Plaintiff’s negligence claim arises in the context of the alleged
rape of S.S. while he was in the custody of the Pushmataha County Jail. (See Dkt.
2-2, ¶¶ 1, 11-26). Therefore, § 155(25) clearly applies to this claim, and the Board
is immune from suit with respect to Plaintiff’s negligence claim.
In her Response, Plaintiff contends that § 155(25) does not protect the Board
from liability, relying on Nguyen v. State, 788 P.2d 962 (Okla. 1990). Nguyen
addressed whether the State was immune from liability for its decision to release a
mental patient, based on the “discretionary function” immunity of 51 Okl. St. §
155(5). Plaintiff argues Nguyen is more directly on point to this case than Medina
or Redding, because Medina and Redding dealt with errors in providing services,
as opposed to “exercise of judgment without regard for known facts and services.”
(Dkt. 13, at 5). The Court does not find Plaintiff’s argument persuasive, as Nguyen
addressed a different ground for immunity than that pertaining to jail services.
Plaintiff additionally cites to dissents from two Oklahoma Supreme Court
cases, which question whether the majority opinions in those cases read the
immunity afforded by § 155 in an overly broad manner. See Purvey v. State, 905
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P.2d 770, 772 (Okla. 1995) (Summers, J., dissenting); Schmidt v. Grady Cnty.,
Okla., 943 P.2d 595 (Okla. 1997 (Summers, V.C.J., dissenting). However, the
language in those dissents does not overcome the prevailing interpretation of §
155(25), as stated in Medina and Redding. The negligence claim in this case falls
squarely within the exception of § 155(25).
2.

Immunity Under § 155(5)

The Board further claims immunity based on § 155(5), to the extent
Plaintiff’s state law negligence claim is premised upon the hiring, retention or
supervision of employees. 51 Okl. St. § 155(5) provides complete tort immunity to
a political subdivision for losses resulting from “[p]erformance of or the failure to
exercise or perform any act or service which is in the discretion of the state or
political subdivision or its employees.”

It is settled law in Oklahoma that a

political subdivision’s “hiring, training, and supervising decisions are discretionary
and therefore a [political subdivision] may not be liable for damages resulting from
those decision.” Jackson v. Okla. City Public Schools, 333 P.3d 975, 979 (Okla.
Civ. App. 2014) (citing Houston v. Ind. Sch. Dis. No. 89 of Okla. Cnty., 949 F.
Supp. 2d 1104, 1109 (W.D. Okla. 2013)). Accordingly, the Board is immune from
liability on this claim as it pertains to hiring, retention, or supervision of
employees.

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In her Response, Plaintiff contends this defendant’s liability arises not from
the hiring of Nichols but from the operational level decisions made in
implementation of policy-level decision-making, which fall outside of § 155(5)
immunity. See Nguyen, 788 P.2d at 964-65 (noting the discretionary function
exemption of § 155(5) covers “initial policy level or planning decisions” but not
“operational level decisions made in the performance of policy.”).

However,

Plaintiff’s argument is at odds with the Petition, which specifically alleges the
defendants were negligent in hiring and retaining employees who were under
felony probation and who were known to have had prior sexual relations with
current and former inmates. (Dkt. 2-2, ¶¶ 34(a)-(d)). Despite these allegations in
the Petition, Plaintiff’s briefing suggests she no longer asserts any claim of
negligent hiring, retention, or supervision of employees. Even if she intends to
retain this claim, Plaintiff cites to no authority to indicate that hiring, retention, and
supervisory decisions are “operational” decisions rather than “policy” decisions.
In light of Jackson and Plaintiff’s apparent abandonment of such claims, any claim
of negligent hiring, retention, or supervision of employees is dismissed.
3.

Immunity Under § 155(4)

The Board further claims immunity based on 51 Okl. St. § 155(4), to the
extent Plaintiff’s negligence claim is premised upon the alleged failure to
implement procedures that would protect incarcerated persons. Section 155(4)
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provides tort immunity for losses resulting from “[a]doption or enforcement of or
failure to adopt or enforce a law, whether valid or invalid, including, but not
limited to, any statute, charter provision, ordinance, resolution, rule, regulation or
written policy.”

Plaintiff does not directly respond to the Board’s argument

regarding § 155(4) immunity, which suggests the argument is conceded.
Moreover, Plaintiff argues in her Response that the County Defendants are liable,
in part, because they failed in their duties to implement safety policies. (Dkt. 13, at
6).

Such a failure would fall squarely within the exemption of §155(4).

Accordingly, Plaintiff’s negligence claim based on the alleged failure to implement
safety policies is subject to dismissal.
4.

Respondeat Superior Liability

The Board contends Plaintiff’s negligence claim based on respondeat
superior liability is further barred, because the alleged conduct of employee
Nichols—rape and provision of illegal drugs to an inmate—was necessarily
conducted outside the scope of her employment. In her Response brief, Plaintiff
agrees with the Board that Nichols was acting outside the scope of her employment
“when she raped an incapacitated, incarcerated person under threat and duress.”
(Dkt. 13, at 4). However, Plaintiff does not concede this claim, arguing that her
claim does not depend on Nichols’ conduct.

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The Court agrees with the Board that respondeat superior liability is
unavailable in this case. Relief under the OGTCA against a political subdivision is
not available “for any act or omission of an employee acting outside the scope of
the employee’s employment. 51 Okl. St. § 153(A). “Scope of employment” is
defined in the OGTCA as “performance by an employee acting in good faith and
within the duties of the employee’s office or employment or of tasks lawfully
assigned by a competent authority . . . .” 51 Okl. St. § 152(12).
Here, Plaintiff alleges Nichols repeatedly raped S.S. and provided S.S. with
illegal drugs in exchange for sexual intercourse. (Dkt. 2-2, ¶¶ 14, 21-22, 60). The
Oklahoma Supreme Court has consistently refused to find that sexual assaults by
employees occurred within the scope of employment. See N.H. v. Presbyterian
Church (U.S.A.), 998 P.2d 592, 598-600 (Okla. 1999) (holding the sexual
molestation of parishioner by church officer was outside the scope of employment
as a matter of law); Schovanec v. Archdiocese of Okla. City, 188 P.3d 158, 161-62
(Okla. 2008) (explaining its prior holding in N.H. “was based upon the fact that no
reasonable person would conclude that predatory sexual conduct was a part of, and
in the furtherance of, the ecclesiastical organization’s business.”). Consequently,
the Board cannot be held liable for such claims arising from Nichols’ alleged
conduct.

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Plaintiff attempts to save this claim against the Board by arguing that this
defendant “had an independent duty to protect S.S. unrelated to the acts or
omissions of their employee.” (Dkt. 13, at 7-8).2 However, Plaintiff’s claim may
be actionable only in the context of a specific injury. Without the alleged actions
of Nichols, Plaintiff would not have suffered any injury.

Plaintiff does not

elaborate on this argument in her briefing, but the Court does not find it persuasive.
Plaintiff’s negligence claim is dismissed as to the Board.
B.

Negligence Claim Against Sheriff Hedgecock

The County Defendants further argue that Sheriff Hedgecock in his official
capacity is not a suable entity under the OGTCA. See 51 Okl. St. § 152(11)
(definition of “political subdivision” does not include a sheriff in his official
capacity). The Court agrees with these defendants that OGTCA claims may be
brought only against the state or a political subdivision, which does not include a
sheriff in his official capacity. See 51 Okl. St. § 153. Accordingly, Plaintiff’s
OGTCA claims may be properly presented only against the county, which is a
political subdivision. 51 Okl. St. § 152(11). State law requires OGTCA claims
such as this to name the county’s Board of County Commissioners as the

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In a footnote, Plaintiff supports this argument by citing to several decisions that address federal
constitutional claims brought by inmates: Tafoya v. Salazar, 516 F.3d 912 , 916 (10th Cir.
2008); Bell v. Wolfish, 441 U.S. 520 (1979); and Boddie v. Schneider, 105 F.3d 857 (2d Cir.
1997). However, the Board’s argument does not pertain to Plaintiff’s constitutional claim.
Accordingly, Plaintiff’s citation to these cases in support of her Oklahoma negligence claim is
inapt.

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defendant. 19 Okl. St. § 4. See Speight v. Presley, 203 P.3d 173, 179 (Okla. 2008)
(“Suit against a government officer in his or her official capacity is actually a suit
against the entity that the officer represents,” which “is improper under the
[O]GTCA.”) (citing Pellegrino v. State ex rel. Cameron University, 63 P.3d 535,
537 (Okla. 2003)).

Plaintiff does not respond to this argument.

Therefore,

dismissal of the OGTCA negligence claim against Sheriff Hedgecock in his
official capacity is appropriate for this additional reason.
C.

Bosh Claim

Finally, the County Defendants contend Plaintiff’s Bosh claim against them
is subject to dismissal as a matter of law. In Bosh, the Oklahoma Supreme Court
recognized a private right of action for excessive force against a pre-trial detainee
based on Article II § 30 of the Oklahoma Constitution, notwithstanding the
limitations of the OGTCA. The court in Bosh further held that governmental
entities may be held liable for such claims under a theory of respondeat superior,
where the employees are acting within the scope of their employment. 305 P.3d at
1004. The County Defendants argue Plaintiff’s Bosh claim fails, because Nichols’
alleged actions in raping S.S. and procuring him illegal drugs necessarily do not
fall within her scope of employment.

Plaintiff’s Response does not directly

address this argument, but instead she argues that Bosh stands for the policy “that
there is no immunity from clear constitutional rights violations.” (Dkt. 13, at 9).
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The Court agrees with the County Defendants that the Bosh claim is barred,
because Nichols’ alleged actions could not have occurred within the scope of her
employment. See Part I.A.4, above; Bates v. Bd. of Cnty. Comm’rs of Mayes Cnty.,
674 F. App’x, 830, 834-35 (10th Cir. 2017) (holding a detention officer who
allegedly sexually assaulted an inmate in his custody was not acting within the
scope of his employment for purposes of Bosh claim). The Court will not read
Bosh to apply beyond instances where the employee acted within the scope of
employment. For the reasons explained above in Part I.A.4, the Court finds the
County Defendants cannot be held liable for Nichols’ actions on a respondeat
superior theory.3
II.

Motion of Nichols
The Court next addresses the arguments raised by defendant Nichols in favor

of dismissal of Plaintiff’s Bosh claim against her. Nichols argues that Bosh claims
are limited to actions against political subdivisions and may not be extended to
individual officers. Because Nichols was an employee of the Pushmataha County
Detention Center, Nichols contends she cannot be held liable for a Bosh claim.
Plaintiff responds that this claim is viable against an individual, pointing to
language in Perry v. City of Norman, 341 P.3d 689 (Okla. 2014). Specifically,

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Plaintiff uses a significant portion of her Response brief to argue that she has alleged a
plausible claim for a violation of constitutional rights under § 1983. (Dkt. 13, 9-12). However,
the County Defendants do not challenge this claim in their Motion to Dismiss. Accordingly, the
Court will not further address Plaintiff’s arguments regarding the § 1983 claim, which remains
for resolution as to both of the County Defendants.

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Plaintiff points out that Perry described the questions answered in Bosh as
“concern[ing] the right of a detention center detainee to bring a cause of action for
excessive force against jailers for injuries sustained when the jailers attacked the
detainee.” Id. at 690-91 (emphasis added). Plaintiff also points out that the Perry
court noted Bosh was the progeny of Washington v. Barry, 55 P.3d 1036 (Okla.
2002), in which the court “recognized that a private constitutional excessive force
action may exist for prison inmates against prison officials.” Id. at 691 (emphasis
added). Plaintiff additionally points to the Perry court’s characterization of the
detainee’s argument in Bosh—that “the Okla. Const. art. 2, § 30 protects citizens
from being physically abused by the employees of state and local entities that
operate jails and correctional facilities, and such protection includes legal liability
for such conduct.” Id. (emphasis added). Plaintiff cites to no other authority in
support of her contention.
The Court does not find Plaintiff’s argument compelling. The Court agrees
with Nichols and declines to extend Bosh to cover individual officers. Addressing
the same issue, this Court has previously concluded:
the Bosh opinion only held that Oklahoma governmental entities can
be held liable for the use of excessive force by their employees in
violation of the Oklahoma Constitution under a theory of respondeat
superior, not individual actors. There are no grounds for so
expanding upon the Bosh decision where the Oklahoma Supreme
Court has not expressed support for any such expansive reading. See
Koch v. Juber, CIV-13-0750-HE, 2014 WL 2171753, at *3 (W.D.
Okla. May 23, 2014) (refusing to expand Bosh to provide a private
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right of action against individual employees under the Oklahoma
Constitution).
Lynch v. Bd. of Cnty. Comm’rs of Muskogee Cnty., Oklahoma, ex rel. Muskogee
Cnty. Sheriff’s Dep’t, 2018 WL 1417172, at *11 (Mar. 21, 2018) (emphasis in
original). This Court’s holding in Lynch is consistent with holdings of other courts
addressing this issue. See, e.g., Maher v. Oklahoma, 165 F. Supp. 3d 1089, 1093
n.3 (W.D. Okla. 2016) (“Plaintiff points to no legal authority that permits
a Bosh claim against an individual actor....”); Shed v. Oklahoma ex rel. Oklahoma
Dep’t of Human Servs., 2017 WL 1496039, at *3 (E.D. Okla. Apr. 25, 2017)
(“Bosh claims appear to be limited to actions against political subdivisions.”)
(citing Maher, 165 F. Supp. 3d at 1093 n.3). Plaintiff points to no contrary
authority, and her citation to favorable language in Perry is not compelling.4
Accordingly, Plaintiff’s Bosh claim against Nichols is subject to dismissal.
Because the Court concludes Nichols is not subject to individual liability
under Bosh, the Court will not address Nichols’ additional argument that Plaintiff’s
Bosh claim is time-barred. Plaintiff’s claims against Nichols for violation of civil
rights under 42 U.S.C. § 1983 and for battery/issue preclusion remain for
resolution.

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The Court notes that Perry concerned Bosh liability against a municipality, not an individual, as
the claimant in Perry did not name any of the individual officers involved as defendants. 341
P.3d at 690. Nothing in Perry suggests an intent to expand Bosh liability to cover individual
officers.

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CONCLUSION
For the reasons detailed above, Defendants Hedgecock and Board of County
Commissioners’ Partial Motion to Dismiss (Dkt. 7) and Defendant Tamara
Nichols’ Partial Motion to Dismiss (Dkt. 21) are GRANTED.
IT IS SO ORDERED this 19th day of July, 2018.

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