Poore v. Glanz et al

Filing 24

OPINION AND ORDER by Judge Claire V Eagan ; denying 18 Motion to Dismiss; denying 18 Motion for More Definite Statement (Re: 2 Complaint ) (RGG, Chambers)

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA

LADONA A. POORE,

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Plaintiff,
v.
STANLEY GLANZ, Sheriff of Tulsa
County, in his individual and official
capacities, and SETH BOWERS,
Defendant.

Case No. 11-CV-0797-CVE-TLW

OPINION AND ORDER
Now before the Court is Defendant Bower’s [sic] Motion to Dismiss, and in the Alternative,
Motion for a More Definite Statement and Brief in Support (Dkt. # 18). Defendant Seth Bowers
argues that plaintiff has failed to describe the alleged rapes or sexual assaults with sufficient detail,
and that she has not stated a claim upon which relief can be granted. Dkt. # 18, at 3. Bowers also
argues that he did not receive notice of plaintiff’s claims as required by the Oklahoma Governmental
Tort Claims Act, OKLA. STAT. tit. 51, § 151 et seq. (GTCA), and that the Court lacks jurisdiction
over plaintiff’s claims against him. Plaintiff responds that she has alleged sufficient facts to state
a plausible claim under 42 U.S.C. § 1983, and that she is not required to comply with the notice
requirements of the GTCA to proceed with a § 1983 claim against Bowers.
I.
Ladona A. Poore was an inmate at the David L. Moss Criminal Justice Center from January
2010 to April 30, 2010, and she was 17 years old at the time of her incarceration. Dkt. # 2, at 4.
Bowers was a detention officer at the jail. Juvenile female inmates were housed in the north wing
of the medical unit, but this unit is not monitored by video surveillance. Id. Poore alleges that the

medical unit is known by jail personnel and inmates as a “blind spot” where illegal activity can
occur without detection. Id. She alleges that the north wing of the medical unit had one shower,
and the shower had an observation window. Id. at 4-5. She claims that Bowers would watch her
shower through the observation window, even though male detention officers were not permitted
in the shower area while female inmates were showering. Id. at 5. She also claims that Bowers
“preyed upon [her] vulnerability and repeatedly raped and sexually assaulted her,” and used a blind
spot in the video surveillance system to avoid detection. Id. Poore states that Bowers’ conduct was
witnessed by another inmate, and that Bowers “attempted sexual acts with this female juvenile
inmate and utilized his authority and resources bestowed upon him by the Tulsa County Sheriff’s
Department in an attempt to silence this witness and victim.” Id. at 6.
Plaintiff alleges that Bowers violated her right to be free from cruel and unusual punishment
under the Eighth and Fourteenth Amendments to the United States Constitution, and she seeks relief
under § 1983. She has not alleged any state law claims against Bowers. Plaintiff also alleges a §
1983 claim against Stanley Glanz, the Tulsa County Sheriff. Plaintiff requests actual damages in
excess of $75,000, punitive damages in excess of $75,000, prejudgment interest, and attorney fees.
Id. at 12. Glanz filed a motion to dismiss under Rule 12(b)(6), and the Court denied his motion.
Dkt. # 17. In particular, the Court found that plaintiff’s allegations of rape and sexual assault were
sufficient to satisfy the objective component of a deliberate indifference claim under the Eighth and
Fourteenth Amendments. Id. at 5.

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II.
In considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a court must determine
whether the claimant has stated a claim upon which relief may be granted. A motion to dismiss is
properly granted when a complaint provides no “more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007). A complaint must contain enough “facts to state a claim to relief that is plausible on its
face”and the factual allegations “must be enough to raise a right to relief above the speculative
level.” Id. (citations omitted). “Once a claim has been stated adequately, it may be supported by
showing any set of facts consistent with the allegations in the complaint.” Id. at 562. Although
decided within an antitrust context, Twombly “expounded the pleading standard for all civil
actions.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1953 (2009). For the purpose of making the dismissal
determination, a court must accept all the well-pleaded allegations of the complaint as true, even if
doubtful in fact, and must construe the allegations in the light most favorable to claimant. Twombly,
550 U.S. at 555; Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007); Moffett v.
Halliburton Energy Servs., Inc., 291 F.3d 1227, 1231 (10th Cir. 2002). However, a court need not
accept as true those allegations that are conclusory in nature. Erikson v. Pawnee County Bd. Of
County Comm’rs, 263 F.3d 1151, 1154-55 (10th Cir. 2001). “[C]onclusory allegations without
supporting factual averments are insufficient to state a claim upon which relief can be based.” Hall
v. Bellmon, 935 F.2d 1106, 1109-10 (10th Cir. 1991).

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III.
Bowers argues that plaintiff has not stated a claim upon which relief can be granted, and that
she failed to exhaust her administrative remedies before filing suit. Plaintiff responds that a rape
victim is not required to describe the alleged rapes or sexual assaults in detail, and Bowers’
argument “offends contemporary standards of decency.” Dkt. # 22, at 6. She also argues she has
not alleged any state law tort claims against Bowers, and that she is not required to exhaust her
remedies under the GTCA before filing a § 1983 claim against Bowers.
A.
Section 1983 provides a claim for relief against state actors for violation of a plaintiff’s
federal rights. Becker v. Kroll, 494 F.3d 904, 914 (10th Cir. 2007). To state a claim under § 1983,
a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of
the United States was violated and (2) that the alleged violation was committed by a person acting
under color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Anderson v. Suiters, 499 F.3d
1228, 1232-33 (10th Cir. 2007). Plaintiff alleges that Bowers violated her Eighth and Fourteenth
Amendment rights to be free from cruel and unusual punishment. The Eighth Amendment “imposes
a duty on prison officials to provide humane conditions of confinement, including adequate food,
clothing, shelter, sanitation, medical care, and reasonable safety from serious bodily harm.” Tafoya
v. Salazar, 516 F.3d 912, 916 (10th Cir. 2008). To establish an Eighth Amendment violation, a
plaintiff must show that a prison official acted with deliberate indifference.

“Deliberate

indifference” is defined as knowing and disregarding an excessive risk to an inmate’s health or
safety. Farmer v. Brennan, 511 U.S. 825, 827 (1994); Estelle v. Gamble, 429 U.S. 97, 104-05
(1976). In Wilson v. Seiter, 501 U.S. 294 (1991), the Supreme Court clarified that deliberate

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indifference has two components: (1) an objective requirement that the pain or deprivation be
sufficiently serious; and (2) a subjective requirement that the offending officials act with a
sufficiently culpable state of mind. Wilson, 501 U.S. at 298-99. As to the objective component, the
“prison official’s act or omission must result in the denial of ‘the minimal civilized measure of life’s
necessities . . . .’” Farmer, 511 U.S. at 834. “To prevail on the subjective component, the prisoner
must show that the defendant[] knew [she] faced a substantial risk of harm and disregarded that risk,
by failing to take reasonable measures to abate it.” Martinez v. Beggs, 563 F.3d 1082, 1089 (10th
Cir. 2009). However, “[t]he official’s knowledge of the risk need not be knowledge of a substantial
risk to a particular inmate, or knowledge of the particular manner in which injury might occur.”
Tafoya , 516 F.3d at 916 (10th Cir. 2008) (emphasis in original).
Bowers states that “Poore gives no details of the rape or sexual assault she allegedly endured,
beyond that it was repeated.” Id. at 3. He claims that plaintiff does not allege that she was the
victim of force, violence, or coercion, and she fails “to state any facts supporting that the ‘rape’ was
anything more than inappropriate consensual sex and offers no factual allegations that support
serious pain or deprivation.” Id. He suggests that the alleged sexual encounters between plaintiff
and Bowers were “welcome and voluntary,” and consensual sex does not constitute cruel and
unusual punishment as a matter of law. Id. at 3-4. There is nothing in the complaint to support
Bowers’ argument, and the Court will not infer that the alleged sexual encounters were
“inappropriate consensual sex.” The meaning of plaintiff’s allegations that she was repeatedly raped
and sexually assaulted is apparent, and it is clear that she is alleging that the sexual encounters with
Bowers were not consensual and possibly violent. Allegations of rape and sexual assault are
sufficiently serious to satisfy the objective component of a deliberate indifference claim. Tafoya,

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516 F.3d at 916; Hovater v. Robinson, 1 F.3d 1063, 1068 (10th Cir. 1993). Bowers argues that
plaintiff has not described the alleged rapes or sexual assaults with enough detail, but he cites no
authority suggesting that the victim of an alleged rape is required to describe the incident in detail
at the pleading stage. Dkt. # 18, at 2-4. Plaintiff has alleged the time frame of her incarceration, the
manner in which Bowers used a blind spot in the video surveillance system to avoid detection, and
that she was repeatedly raped and sexually assaulted, and she is not required to describe each rape
or sexual assault in excruciating detail. Plaintiff has adequately alleged that the harm she suffered
was sufficiently serious to satisfy the objective component of a deliberate indifference claim.
Plaintiff’s allegations are also sufficient to support an inference that Bowers acted intentionally and
with knowledge of the risk of harm to plaintiff, and she has adequately alleged the subjective
component of a deliberate indifference claim. Thus, Bowers’ request to dismiss plaintiff’s § 1983
claim against him should be denied.
Bowers claims that he is entitled to a more definite statement because plaintiff’s complaint
“largely consists of vague, conclusory allegations unencumbered by supporting facts that prevent
[him] from responding without risk of prejudice.” Dkt. # 18, at 9. Under Rule 12(e), a “party may
move for a more definite statement of a pleading to which a responsive pleading is allowed but
which is so vague or ambiguous that the party cannot reasonably prepare a response.” Bowers’
alternative request for a more definite statement is also denied. Plaintiff’s factual allegations are not
vague or ambiguous, Bowers is on notice of the factual basis for plaintiff’s § 1983 claim against
him, and he is not entitled to a more definite statement.

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B.
Bowers argues that plaintiff did not exhaust her administrative remedies before filing suit,
and plaintiff’s claims should be dismissed. Dkt. # 18, at 4-5. Bowers cites OKLA. STAT. tit. 57, §
566.4(B)(2), that provides:
No tort action or civil claim may be filed against any employee, agent, or servant of
the state, the Department of Corrections, private correctional company, or any county
jail or any city jail alleging acts related to the duties of the employee, agent or
servant, until all of the notice provisions of the Governmental Tort Claims Act have
been fully complied with by the claimant. This requirement shall apply to any claim
against an employee of the state, the Department of Corrections, or any county jail
or city jail in either their official or individual capacity, and to any claim against a
private correctional contractor and its employees for actions taken pursuant to or in
connection with a governmental contract.
However, the Tenth Circuit has expressly held that the GTCA does not immunize a defendant from
liability under § 1983. Beck v. City of Muskogee Police Dep’t, 195 F.3d 553, 560 n.5 (10th Cir.
1999); Tiemann v. Tul-Center, Inc., 18 F.3d 851, 853-54 (10th Cir. 1994); see also Howlett By and
Through Howlett v. Rose, 496 U.S. 356 (1990) (defenses to a § 1983 claim are created by federal
law and state statutes that purport to immunize state official from § 1983 liability are preempted).
Thus, plaintiff’s lack of compliance with the notice requirements of the GTCA is not a defense to
a § 1983 claim. The complaint is clear that plaintiff is not asserting a state law claim against
Bowers, and plaintiff was not required to provide pre-suit notice to Bowers before filing this case.
IT IS THEREFORE ORDERED that Defendant Bower’s [sic] Motion to Dismiss, and in
the Alternative, Motion for a More Definite Statement and Brief in Support (Dkt. # 18) is denied.
DATED this 30th day of April, 2012.

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