Revilla et al v. Glanz et al

Filing 142

OPINION AND ORDER by Judge John E Dowdell denying the Healthcare Defendants' Motion to Dismiss (Doc. 90). ; denying 90 Motion to Dismiss for Failure to State a Claim (Re: 4 Amended Complaint ) (SAS, Chambers)

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
BRIDGET NICOLE REVILLA, et al.,
Plaintiffs,
v.
STANLEY GLANZ, SHERIFF OF TULSA
COUNTY, et al.
Defendants.

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Case No. 13-CV-315-JED-TLW

OPINION AND ORDER
Before the Court is the motion to dismiss (Doc. 90) filed by defendants Correctional
Healthcare Companies, Inc., Correctional Healthcare Management of Oklahoma, Inc.,
Correctional Healthcare Management, Inc., Andrew Adusei, M.D., Phillip Washburn, M.D., and
Christina Rogers, R.N. (collectively the “Healthcare Defendants”). The Healthcare Defendants
request that the Court dismiss the claims of Alma McCaffrey, as Personal Representative of the
Estate of Gregory Brown, and Christine Wright, as Special Administrator of the Estate of Lisa
Salgado, as time-barred under Okla. Stat. tit. 12, § 95(A)(11), which provides a one-year statute
of limitations. There is no dispute that the McCaffrey and Wright claims were commenced more
than one year, but less than two years, after the deaths of those plaintiffs’ decedents. Thus, the
primary issue presented by the motion is whether the Court will apply to the McCaffrey and
Wright claims the one-year statute of limitations found in § 95(A)(11) or the two-year statute of
limitations generally applicable to claims brought under 42 U.S.C. § 1983 and Oklahoma
wrongful death claims.
As plaintiffs note, the Healthcare Defendants’ dismissal motion, which is expressly
premised on Fed. R. Civ. P. 12(b)(6) (see Doc. 90 at 2), was untimely. “A motion [under Rule

12(b)] must be made before pleading if a responsive pleading is allowed.” Fed. R. Civ. P. 12(b).
The plaintiffs’ Amended Complaint was filed May 31, 2013. The Healthcare Defendants filed
prior motions to dismiss the Amended Complaint (Doc. 21, 22), the Court denied those motions
(Doc. 43, 44) in March, 2014, and the Healthcare Defendants filed their Answers to the
Amended Complaint (Doc. 48, 49, 53, 54, 55, 56, and 59) in early April, 2014. They filed the
instant motion to dismiss on March 9, 2015, almost one year after filing their Answers. The
motion was therefore untimely pursuant to the plain terms of Rule 12(b).
Some courts will convert untimely Rule 12(b)(6) motions to dismiss to motions for
judgment on the pleadings under Rule 12(c). See, e.g., Estate of Stevens ex rel. Collins v. Bd. of
Comm’rs of Cty. of San Juan, 53 F. Supp. 3d 1368, 1371-72 (D.N.M. 2014). The Healthcare
Defendants have not requested that the Court convert their motion to one for judgment on the
pleadings under Rule 12(c). Even construing the motion to dismiss as a timely motion for
judgment on the pleadings under Rule 12(c), the Court finds that such motion should be denied
at this time, as the Healthcare Defendants have not provided a definitive legal argument for
application of the one-year statute of limitations in Okla. Stat. tit. 12, § 95(A)(11) to the claims
asserted by McCaffrey and Wright.
The Healthcare Defendants assert that they filed their second motion to dismiss after they
“became aware of recent changes in the common law holding that Okla. Stat. Ann. tit. 12, §
95(A)(11) applies to professional negligence actions involving claims which arose during a
period of incarceration, such as the instant action.” (Doc. 94 at 2) (citing Olive v. Bd. of Cty.
Comm’rs of Bryan Cty., No. CIV-12-JHP, 2014 WL 4264799 (E.D. Okla. Aug. 27, 2014)). But
the portions of Olive upon which the Healthcare Defendants rely to argue that the McCaffrey and
Wright claims are time-barred under the one year statute of limitations in § 95(A)(11) (see Doc.

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90 at 7) were included only in a magistrate’s findings and recommendation and were not adopted
by the district judge in that case. There, District Judge James H. Payne determined the case
based on the two year statute of limitations in § 95(3):
The Plaintiff's negligence claim is time-barred under the two-year statute of
limitations provided under § 95(3), so this Court does not reach a holding
regarding whether the special one-year statute of limitations provided under §
95(11) should apply to these claims.... [T]his Court finds and orders that the
Report and Recommendation entered by the United States Magistrate Judge on
June 2, 2014, is supported by the record and is AFFIRMED and ADOPTED by
this Court as its Findings and Order, except with respect to the United States
Magistrate Judge's findings regarding Okla. Stat. tit. 12, § 95(11) and that
statute's applicability to this case.
Olive, 2014 WL 4264799, at *1 (italics added). The Healthcare Defendants’ reliance upon Olive
is unavailing.1
In response to the dismissal motion, plaintiffs noted that the claims brought by
McCaffrey and Wright include wrongful death claims brought by personal representatives and
claims under 42 U.S.C. § 1983, both of which are governed by a two-year statute of limitations.
(See Doc. 93). Oklahoma’s wrongful death statute and the statute governing death claims against
health care providers licensed under the laws of Oklahoma provide that such claims must be
commenced within two years. See Okla. Stat. tit. 12, § 1053(A); Okla. Stat. tit. 76, § 18. Those
statutes are cited in plaintiffs’ response, but the Healthcare Defendants did not discuss those
statutes or address plaintiffs’ arguments in reply.
In addition, plaintiffs correctly noted in their response that claims pursued under 42
U.S.C. § 1983 have typically been determined to be governed by Oklahoma’s two-year general
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Indeed, the Healthcare Defendants misrepresented the un-adopted portion of the
magistrate’s findings and recommendation to be the “holding” of Olive. (See Doc. 90 at 7). A
plain reading of the Olive opinion reveals to the contrary, as the district judge’s decision applied
the two-year statute of limitations, expressly “[did] not reach a holding” regarding the
applicability of § 95(A)(11), and did not adopt the portion of the magistrate’s report and
recommendation regarding that statute.
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tort statute of limitations. Plaintiffs also cited other cases in which federal district courts in
Oklahoma have declined to apply the one-year limitations period of Okla. Stat. tit. 12, §
95(A)(11) to claims brought under § 1983. (Doc. 93 at 6-7). Again, the Healthcare Defendants
failed to respond to those arguments or attempt to distinguish the authorities cited. Rather, the
Healthcare Defendants merely urge that the Court apply the one-year state statute of limitations
based upon an alleged “[c]ommon sense interpretation of ... § 95(A)(11).” (Doc. 94 at 3-4). The
Court declines that invitation, because the Healthcare Defendants have not provided adequate
authorities or arguments and have failed to distinguish the plaintiffs’ legal authorities, which
generally require the application of a two-year limitations period.
Based on the foregoing, the Healthcare Defendants’ motion to dismiss / motion for
judgment on the pleadings (Doc. 90) is denied.
SO ORDERED this 29th day of October, 2015.

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