Estate of Tamico Norton, The v. Avalon Correctional Services, Inc. et al
Filing
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OPINION AND ORDER by Judge John E Dowdell Defendants' Motion to Dismiss (Doc. 5) is granted in part and denied in part. Plaintiff's state law claims are dismissed for lack of subject matter jurisdiction. Plaintiff shall file within 2 1 days of the date of this Opinion and Order an amended complaint which cures the deficiency noted with respect to its § 1983 claims against Avalon and TRC. If plaintiff fails to do so, those claims will be dismissed as to Avalon and TRC. ; setting/resetting deadline(s)/hearing(s): ( Miscellaneous Deadline set for 10/23/2014); granting in part and denying in part 5 Motion to Dismiss (Re: State Court Petition/Complaint ) (SAS, Chambers)
UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
THE ESTATE OF TAMICO NORTON,
)
)
Plaintiff,
)
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v.
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1) AVALON CORRECTIONAL
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SERVICES, INC.,
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2) TURLEY RESIDENTIAL CENTER, L.L.C., )
and
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3) ALICE JOHNSON, et al.,
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)
Defendants.
)
Case No. 14-CV-106-JED-TLW
OPINION AND ORDER
The Court has for its consideration defendants’ Motion to Dismiss (Doc. 5). Specifically,
Avalon Correctional Services, Inc. (“Avalon”), Turley Residential Center, L.L.C. (“Turley”), and
Alice Johnson, seek dismissal of plaintiff’s state law constitutional claims against them for
failure to provide pre-suit notice in accordance with the Oklahoma Governmental Tort Claims
Act (“OGTCA”). Avalon and Turley also ask that her federal civil rights claims against them be
dismissed for failure to state a claim.
BACKGROUND
Plaintiff, the Estate of Tamico Norton, brings this lawsuit as a result of Tamico Norton’s
death while residing as an inmate at Turley. While her petition does not allege any dates
associated with the incidents at issue, it is clear that she came to reside at Turley, a halfway
house, at some time following a stint in the custody of the Oklahoma Department of Corrections.
At some point, she fell in a bathroom and screamed, which resulted in the attention of Turley’s
staff and its administrator, defendant Johnson. Johnson, who plaintiff describes as an
authoritarian “Nurse Ratchet” [sic] type figure, and her staff evidently believed that Norton’s fall
was the consequence of illicit drug use—specifically, K2, a synthetic drug known to cause
bizarre behavior and serious medical problems.1 (Doc. 2 at 7).
As a result of the suspicion of drug use, Norton was placed in the “hot seat.” The “hot
seat” is a chair in the Turley facility where inmates are placed while awaiting the results of a
drug test. The hot seat, which is apparently in clear view of other inmates, is essentially intended
to create a spectacle of the person suspected of drug use as a deterrent to other inmates. The
petition states that Norton was placed in the hot seat from noon until after 5:00 p.m. but was
never tested for drug use or given medical attention. At some point within this timeframe, her
condition began to deteriorate and Norton grasped at her throat and chest and sunk lower into the
seat. Other inmates urged staff to obtain medical attention for Norton, but their concerns were
dismissed on the assumption that Norton’s behavior was merely the result of the K2. It was not
until Norton fell to the floor and had blood “coming from her face” that medical attention was
given. (Doc. 2 at 7). She was transported to a hospital by ambulance where, after some treatment,
it was determined that she was brain dead. Norton’s mother decided to end her life support after
learning that she would never recover brain activity. The petition alleges that testing done at the
hospital showed “no illicit substance in her system.” (Id. at 8).
Norton’s estate filed this lawsuit in Tulsa County District Court, alleging claims under
the Oklahoma Constitution, Article 2, Sections 7, 9, and 30 and federal civil rights violations
1
“Nurse Ratched” is likely the intended subject of plaintiff’s reference. That character was
played by Louise Fletcher in the 1975 movie One Flew Over the Cuckoo’s Nest. She was named
the “fifth worst movie villain” by the American Film Institute. Biography for Nurse Ratched,
(Sep. 29, 2014, 4:34 p.m.), http://www.imdb.com/character/ch0002714/bio.
2
under 42 U.S.C. § 1983. On March 7, 2014, the case was removed to this Court. Defendants’
motion to dismiss followed.
STANDARDS
In considering dismissal under Rule 12(b)(6), this Court must determine whether the
plaintiff stated a claim upon which relief may be granted. See Fed. R. Civ. P. 12(b)(6). The
Federal Rules of Civil Procedure require “a short and plain statement of the claim to show that
the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A complaint must provide “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). The standard does “not require a
heightened fact pleading of specifics, but only 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. at 555-56, 570 (citations omitted). “Asking for plausible grounds …
does not impose a probability requirement at the pleading stage; it simply calls for enough facts
to raise a reasonable expectation that discovery will reveal evidence [supporting the claim]. And,
of course, a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof
of those facts is improbable and ‘that a recovery is very remote and unlikely.’” Id. at 556. “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. “Thus, if allegations 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.” Owens v. City of Barnsdall, 2014
U.S. Dist. LEXIS 71796, *4 (N.D. Okla. May 27, 2014) (citing Robbins v. Okla. ex rel. Okla.
Dep’t of Human Servs., 519 F.3d 1242, 1247 (10th Cir. 2008).
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Twombly articulated the pleading standard for all civil actions. See Ashcroft v. Iqbal, 556
U.S. 662, 684 (2009). For the purpose of making the dismissal determination, this Court must
accept all the well-pleaded factual allegations of the complaint as true, even if doubtful, and must
construe the allegations in the light most favorable to the claimant. See Twombly, 550 U.S. at
555; Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007).
DISCUSSION
1. Plaintiff’s State Law Claims under the Oklahoma Constitution
As noted, the defendants argue that this Court lacks subject matter jurisdiction over
plaintiff’s state law claims because she did not comply with the notice provisions found in the
OGTCA. Plaintiff argues that it was not required to do so because its claims, which arise under
the Oklahoma Constitution, are not subject to the limitations of the OGTCA.
Oklahoma has statutory mandates relating to private correctional companies, such as
Avalon, which require that notice be given to them of any potential claim prior to suit:
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.
Okla. Stat. tit. 57, § 566.4(B)(2). The OGTCA notice provisions clearly require that notice be
given and a denial of a claim be received prior to the filing of a lawsuit. Okla. Stat. tit. 51, §§ 156
and 157. This exhaustion is a jurisdictional prerequisite. Gurley v. Mem'l Hosp. of Guymon, 770
P.2d 573, 576 (Okla. 1989). Oklahoma’s notice requirement has been applied even where the
state claims at issue stem from the Oklahoma Constitution. See Smith v. Avalon Corr. Servs.,
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Inc., 13-CV-0676-CVE-TLW, 2014 WL 693445 (N.D. Okla. Feb. 21, 2014) (dismissing claim
brought under Art. 2, § 2 of the Oklahoma Constitution for failure to comply with OGTCA
notice requirements).
Unlike the circumstances in Bosh v. Cherokee County Gov. Bldg. Auth., 305 P.3d 994
(Okla. 2103), which held that a claim under the Oklahoma Constitution cannot be barred by the
OGTCA, requiring plaintiff to comply with the pre-suit notice provisions of the OGTCA would
not immunize the defendants from liability, it would simply require plaintiff to pursue
administrative exhaustion prior to pursuing this particular claim. Because plaintiff has not
alleged compliance with the pre-suit notice requirement, its state law claims are dismissed
without prejudice.
2. Plaintiff’s § 1983 Claims
Avalon and TRC also seek dismissal of plaintiff’s § 1983 claims, arguing that they
cannot be held vicariously liable for Johnson’s alleged actions and that plaintiff has not
otherwise pled facts that would support liability against them. Plaintiff acknowledges that it does
not seek to impose vicarious liability upon Avalon and TRC, and thus the only pertinent issue
with respect to the § 1983 claims is whether plaintiff has properly alleged claims against them
based upon their conduct.
Avalon and TRC house inmates under contract with the Oklahoma Department of
Corrections. Hence, they are subject to liability under § 1983 for constitutional violations. See
West v. Atkins, 487 U.S. 42, 54–57 (1988) (holding that a private doctor treating prisoners under
a contract with state prison authorities acted under color of state law for purposes of § 1983 suit
alleging Eighth Amendment violation). But, as noted, they cannot be held vicariously liable
under § 1983 for an employee’s actions. See Brammer–Hoelter v. Twin Peaks Charter Acad.,
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492 F.3d 1192, 1211 (10th Cir. 2007) (“It is true that § 1983 liability for an entity cannot be
predicated on respondeat superior.”). Instead, plaintiff must establish independent liability
against Avalon and TRC based upon a wrongful policy or custom. See Graves v. Thomas, 450
F.3d 1215, 1218 (10th Cir. 2006). A municipal entity may be held liable for an act it has
officially sanctioned, or for the actions of an official with final policymaking authority. Pembaur
v. City of Cincinnati, 475 U.S. 469, 480, 482-83 (1986); see also City of St. Louis v. Praprotnik,
485 U.S. 112, 127-28 (1988). The Tenth Circuit has described several types of actions which
may constitute a municipal policy or custom:
A municipal policy or custom may take the form of (1) “a formal regulation or
policy statement”; (2) an informal custom “amoun[ting] to ‘a widespread practice
that, although not authorized by written law or express municipal policy, is so
permanent and well settled as to constitute a custom or usage with the force of
law’”; (3) “the decisions of employees with final policymaking authority”; (4)
“the ratification by such final policymakers of the decisions – and the basis for
them – of subordinates to whom authority was delegated subject to these
policymakers’ review and approval”; or (5) the “failure to adequately train or
supervise employees, so long as that failure results from ‘deliberate indifference’
to the injuries that may be caused.”
Bryson, 627 F.3d at 788 (citations omitted).
Here, plaintiff’s allegations are devoid of anything regarding a policy or custom on the
part of Avalon or TRC. The plaintiff does seem to suggest that use of the hot seat was a custom
that Johnson enforced, but it is unclear whether this could form the basis of a policy or custom
attributable to Avalon or TRC because it is unclear whether Johnson has final policymaking
authority or whether use of the hot seat is an official policy or custom that Avalon and/or TRC
have otherwise implemented. As such, plaintiff’s § 1983 claims against Avalon and TRC are
subject to dismissal. Plaintiff shall, however, be given leave to amend its petition to cure this
defect, assuming facts exist which would do so, as amendment does not appear to be futile.
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3. Whether Avalon is a Proper Party
Avalon argues that it is not a proper party because it is a holding company of TRC and
TRC operates the actual facility at issue. Plaintiff’s petition, which must be accepted as true at
this stage, alleges that Avalon owns and operates the Turley facility. This is sufficient to deny
dismissal on this basis.2
IT IS THEREFORE ORDERED that defendants’ Motion to Dismiss (Doc. 5) is
granted in part and denied in part. Plaintiff’s state law claims are dismissed for lack of
subject matter jurisdiction.
Plaintiff shall file within 21 days of the date of this Opinion and Order an amended
complaint which cures the deficiency noted with respect to its § 1983 claims against Avalon and
TRC. If plaintiff fails to do so, those claims will be dismissed as to Avalon and TRC.
SO ORDERED this 2nd day of October, 2014.
2
Defendants made no attempt to seek summary judgment on this basis, and in light of the
applicable dismissal standards and current posture of this case, they are cautioned against urging
arguments so obviously lacking in merit in future pleadings.
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