Randolph v. Glanz et al
Filing
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OPINION AND ORDER by Judge Claire V Eagan ; dismissing/terminating case (terminates case) ; granting in part and finding as moot in part 16 Motion to Dismiss; finding as moot 20 Motion to Dismiss for Failure to State a Claim; granti ng in part and finding as moot in part 22 Motion to Dismiss Party (Documents Terminated: 22 MOTION to Dismiss Party Stanley Glanz and Vic Regalado , 16 MOTION to Dismiss , 20 MOTION to Dismiss for Failure to State a Claim ) (djh, Dpty Clk)
UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
DAKOTA RANDOLPH,
Plaintiff,
v.
STANLEY GLANZ, in his individual
capacity; BOARD OF COUNTY
COMMISSIONERS OF TULSA COUNTY;
ARMOR CORRECTIONAL HEALTH
SERVICES, INC.; VIC REGALADO, in his
official capacity as Tulsa County Sheriff,
Defendants.
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Case No. 16-CV-0154-CVE-TLW
OPINION AND ORDER
Now before the Court are Defendant Armor Correctional Health Services, Inc.’s Motion to
Dismiss (Dkt. # 16), Motion and Brief to Dismiss Plaintiff’s Amended1 Complaint by Defendant
Tulsa County Board of County Commissioners (Dkt. # 20), and Defendants Stanley Glanz in His
Individual Capacity and Sheriff Vic Regalado in His Official Capacity’s Motion to Dismiss
Complaint (Dkt. # 22). Defendant Armor Correctional Health Services, Inc. (Armor) asks the Court
to dismiss plaintiff’s claims against it for failure to state a claim, arguing that plaintiff’s claim under
42 U.S.C. § 1983 has failed to satisfy the federal pleading standards, that Armor is immune from suit
under the Oklahoma Governmental Tort Claims Act, Okla. Stat. tit. 51, § 151-172 (OGTCA), that
plaintiff’s state law and state constitutional claims are barred by the statute of limitations, and that
article II, sections 7 and 9 of the Oklahoma Constitution do not protect pretrial detainees. Dkt. # 16.
1
Plaintiff has filed only one complaint in this case. The Court treats this motion as a motion
to dismiss the original complaint (Dkt. # 3).
Defendant Tulsa County Board of County Commissioners (BOCC) asks the Court to dismiss
plaintiff’s claims against it for failure to state a claim, arguing that it is immune from plaintiff’s
negligence claim against it, that the BOCC cannot be held liable under respondeat superior for the
actions of the Tulsa County Sheriff’s Office (TCSO), that plaintiff’s claims have failed to satisfy the
federal pleading standards, that suit against the BOCC is redundant, and that plaintiff cannot be
awarded punitive damages under the OGTCA. Dkt. # 20. Defendants Glanz, individually, and
Regalado, in his official capacity, ask the Court to dismiss plaintiff’s claims against them for failure
to state a claim, arguing that plaintiff’s claims have failed to satisfy the federal pleading standards,
that Glanz is entitled to qualified immunity, and that plaintiff’s state law and state constitutional
claims are barred by the statute of limitations. Dkt. # 22. Plaintiff responds that he properly pled his
§ 1983 claim, that Armor is not immune under the OGTCA, that his claims under state tort law and
the state constitution are not time barred, that article II, sections 7 and 9 of the Oklahoma
Constitution cover pretrial detainees, that the BOCC can be held liable under respondeat superior
for violations of the Oklahoma Constitution, that the BOCC is not a redundant party because it may
be the only appropriate defendant for plaintiff’s state constitutional claim against the county, that
whether BOCC can be held liable for punitive damages is an open question, and that Glanz is not
entitled to qualified immunity. Dkt. ## 27, 28, 29. Plaintiff concedes that his negligence claim
against the BOCC is barred. Dkt. # 28, at 1.
I.
This suit arises from plaintiff’s detention in the David L. Moss Criminal Justice Center (Jail)
in July 2014. Dkt. # 3. Plaintiff asserts that on or about July 3, 3014, he awoke with a swollen left
eye that caused pain and vision loss. Id. at 4. Plaintiff asserts that after complaining to TCSO staff,
2
he was taken to the Jail’s medical unit and seen by a nurse employed by Armor. Id. Plaintiff
contends that the nurse diagnosed him with pink eye and gave him antibiotic drops. Id. Plaintiff
alleges that the swelling, pain, and loss of vision in his eye increased over time, and that he
repeatedly complained to TCSO staff and requested to see a doctor. Id. at 5. Plaintiff asserts that on
or about July 8, 2014, an Armor physician diagnosed him with a corneal abrasion and gave him
more antibiotic eye drops. Id. Plaintiff alleges that another approximately ten days passed, during
which the swelling, pain, and vision loss in his eye further increased and he continued to complain
to TCSO and Armor staff. Id. at 6. Plaintiff alleges that on July 18, 2014, he was referred to an
ophthalmologist, who diagnosed him with acute iridocyclitis, panuveitis, corneal edema, vitritis, and
posterior synechiae. Id. at 6-7. Plaintiff alleges that before these events he had 20/20 vision, but he
now has 85% blindness in his left eye. Id. at 7.
On March 21, 2016, plaintiff filed a complaint alleging: (1) a negligence claim against
BOCC and Armor; (2) a § 1983 claim against Armor, Glanz in his individual capacity, and Michelle
Robinette2 in her official capacity as acting Sheriff of Tulsa County. All defendants have moved to
dismiss, arguing that plaintiff has failed to state a claim as to each of his claims. Dkt. ## 16, 20, 22.
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 Atl. Corp. v. Twombly, 550 U.S. 544, 555
2
Robinette was later replaced by Vic Regalado in this suit after he assumed the position of
Tulsa County Sheriff. Dkt. # 17.
3
(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, 556 U.S. 662, 683 (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 a 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 Cnty. Bd. of Cnty. 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, 110910 (10th Cir. 1991).
III.
The Court first considers plaintiff’s claim under 42 U.S.C. § 1983 against Armor, Glanz in
his individual capacity, and Regalado in his official capacity. Defendants argue, inter alia, that
plaintiff has failed to allege facts sufficient to show that he suffered a violation of a constitutional
right. Dkt. # 16, at 4-9; Dkt. # 22, at 9-11. Plaintiff alleges that defendants were deliberately
indifferent to his medical needs in violation of the Eighth and Fourteenth Amendments. Dkt. # 27,
at 4-11; Dkt. # 29, at 4-11.
A.
4
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).
Deliberate indifference to a prisoner’s serious medical needs constitutes a violation of the
Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976); see also Mata v. Saiz, 427 F.3d
745, 751 (10th Cir. 2005). Although the Eighth Amendment’s protections do not attach until after
an adjudication of guilt, pretrial detainees are protected against medical inattention under the
Fourteenth Amendment’s guarantee of due process. Garcia v. Salt Lake Cnty., 768 F.2d 303, 307
(10th Cir. 1985); see also Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009). Therefore, the
deliberate indifference standard is also proper for determining when denial of medical attention
violates a pretrial detainee’s Fourteenth Amendment right. Garcia, 768 F.2d at 307.
The deliberate indifference test has both an objective and a subjective prong. Mata, 427 F.3d
at 751. The objective prong requires that the constitutional deprivation at issue is “sufficiently
serious.” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). A delay in medical attention
will only constitute a constitutional harm when the delay results in a substantial harm. Id. (quoting
Oxendine v. Kaplan, 241 F.3d 1272, 1276 (10th Cir. 2001)). The substantial harm requirement may
be satisfied by “lifelong handicap, permanent loss, or considerable pain.” Id. (quoting Garrett v.
Stratman, 254 F.3d 946, 950 (10th Cir. 2001)).
5
The subjective prong requires that the defendant had a “culpable state of mind.” Id. “[A]
prison official cannot be liable ‘unless the official knows of and disregards an excessive risk to
inmate health or safety; the official must both be aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists, and he must also draw the inference.’” Self v.
Crum, 439 F.3d 1227, 1231 (10th Cir. 2006) (quoting Farmer, 511 U.S. at 837). Intent can be
demonstrated by circumstantial evidence, such as the fact that the risk is obvious. Maza, 427 F.3d
at 752. In prison medical cases, two types of conduct may constitute deliberate indifference: (1) a
medical professional fails to properly treat a serious medical condition; and (2) prison officials
prevent an inmate from receiving medical treatment or deny access to a medical professional capable
of diagnosing or treating the condition. Sealock v. Colorado, 218 F.3d 1205, 1211 (10th Cir. 2000).
However, the subjective prong is not met when a doctor exercises medical judgment absent an
extraordinary degree of neglect. Self, 439 F.3d at 1232. Negligence, even negligence rising to the
level of medical malpractice, does not rise to the level of a constitutional violation. Id. at 1233.
Medical judgment covers such matters as whether to consult a specialist or undertake additional
medical testing. Id. at 1232. Thus, for a claim stemming from a failure to provide additional
treatment or refer a medical specialist, the need must have been obvious in order to fulfill the intent
requirement. Id. The Tenth Circuit has identified three contexts in which a missed diagnosis or
delayed referral may be obvious:
(1) a medical professional recognizes an inability to treat the patient due to the seriousness
of the condition and his corresponding lack of expertise but nevertheless declines or
unnecessarily delays referral . . . ; (2) a medical professional fails to treat a medical condition
so obvious that even a layman would recognize the condition; and (3) a medical professional
completely denies care although presented with recognizable symptoms which potentially
create a medical emergency . . . .
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Id. “But where a doctor orders treatment consistent with the symptoms presented and then continues
to monitor the patient’s condition, an inference of deliberate indifference is unwarranted.” Id. at
1232-33.
B.
The Court finds that plaintiff has failed to plead facts sufficient to show that he suffered a
constitutional deprivation. Plaintiff alleges that he is 85% blind in his left eye, suffered great pain,
and that his symptoms increased over the time he waited to be referred to an ophthalmologist. Dkt.
# 3, at 5-7. As plaintiff alleges a permanent loss and considerable pain caused by delay in referral
to a medical specialist, his allegations are “sufficiently serious” to satisfy the deliberate indifference
objective prong. However, accepting plaintiff’s well-pled allegations as true, plaintiff he has failed
to state a claim against Armor, Glanz in his individual capacity, or Regalado in his official capacity
that would satisfy the subjective prong of the deliberate indifference test.
Plaintiff’s claim against defendants for deliberate indifference relies on two delays: the delay
in seeing a doctor after being treated by a nurse, and the delay in a doctor referring him to a medical
specialist.3 Absent allegations of actual knowledge, in order for plaintiff to prevail, he must allege
that his need to see a doctor or a specialist was obvious. Under the three contexts that constitute
obviousness identified in Self, only the first could apply to plaintiff: there was no failure to treat his
medical condition because he was promptly seen and treated by a nurse, and no care was denied
3
Plaintiff also argues that he suffered a constitutional harm due to a delay in medical
treatment. See, e.g., Dkt. # 27 at 5 (“Armor’s failure to treat, delay in treating and
mistreatment of that condition resulted in substantial harm.”). However, plaintiff’s
allegations do not demonstrate that there was any delay in treatment. The timeline is not
entirely clear, but plaintiff’s complaint indicates that he was seen by a nurse either
immediately or very soon after first complaining about his eye. See Dkt. # 3, at 4. Therefore,
plaintiff’s claim must be that his treatment was inadequate. See Self, 439 F.3d 1227 at 1234.
7
because he was given drops to treat his eye by both the nurse and doctor. See Dkt. # 3, at 4-6. Thus,
in order for plaintiff to state a claim that would constitute a constitutional violation, he must allege
that a medical professional actually recognized his inability to treat plaintiff due to the seriousness
of plaintiff’s condition and the medical professional’s corresponding lack of expertise and then
unnecessarily delayed referral, or that the need for a specialist was obvious. Plaintiff’s complaint
fails to meet this standard.
According to the complaint, the plaintiff presented with a swollen and painful eye to the
nurse who originally treated him, and she diagnosed him with pink eye and treated him with eye
drops. Dkt. # 3, at 4. Plaintiff makes a conclusory allegation that the nurse’s failure to consult a
physician or have a physician see plaintiff constitutes deliberate indifference. Id. at 4-5. But no facts
are alleged that support plaintiff’s conclusion that it was obvious a doctor should have been
consulted, let alone that the nurse actually recognized that plaintiff’s condition was beyond her
ability to treat and decided not to consult a doctor anyway. Compare Mata, 427 F.3d at 756 (finding
a viable claim for deliberate indifference where a nurse knew an inmate was suffering from severe
chest pains but refused to assess or diagnose the potential cardiac emergency in violation of prison
medical protocols), with id. at 760-61 (finding no evidence for deliberate indifference where a nurse
made a good faith effort to diagnose and treat the plaintiff’s condition despite failing to diagnose a
heart attack). Plaintiff argues that the obviousness of the condition is circumstantial evidence that
the nurse was deliberately indifferent in fulfilling her gatekeeper role. Dkt. # 27, at 6. However, a
swollen eye is not the type of ailment that often points to a risk of serious harm. See Hunt v. Uphoff,
199 F.3d 1220, 1224 (10th Cir. 1999) (“Delays that courts have found to violate the Eighth
Amendment have frequently involved life-threatening situations and instances in which it is apparent
8
that delay would exacerbate the prisoner’s medical problems.” (quoting Grant v. Bernalillo Cnty.
Detention Ctr., No. 98-2193, 1999 WL 157415, at *2 (10th Cir. Mar. 23, 1999))). Furthermore,
plaintiff has not alleged any facts to support the claim that the nurse acted with a level of care
inconsistent with the symptoms presented. Plaintiff points to a recent decision in this District,
Birdwell v. Glanz, No. 15-CV-304-TCK-FHM, 2016 WL 2726929 (N.D. Okla. May 6, 2016), to
support his argument that he has properly pled a claim of deliberate indifference. Dkt. # 27, at 10.
But the comparison to Birdwell is inapt. In Birdwell, the plaintiff was struck with an object near his
eye and complained of migraines, loss of vision, swelling, ear and throat pain, and a possible brain
hemorrhage. Birdwell, 2016 WL 2726929 at *2. Despite the plaintiff’s complaints, prison medical
staff treated only the cut, stitching him up and allowing an untrained and unsupervised nurse to
remove the stitches days after they should have been taken out. Id. at *5. Here, plaintiff complained
of pain, swelling, and loss of vision in his left eye. Dkt. # 3, at 4-6. A nurse and then a doctor treated
his left eye for conditions that it was not unreasonable to think plaintiff had based on the symptoms
he presented. Id. In Birdwell, the plaintiff presented with symptoms that went far beyond the surface
level cut for which he was treated. But here, the level of care was consistent with the symptoms
presented.
Plaintiff alleges that about five days passed between his treatment by the nurse and seeing
a doctor. Dkt. # 3, at 4-5. The doctor diagnosed plaintiff with a corneal abrasion and gave him more
antibiotic eye drops. Id. at 5. Again plaintiff makes conclusory statements that the need for plaintiff
to see an ophthalmologist was obvious and that the doctor’s failure to refer plaintiff at that time
constitutes deliberate indifference. Id. at 6. But the facts plaintiff alleges show that he presented to
the doctor with a swollen and painful eye accompanied by some vision loss. Id. at 5. As with the
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nurse who first treated him, plaintiff has failed to plead facts to show that the level of care he
received was inconsistent with the symptoms he presented or that any of Armor’s doctors had any
sort of actual knowledge or reckless state of mind that plaintiff needed to see a medical specialist.
The fact that the nurse had already given plaintiff antibiotic eye drops and they had not relieved his
condition does not amount to an obvious need for a specialist. In Heidtke v. Corrections Corp. of
America, 489 F. App’x 275 (10th Cir. Sept. 27, 2012),4 the plaintiff broke his arm and was taken to
the hospital for treatment, but once back in prison he suffered increasing swelling, pain, loss of
mobility, tingling, and numbness. Id. at 277-78. The plaintiff complained of his worsening
symptoms, but prison medical staff continued to rewrap his arm each time they saw him and failed
to order additional testing or send him back to the hospital for seven weeks. Id. The Tenth Circuit
held that the subjective prong of the deliberate indifference test was not met because the plaintiff
had shown that prison staff had missed a diagnosis, not that they acted with conscious disregard to
his medical needs. Id. at 281-82.
Additionally, cases in which the Tenth Circuit has found properly pled a deliberate
indifference claim for failing to refer an inmate to a specialist involve much more obvious needs for
specialized expertise than plaintiff alleges here. For example, in Oxendine, the Tenth Circuit held
that the plaintiff had stated a claim for deliberate indifference when he alleged a doctor working for
the prison performed surgery to reattach a severed finger tip and then failed to consult a specialist
for weeks after the doctor noted the fingertip had turned black and began to disintegrate. 241 F.3d
at 1279. Plaintiff’s allegations instead fall under the banner of medical judgment. Armor’s medical
4
This and all other unpublished opinions are not precedential, but they may be cited for their
persuasive value. See Fed. R. App. 32.1; 10th Cir. R. 32.1.
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professionals may have misdiagnosed him, but nothing in plaintiff’s complaint supports the
extraordinary degree of neglect required to sustain a claim of deliberate indifference. See Self, 439
F.3d at 1234 (“[T]he mere possibility that [plaintiff’s] symptoms could also point to other conditions
. . . is not sufficient to create an inference of deliberate indifference. . . . [M]isdiagnosis, even if
rising to the level of medical malpractice, is simply insufficient under our case law to satisfy the
subjective component of a deliberate indifference claim.”). Moreover, when it became clear that
neither treatment that Armor staff administered relieved plaintiff’s condition, plaintiff was referred
to a specialist. Dkt. # 3, at 6; see also Self, 439 F.3d at 1234 (finding no evidence of deliberate
indifference when a doctor initially misdiagnosed an inmate and later ordered additional tests and
sent him to the hospital when the inmate did not respond to treatment).
Plaintiff also alleges that the failure of TCSO staff to take plaintiff to get medical attention
during (1) the five days between his seeing the nurse and seeing the first doctor and (2) the ten days
between seeing the first doctor and the seeing the second doctor, amounted to deliberate
indifference. Dkt. # 3, at 5-6. Because plaintiff was treated promptly after first complaining of his
condition, to prevail plaintiff must allege that TCSO staff actually knew that plaintiff needed
additional medical treatment or that such a need was obvious. Plaintiff makes conclusory statements
that his need for immediate medical care was obvious in the days after he was treated by the nurse
and the days after he was treated by the first doctor. Id. at 5-6. However, plaintiff alleges no facts
to support the claim that his need for additional treatment was obvious or that any TCSO staff knew
he needed more treatment. Plaintiff alleges that his eye appeared swollen and that he complained
to TCSO staff that he was in pain and lost some of his vision. Id. at 5-6. Plaintiff also asserts that
these symptoms worsened over time. Id. Plaintiff’s claim is essentially that TCSO staff delayed too
11
long in taking him to receive additional medical care. However, given the symptoms plaintiff alleges
and the relatively few number of days between the three times TCSO staff took plaintiff to receive
medical treatment, plaintiff’s complaint fails to allege facts that support his claim that it was obvious
plaintiff needed additional medical care or that TCSO knew he needed more treatment.
IV.
Plaintiff’s remaining claims arise under state law. Pursuant to 28 U.S.C. § 1367(a), a federal
court may exercise supplemental jurisdiction over claims related to the claims over which it has
original jurisdiction. A district court may decline to exercise supplemental jurisdiction if it has
dismissed all claims over which it has original jurisdiction. 28 U.S.C. § 1367(c)(3); see also Gaston
v. Ploeger, 297 F. App’x 738, 746 (10th Cir. 2008) (stating that § 1367(c)(3) expressly permits a
district court to decline to exercise supplemental jurisdiction over remaining state law claims after
granting summary judgment in favor of defendant on federal law claims). This Court does not have
original jurisdiction over plaintiffs’ negligence or state constitutional claims, because those claims
arise under state law, and there is no evidence of diversity jurisdiction. The decision to exercise
supplemental jurisdiction is discretionary, but courts should consider “the nature and extent of
pretrial proceedings, judicial economy, convenience, and [whether] fairness would be served by
retaining jurisdiction.” Anglemeyer v. Hamilton Cnty. Hosp., 58 F.3d 533, 541 (10th Cir. 1995)
(quoting Thatcher Enters. v. Cache Cnty. Corp., 902 F.2d 1472, 1478 (10th Cir. 1990)).
The Court finds that the extent of the pretrial proceedings does not outweigh the interests that
would be served by having plaintiff’s state law claims tried in a state court. Judicial economy would
be served by having the Oklahoma courts resolve issues of Oklahoma law. Further, the Tenth Circuit
has “repeatedly recognized that this is the preferred practice.” Gaston, 297 F. App’x at 786; see also
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Smith v. City of Enid, 149 F.3d 1151, 1156 (10th Cir. 1998) (“When all federal claims have been
dismissed, the court may, and usually should, decline to exercise jurisdiction over any remaining
state law claims.”); Ball v. Renner, 54 F.3d 664, 669 (10th Cir. 1995) (noting that there are “the best
of reasons” for a district court to defer to a state court rather than retaining and disposing of state
law claims). The Court declines to exercise supplemental jurisdiction over plaintiffs’ remaining
state law claims.5
IT IS THEREFORE ORDERED that Defendant Armor Correctional Health Services,
Inc.’s Motion to Dismiss (Dkt. # 16) and Defendants Stanley Glanz in His Individual Capacity and
Sheriff Vic Regalado in His Official Capacity’s Motion to Dismiss Complaint (Dkt. # 22) are
granted in part and moot in part: they are granted with respect to plaintiff’s claims under 42
U.S.C. § 1983; they are moot with respect to plaintiff’s claims under Oklahoma state tort law and
the Oklahoma Constitution.
IT IS FURTHER ORDERED that Motion and Brief to Dismiss Plaintiff’s Amended
Complaint by Defendant Tulsa County Board of County Commissioners (Dkt. # 20) is moot.
IT IS FURTHER ORDERED that plaintiff’s claims under Oklahoma state tort law and the
Oklahoma Constitution are dismissed for lack of subject matter jurisdiction.
IT IS FURTHER ORDERED that this is a final order terminating this case.
DATED this 16th day of September, 2016.
5
This Court’s dismissal of plaintiff’s remaining claims does not leave him without a remedy.
Although plaintiff failed to state a claim constituting a violation of the United States
Constitution, he may be entitled to relief under Oklahoma law, which plaintiff is free to seek
from the Oklahoma courts.
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