Foutch v. Turn Key Health, LLC et al
OPINION AND ORDER by Chief Judge Gregory K Frizzell ; granting 22 Motion to Dismiss (kjp, Dpty Clk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
KELLY L. FOUTCH, administrator of the
Estate of RUSSELL TED FOUTCH, deceased, )
TURN KEY HEALTH, LLC, d/b/a TURN
KEY MEDICAL, and TURN KEY;
CREEK COUNTY PUBLIC FACILITIES
JANE DOE NURSE I;
JANE DOE NURSE II; and
JOHN/JANE DOES III–X,
Case No. 17-CV-431-GKF-JFJ
OPINION AND ORDER
Before the court is the “Partial Motion to Dismiss” [Doc. No. 22] of defendant Creek
County Public Facilities Authority (the Jail). Plaintiff Kelly L. Foutch, as administrator of the
Estate of Russell Ted Foutch, deceased, brings three claims against the Jail: (1) a federal civil
rights claim pursuant to 42 U.S.C. § 1983; (2) a pendent state claim for negligent conduct,
training, hiring, and supervision; and (3) a claim for violations of Sections 7 and 9 of Article II of
the Oklahoma Constitution. The Jail moves to dismiss the negligence and state constitutional
claims for failure to state a claim upon which relief can be granted.
Russell Foutch died on September 30, 2016 while in the physical custody of the Jail. The
Jail contracted with defendant Turn Key, LLC to provide medical staff and services at the Jail in
order to provide healthcare to its inmate population. Four days before he died, Mr. Foutch
struggled to breathe. Inmates reported that it sounded as if he had fluid in his lungs. As a group,
they requested that Foutch receive a medical evaluation. Upon completion of the evaluation,
Foutch was told he needed an antibiotic but would not receive one because a doctor could not be
contacted. Three days before he died, Foutch lost consciousness on the floor of the jail’s day
room, but no one employed by the Jail or Turn Key came to assist. Foutch was observed
coughing up blood, and appeared blue, with jaundiced eyes. Other inmates requested medical
attention for Mr. Foutch but were ignored. Two days before he died, Foutch received one
breathing treatment and was told Jail staff would come and get him for another, but that did not
occur. The day before he died, Mr. Foutch’s cellmate found him unconscious and purple in color
on the floor of his cell. Three Jail guards came and had Foutch walk to the front of the jail while
he complained of shortness of breath, difficulty breathing, and a headache. On the day of his
death, Mr. Foutch again coughed up blood. After eating lunch, Foutch returned to his cell where
he again lost consciousness and turned blue.
Mr. Foutch was taken to a hospital, where
emergency room doctors pronounced him dead within two minutes of his arrival.
The Negligence Claim
Plaintiff contends that Jail employees and agents negligently failed to provide ordinary
and reasonable care for Mr. Foutch as his condition deteriorated, and that the Jail breached its
duty of care to Mr. Foutch by failing to effectively train and supervise its jail and medical staff.
The Jail argues it is immune from suit on the negligence claim because Oklahoma’s
Governmental Tort Claims Act (OGTCA) exempts it from liability. The OGTCA provides that a
governmental entity shall not be liable if a claim results from “[p]rovision, equipping, operation
or maintenance of any prison, jail or correctional facility . . . .” 51 O.S. § 155(25). The
Oklahoma Supreme Court interprets this language broadly:
Reading [Section 155(25)] 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 . . . medical and health services or any other service
provided for inmates or other persons . . . .
Medina v. State, 871 P.2d 1379, 1384 n.13 (Okla. 1993). Stated differently, the legislative intent
of § 155(25) is “to protect the state from liability for loss resulting from any and all actions of
officers and employees of a penal institution.” Gooding v. Ketcher, 838 F. Supp. 2d 1231, 1243
(N.D. Okla. 2012) (quoting Redding v. State, 882 P.2d 61, 63 (Okla. 1994)). The negligence
claim in this case falls squarely within this exception, and must be dismissed.
The Bosh Claim
Relying on Bosh v. Cherokee Bldg. Auth., 305 P.3d 994 (Okla. 2013), plaintiff contends
the Oklahoma Constitution provides her a private right of action for violation of Mr. Foutch’s
rights under sections 7 (right of due process of law) and 9 (cruel or unusual punishments
prohibited) of Article II.1 In Bosh, the Oklahoma Supreme Court decided that article II, section
30 of the Oklahoma Constitution provides a private right of action for excessive force,
notwithstanding provisions of the OGTCA immunizing the state from liability for such claims.
See id. at 1001. In reaching this result, the 7-2 majority stated that:
The OGTCA cannot be construed as immunizing the state completely from all
liability for violations of the constitutional rights of its citizens. To do so would
not only fail to conform to established precedent which refused to construe the
OGTCA as providing blanket immunity, but would also render the Constitutional
protections afforded the citizens of this State as ineffective,and a nullity.
Therefore, we . . . hold that the Okla. Const. art. 2, § 30 provides a private cause
of action for excessive force, notwithstanding the requirements and limitations of
Section 7 states: “No person shall be deprived of life, liberty, or property, without due process of law.”
Section 9 states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual
Id.2 More recently, in Deal v. Brooks, 389 P.3d 375, 384 (Okla. Civ. App. 2016), the Oklahoma
Court of Civil Appeals held that article II, section 7 of the Oklahoma Constitution provided a
private cause of action for a child whose due process rights had been violated by reckless and
deliberate acts of the Department of Human Services. There, the Court of Civil Appeals wrote:
As in Bosh, where the Oklahoma Supreme Court declined to
construe the GTCA so as to immunize the state from
constitutionally-based liability for excessive force inflicted on a
prisoner while in its custody, we conclude the GTCA does not
immunize [the Oklahoma Department of Human Services] from
liability for certain reckless and deliberate acts that deprive a child
of due process rights while in state custody. To decide otherwise
would render as ineffective, and a nullity, a child's fundamental
“interest in safe conditions, personal security, and bodily integrity
for persons in state custody” guaranteed under the due process
clause of both the United States Constitution and the Oklahoma
Id. (emphasis in original). The Oklahoma Supreme Court subsequently approved Deal for
publication, so the opinion is accorded precedential value. Deal v. Brooks, 2016 OK 123 (Okla.
2016); see also OKLA. SUP. CT. R. 1.200(e).
As the Jail points out, the Oklahoma Supreme Court has not fashioned a Bosh claim
under Article II, Sections 7 or 9 for alleged denial of inmate medical care. Bosh recognized a
private cause of action by pre-trial detainees for excessive force in violation of Article II, § 30;
and Deal recognized a private cause of action for reckless and deliberate acts that deprived a
child of substantive due process in violation of Article II, § 7. Neither decision created a private
cause of action under Article II, § 7 for denial of inmate medical care, or under Article II, § 9.
To permit plaintiff’s state constitutional claim to proceed would require this court to
extend Bosh and Deal beyond their holdings. Federal courts “are generally reticent to expand
One year later, in Perry v. City of Norman, 341 P.3d 689, 693 (Okla. 2014), the Oklahoma Supreme Court
held that a Bosh claim for excessive force could not be brought when a cause of action under the OGTCA
is available. Here, plaintiff does not have a remedy under the OGTCA.
state law without clear guidance from its highest court.” Schrock v. Wyeth, Inc., 727 F.3d 1273,
1284 (10th Cir. 2013). That is especially true here, given that the requested expansions present
questions of state constitutional law which would have significant consequences on state
interests.3 Without any clear guidance from the Oklahoma Supreme Court, the court declines to
extend Bosh and Deal beyond their holdings to create a private cause of action under Article II,
§§ 7 and 9 for alleged denial of inmate medical care. Therefore, the Jail’s motion to dismiss
plaintiff’s state constitutional claim is granted.
WHEREFORE, the Creek County Public Facilities Authority’s Motion to Dismiss
plaintiff’s negligence and state constitutional claims [Doc. No. 22] is granted.
ORDERED this 9th day of April, 2018.
Oklahoma Federal Courts have generally been reluctant to expand the scope of Bosh claims beyond
circumstances approved by the Oklahoma Supreme Court. See Hedger v. Kramer, 2013 WL 5873348, at
*2–3 (W.D. Okla. Oct. 30, 2013) (declining to extend Bosh excessive force claims beyond its particular
circumstances); Koch v. Juber, 2014 WL 2171753, at *3 (W.D. Okla. May 23, 2014) (“Bosh does not serve
to create a private right of action for all claims arguably arising under the Oklahoma Constitution”);
Bruning v. City of Guthrie, 2015 WL 4925995, at *8-9 (W.D. Okla. Aug. 18, 2015); Langkamp v. Mayes
Emergency Servs. Tr. Auth., 2017 WL 2819003, at *5–7 (N.D. Okla. June 29, 2017) (expressing reluctance
to expand Bosh beyond its holding, where plaintiffs asserted claims under article II, sections 2 (inherent
right to life, liberty, and the pursuit of happiness), 3 (right of assembly and petition), 7, and 22 (right of free
speech and press), but finding no conflict between the Oklahoma Constitution and the OGTCA because
plaintiff had a cause of action under the OGTCA); but see Miller v. City of Konowa, 2017 WL 6328942, at
*3–4 (E.D. Okla. Dec. 11, 2017) (noting Bosh has not been limited to its facts and holding plaintiff had
stated a viable Bosh claim in the context of a sexual harassment suit).
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