Montes v. Reed
Filing
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OPINION AND ORDER by Judge John E Dowdell ; granting in part 10 Motion to Dismiss (JED1, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
AUTUMN MONTES,
Plaintiff,
v.
SHERIFF MIKE REED, in his official
Capacity as Mayes County Sheriff,
Defendant.
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Case No. 17-CV-565-JED-JFJ
OPINION AND ORDER
I.
Background
Plaintiff is the daughter of, and personal representative of the Estate of, James L. Wilson.
In her Complaint, she alleges that, on August 5, 2016 at approximately 5:00 p.m., her father, James
Wilson, was booked into the Mayes County Jail on an outstanding warrant. (Doc. 2 at ¶ 15). He
was being held as a pretrial detainee. According to the Complaint, Mr. Wilson was placed in a
pod, alone, and he there “sustained serious and ultimately fatal injuries including traumatic
hemothorax, fractured left 4th, 5th, 6th, 7th, and 8th ribs, superior endplate compression-type
fracture involving the L1 vertebral body and acute burst-type compression deformity involving the
L2 vertebral body, fracture / loss of vertebral body height at C7, fracture to left scapula with medial
displacement of the distal fracture . . . [and other injuries, including] severe concussion, and
memory loss.” (Id. at ¶ 16). He was transported to the emergency room within hours after being
booked into the jail. (Id. at ¶ 17).
Plaintiff asserts that Mayes County Jail detention officers claimed that Mr. Wilson’s
injuries were the result of “roll[ing] off the top bunk” in his cell, but medical professionals who
treated Mr. Wilson determined that such an explanation was impossible and that such injuries must
have been maliciously inflicted on him. (Id.). A nurse reported to the plaintiff that, when Mr.
Wilson was brought into the emergency room, he had a large bruise on his back in the shape of a
boot print. (See id. at ¶ 18). “Severe bruising and deep lacerations were also visible” on Mr.
Wilson’s wrists, “likely resulting from the use of handcuffs when his injuries were inflicted.” (Id.).
After Mr. Wilson was transferred to another hospital, plaintiff was informed that Wilson
had been beaten badly. He was in critical condition and required a tracheotomy, and he was put
on a respirator and a feeding tube. (Id. at ¶ 19). After he regained consciousness, Mr. Wilson was
“unable to recognize family members or recall what happened to him.” (Id.). He had previously
been jailed at the Mayes County Jail, and he informed family members that he was afraid to return
to the jail “due to incidents from a previous incarceration when detention officers were very hostile
towards him and extremely vocal about their distaste for his alleged crime. [He] said he feared the
detention officers would kill him when they had the opportunity.” (Id. at ¶ 20). Mr. Wilson was
hospitalized for most of the time until February 9, 2017, when he “finally succumbed to his
injuries.” (Id. at ¶ 21).
Plaintiff asserts claims under 42 U.S.C. § 1983 against the Sheriff, in his official capacity,
for allegedly cruel and unusual punishment and excessive force. In addition, plaintiff alleges
claims for wrongful death, negligence, intentional infliction of emotional distress, and assault and
battery. Sheriff Reed moves for dismissal pursuant to Fed. R. Civ. P. 12(b)(6), on several grounds.
(See Doc. 10). Plaintiff opposes the dismissal motion and indicates that she should be permitted
to amend to cure any deficiencies. (See Doc. 12 at 4, 6, 8, 11).
II.
Dismissal Standards
In considering a Rule 12(b)(6) dismissal motion, a court must determine whether the
plaintiff has stated a claim upon which relief may be granted. See Fed. R. Civ. P. 12(b)(6). The
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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. In making
the dismissal determination, a 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.
III.
Discussion
A.
Section 1983 Claims
1.
Official Capacity
Plaintiff’s suit is against Sheriff Mike Reed, in his official capacity. A § 1983 claim against
a government actor in his official capacity “is essentially another way of pleading an action against
the county or municipality” he represents, and is considered under the standards applicable to §
1983 claims against municipalities or counties. Porro v. Barnes, 624 F.3d 1322, 1328 (10th Cir.
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2010); see Kentucky v. Graham, 473 U.S. 159, 166 (1985) (“[A]n official-capacity suit is, in all
respects other than name, to be treated as a suit against the entity.”); Lopez v. LeMaster, 172 F.3d
756, 762 (10th Cir. 1999) (“[Plaintiff]’s suit against Sheriff LeMaster in his official capacity as
sheriff is the equivalent of a suit against Jackson County, [Oklahoma].”). The Court will
accordingly consider the official capacity claim against Sheriff Reed under the same standards
applicable to municipal entities.
A municipality may not be held liable under § 1983 solely because its employee inflicted
injury; municipal liability cannot be found by application of the theory of respondeat superior.
Monell v. Dept. of Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978). “[L]ocal
governments are responsible only for ‘their own illegal acts.’” Connick v. Thompson, 563 U.S. 51,
60 (2011) (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986)). To hold a county
liable under § 1983, a plaintiff must demonstrate (1) the existence of a municipal policy or custom
by which the plaintiff was denied a constitutional right and (2) that the policy or custom was the
moving force behind the constitutional deprivation (i.e. “whether there is a direct causal link
between [the] policy or custom and the alleged constitutional deprivation”). See City of Canton v.
Harris, 489 U.S. 378, 385 (1989); Monell, 436 U.S. at 694 (citations omitted). The requirement
of a policy or custom distinguishes the “acts of the municipality from acts of employees of the
municipality, and thereby make[s] clear that municipal liability is limited to action for which the
municipality is actually responsible.” Pembaur, 475 U.S. at 479.
The defendant argues that the plaintiff has not sufficiently alleged facts supporting a policy
or custom that was the motivating force behind a constitutional deprivation. The only allegations
in the Complaint that may relate to a policy or custom are the following:
Defendant Sheriff Reed, in his official capacity as Mayes County Sheriff, failed to
adequately train and/or supervise his employees, which gave them the time, ability,
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and opportunity to beat [Mr. Wilson] to death without fear of punishment or adverse
consequences from their supervisors. As Mayes County deputies have a long
history of excessively using force against citizens under the cloak of law and their
training, the Mayes County Sheriff’s Office and their staff falsified reports and their
personal accounts about how [Mr. Wilson] sustained his fatal injuries. This was
done as part of a cover up to prevent the Mayes County Sheriff’s Office and its staff
from culpability and the public exposure of the County brutally killing an inmate.
(Doc. 2 at ¶¶ 28, 38).
Other than the conclusory assertion of failure to adequately train and/or supervise, the
plaintiff does not indicate any specific Mayes County policy, custom, or procedure that was the
motivating force behind the alleged constitutional deprivation. Plaintiff has also not alleged any
facts indicating any direct causal link between any policy or obvious absence of training and a
constitutional deprivation. The Supreme Court has reiterated that “[a] municipality’s culpability
for a deprivation of rights is at its most tenuous where a claim turns on a failure to train.” Connick,
563 U.S. at 61. With respect to a failure to train or supervise, a municipality may only be liable
where “the need for more or different training is so obvious, and the inadequacy [in training] so
likely to result in the violation of constitutional rights, that the policymakers of the [municipality]
can reasonably be said to have been deliberately indifferent to the need.” Canton, 489 U.S. at 390.
The Supreme Court has recognized “limited circumstances in which an allegation of a
‘failure to train’ can be the basis for [§ 1983 municipal] liability.” Canton, 489 U.S. at 387. The
“touchstones of this inquiry, therefore, are the risk inadequate training poses and the
[municipality’s] awareness of that risk.” Brown, 227 F.3d at 1288-89. In Connick, the Supreme
Court further elaborated on the deliberate indifference required to impose municipal liability under
§ 1983 for a failure to train:
“‘[D]eliberate indifference’ is a stringent standard of fault, requiring proof
that a municipal actor disregarded a known or obvious consequence of his action.”
Thus, when city policymakers are on actual or constructive notice that a particular
omission in their training program causes city employees to violate citizens’
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constitutional rights, the city may be deemed deliberately indifferent if the
policymakers choose to retain that program. The city’s “policy of inaction” in light
of notice that its program will cause constitutional violations “is the functional
equivalent of a decision by the city itself to violate the Constitution.” A less
stringent standard of fault for a failure-to-train claim “would result in de facto
respondeat superior liability on municipalities. . . .”
A pattern of similar constitutional violations by untrained employees is
“ordinarily necessary” to demonstrate deliberate indifference for purposes of
failure to train. Policymakers’ “continued adherence to an approach that they know
or should know has failed to prevent tortious conduct by employees may establish
the conscious disregard for the consequences of their action – the ‘deliberate
indifference’- necessary to trigger municipal liability.” Without notice in a
particular respect, decision-makers can hardly be said to have deliberately chosen
a training program that will cause violations of constitutional rights.
563 U.S. at 61-62 (internal citations and quotations omitted). The Supreme Court also noted that
it had not foreclosed “the possibility that the unconstitutional consequences of failing to train could
be so patently obvious that a [municipality] could be liable under § 1983 without proof of a preexisting pattern of violations,” but reiterated that such liability is only available in a “rare” case
involving a “narrow range of circumstances.” Id. at 64 (quoting Bryan County, 520 U.S. at 409);
see also id. at 72 (Scalia, J., concurring) (characterizing such claims as “rare”).
While plaintiff alleges that “Mayes County deputies have a long history of excessively
using force against citizens under the cloak of the law and their training,” plaintiff has not alleged
any awareness of the County of a pre-existing pattern of such abuses by detention officials at the
jail. Plaintiff has also not identified similar circumstances of alleged targeted beating of jail
inmates by detention officials. The plaintiff’s § 1983 claims against Sheriff Reed in his official
capacity are dismissed, without prejudice, in order to permit plaintiff to attempt to cure the
deficiencies of her pleading to state a plausible official capacity / Monell claim.
2.
Basis for Claim of Constitutional Violation
The defendant also argues that the plaintiff has not stated plausible claims for constitutional
violations. Because the § 1983 claims against Sheriff Reed are being dismissed without prejudice,
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with an opportunity to re-plead them, the Court will briefly address the defendant’s arguments
regarding the constitutional theories for the alleged underlying constitutional violations asserted
in the Complaint.
The plaintiff has asserted a claim under the Eighth Amendment for cruel and unusual
punishment and under the Fourteenth Amendment for excessive force. The defendant argues that
both of those claims “present only a single legal claim.” (Doc. 10 at 10). The defendant suggests
that the “single legal claim” must be asserted under the Fourth Amendment. (Doc. 13 at 1).
Although the Eighth Amendment applies to convicted persons and not directly to pretrial
detainees, the Due Process Clause of the Fourteenth Amendment mandates that pretrial detainees
not be subjected to any punishment. See Ingram v. Wright, 430 U.S. 651, 671, n.40 (1977); Bell v.
Wolfish, 441 U.S. 520, 536-37 (1979); Blackmon v. Sutton, 734 F.3d 1237, 1241 (10th Cir. 2013).
In addition, the case upon which the defendant’s argument relies – Kingsley v. Hendrickson, __
U.S. __, 135 S. Ct. 2466 (2015) – does not foreclose a Fourteenth Amendment Due Process claim
on behalf of a pretrial detainee for excessive force and/or cruel and unusual punishment. See id.
at 2472-76.
Plaintiff has alleged facts that plausibly support accusations of cruel and unusual
punishment and excessive force, recognized under the Fourteenth Amendment Due Process
Clause. With respect to alleged cruel and unusual punishment, plaintiff’s Complaint includes
factual allegations that Mr. Wilson was savagely beaten by detention officers who had been “very
hostile” and “extremely vocal” with Mr. Wilson because of their “distaste for his alleged crime,”
supporting an allegation that officers intended to punish him, despite his pretrial detainee status.
(Doc. 2 at ¶ 20). There is also no question but that the brutality alleged in the Complaint – which
included numerous broken bones, a boot print to the back, and injuries to his head and torso –
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would state a claim for excessive force. While the plaintiff may not assert a claim under the Eighth
Amendment, she may assert a claim under the Fourteenth Amendment. However, because plaintiff
has not asserted facts sufficient to state her claim against the county under Monell, her claims must
be dismissed without prejudice. If plaintiff decides to file an amended complaint, she may also
re-plead and amend the constitutional grounds for her claims.
B.
State Law Claims
The defendant moves to dismiss the plaintiff’s tort claims under the provisions of the
Oklahoma Governmental Tort Claims Act (OGTCA). First, the defendant notes that the Board of
County Commissioners of Mayes County would be the proper party defendant to a claim under
the OGTCA, and Sheriff Reed is not the proper party on those claims. The OGTCA does not
permit the naming of an individual and requires that the action “shall name the state or political
subdivision against which liability is sought be established.” Okla. Stat. tit. 51, §§ 153(C), 163(C).
Under Oklahoma law, the proper entity in such a suit is the Board of County Commissioners. See
Okla. Stat. tit. 19, § 4.
The defendant further contends that any amendment to substitute or add the Board of
County Commissioners of Mayes County for purposes of plaintiff’s tort claims would be futile,
because the County is immune from liability for any tort claims under the correctional facility
exemption, Okla. Stat. tit. 51, § 155(25). That statute provides that “[t]he state or a political
subdivision shall not be liable if a loss or claim results from provision, equipping, operation or
maintenance of any prison, jail or correctional facility.” Id. The defendant argues that plaintiff’s
tort claims all arise from the County’s operation of the jail. The “provision, equipping, operation
or maintenance” exemption has been very broadly applied in Oklahoma cases. See, e.g., Medina
v. State, 871 P.2d 1379, 1384, n.13 (Okla. 1993); McClain v. Sheriff of Mayes County, 595 F.
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App’x 748, 754 (10th Cir. 2014); Chrisman v. Board of Cty. Comm’rs of Okla. Cty., No. CIV-171309-D, 2018 WL 4291761, *9 (W.D. Okla. Sept. 7, 2018); Sanders v. Creek Cty. Bd. Of Cty.
Comm’rs, No. 17-CV-492-JHP-FHM, 2018 WL 3580770, *4-5 (N.D. Okla. Jul. 25, 2018).
Accordingly, the plaintiff’s state law tort claims are dismissed with prejudice, as the County is
immune as to those claims.1
In response, the plaintiff argues that she may assert a claim under Bosh v. Cherokee Cty.
Building Auth., 305 P.3d 994 (Okla. 2013). The Oklahoma Supreme Court in Bosh recognized
that pretrial detainees have a private right of action under the Oklahoma Constitution, Article II, §
30, for excessive force, notwithstanding immunity under the OGTCA. Bosh, 305 P.3d at 1001.
The plaintiff has not asserted a claim under the Oklahoma Constitution. She will be permitted
leave to amend to attempt to assert such a claim.
IV.
Conclusion
The defendant’s motion to dismiss (Doc. 10) is granted in part. Plaintiff’s state law tort
claims are dismissed with prejudice. All other claims are dismissed without prejudice, and plaintiff
may file an amended complaint as described above. Any amendment shall be filed within 14 days
of the filing of this Order.
SO ORDERED this 27th day of September, 2018.
Plaintiff’s intentional infliction of emotional distress claim is subject to dismissal for the
additional reason that such a claim necessarily excludes good faith conduct, and an employee
committing that tort could not be considered to have been acting within the scope of employment
for purposes of the OGTCA. See, e.g., McMullen v. City of Del City, 920 P.2d 528, 531 (Okla.
Civ. App. 1996); Shaw v. City of Okla. City, 380 P.3d 894, 897 (Okla. Civ. App. 2016).
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