Chasten v. Oklahoma Department of Corrections et al
Filing
96
ORDER denying 89 defendant Lee's motion to dismiss or, in the alternative, for summary judgment. See order for specifics. Signed by Honorable Joe Heaton on 09/14/2011. (lam)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
JANICE CHASTEN, Personal
Representative for the Estate of
Brian Abernathy,
Plaintiff,
vs.
STATE OF OKLAHOMA ex rel.
The Oklahoma Department of Corrections,
ET AL.,
Defendants.
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NO. CIV-09-0509-HE
ORDER
Plaintiff filed this § 1983 action on May 14, 2009, alleging defendants violated Brian
Abernathy’s constitutional rights by failing to protect him from a known and substantial risk
of serious harm. She alleges Abernathy was killed by members of the United Aryan
Brotherhood—a white supremacist group—on March 13, 2008, while he was incarcerated
at the Oklahoma State Reformatory (“OSR”).
Plaintiff originally asserted claims against the Oklahoma Department of Corrections,
several identified defendants, and ten John and Jane Does.1 On March 11, 2010, she filed a
Second Amended Complaint substituting Correction’s employee Malenda Brooks for the
Doe defendants.2 On November 24, 2010, plaintiff filed a motion for leave to further amend
and substitute Gail Lee for Brooks. Defendants objected on the basis that any claims against
1
Currently, Eric Franklin, Shaun Hubbard, Rhett Schuyler Bull, and Gail Lee are
defendants in this case. Defendants Franklin, Hubbard, and Lee are represented by the
Oklahoma Attorney General’s (“OAG’s”) office.
2
Malenda Brooks was represented by the OAG’s office.
Lee were barred by the applicable statute of limitations. The court permitted the amendment,
noting that grounds for avoiding the application of the limitations defense potentially existed
and that Lee would have the opportunity to raise the defense in due course. Order, January
6, 2011 [Doc. #57]. Plaintiff filed her Third Amended Complaint on January 13, 2011,
asserting claims against Lee and dropping Brooks as a defendant. [Doc. #61]. Lee moved to
dismiss on limitations grounds. The court granted the motion but gave plaintiff leave to
amend. See Order, May 9, 2011 [Doc. #75]. On May 19, 2011, plaintiff filed her Fourth
Amended Complaint alleging additional matters directed to the limitations defense. [Doc.
#76]. Lee has now moved to dismiss or, alternatively, for summary judgment on the basis
that the statute of limitations bars the plaintiff’s claim against her.
Summary Judgment Standard
The Fourth Amended Complaint alleges facts which, if true, state one or more grounds
for avoiding Lee’s statute of limitations defense. As a result, the essential inquiry here is
whether there is a basis for summary judgment on the limitations defense. The parties’
submissions, for the most part, address the current motion in that vein. Summary judgment
is appropriate only when the moving party demonstrates that no genuine dispute of material
fact exists and that party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).
When a defendant moves for summary judgment on an affirmative defense, the defendant
must show that there is no disputed fact concerning the asserted defense. Hutchinson v.
Pfeil, 105 F.3d 562, 564 (10th Cir. 1997). If the plaintiff identifies specific, material facts
in dispute, then summary judgment cannot be granted. See id. All inferences from the
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evidence are to be viewed in the light most favorable to the plaintiff as the non-moving party.
Mountain Highlands, LLC v. Hendricks, 616 F.3d 1167, 1169-70 (10th Cir. 2010).
Discussion
The statute of limitations applicable to a § 1983 claim is based on the personal injury
statute of the state in which the district court sits. Mondragon v. Thompson, 519 F.3d 1078,
1082 (10th Cir. 2008). In Oklahoma, that period is two years from the date the claim
accrues. Meade v. Grubbs, 841 F.2d 1512, 1524 (10th Cir. 1988). In the circumstances of
this case, the limitations period expired on March 13, 2010, unless some basis for extending
or avoiding that bar exists. Defendant Lee argues that the undisputed facts show the absence
of any basis for avoiding the impact of the statute and that, as she was joined as defendant
after March 13, 2010, judgment should therefore be entered in her favor. In particular, Lee
argues the undisputed facts show there is no basis for “relation back” under Rule 15(c), or
for equitable tolling of the time period. Plaintiff disputes that assertion and argues in addition
that a basis for equitable estoppel is supported by the evidence.
1. Relation back
Rule 15(c)(1)(C) provides that an amendment changing a defendant relates back to
the date of the original complaint if the claim against the new defendant arose out of the same
transaction or occurrence as the claim in the original complaint, the new defendant had notice
of the action such that its defense on the merits is not prejudiced, and the new defendant had
reason to know that, but for a mistake as to the party’s proper identity, it should have been
included in the suit. Further, the defendant to be added must have had the requisite
3
knowledge within 120 days of the filing of the original complaint.3
Here, there is no dispute that the claim against Defendant Lee arose out of the same
transaction or occurrence as the claim in the original complaint. And Lee has not produced
any evidence suggesting that she lacked knowledge of the case or of the facts which
indicated she was a potential defendant, nor do her assertions of undisputed fact even address
those matters.4 Rather, she argues only that the substitution of Lee is, in substance, the
assertion of a new claim outside the scope of Rule 15(c)’s relation back provisions. She relies
3
An amendment to a pleading relates back to the date of the original pleading when:
(A) the law that provides the applicable statute of limitations allows relation
back;
(B) the amendment asserts a claim or defense that arose out of the conduct,
transaction, or occurrence set outor attempted to be set out--in the original
pleading; or
(C) the amendment changes the party or the naming of the party against
whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the
period provided by Rule 4(m) for serving the summons and complaint, the
party to be brought in by amendment:
(i) received such notice of the action that it will not be prejudiced in
defending on the merits; and
(ii) knew or should have known that the action would have been
brought against it, but for a mistake concerning the proper party's
identity.
Fed. R. Civ. P. 15(c)(1)(C).
4
When the facts are undisputed, Rule 15(c) presents a purely legal question. Garrett v.
Fleming, 362 F.3d 692, 695 (10th Cir. 2004). Here, however, there are no facts in the
record concerning whether Lee did or did not have the knowledge required to satisfy Rule
15(c). Consequently, whether Defendant Lee had notice of the suit and should have
known she was a proper defendant remain unresolved factual issues.
4
on the rule from Garrett v. Fleming, 362 F.3d 692, 696 (10th Cir. 2004), that a “plaintiff’s
lack of knowledge of the intended defendant’s identity is not a ‘mistake concerning the
identity of the proper party’ within the meaning of [Rule 15(c)(1)(C)(ii)].”
Garrett held that substituting a named defendant for a John Doe defendant after the
statute of limitations expired did not allow for relation-back because there was no mistake
of identity; instead, the plaintiff simply did not know who the correct party was. Id. at 69697. Here, the circumstances are different. The Second Amended Complaint, which added
Brooks as a named defendant and was filed within the limitations period, alleged that she was
“the classification officer who assigned Abernathy to a general population unit . . . [Doc. #37,
¶ 10]. Later discovery indicated that Brooks was not the “classification” officer but that Lee
was, prompting plaintiff’s effort to substitute Lee. The circumstances thus involve a situation
where plaintiff had a mistaken belief as to who the classification officer was, as opposed to
simply not knowing at all. As a result, this was a mistake in the identity of the proper party
and therefore within the scope of Rule 15(c)(1)(C)(ii).5
2. Equitable tolling and estoppel
In a § 1983 action, equitable doctrines of tolling and estoppel are governed by state
law; however, federal courts can provide additional equitable relief in extraordinary
circumstances. See Alexander v. Oklahoma, 382 F.3d 1206, 1216-17 & n.5 (10th Cir. 2004).
5
That plaintiff was mistaken as to the proper defendant’s identity is also evidenced by a
February 2, 2010, email from plaintiff’s counsel to defense counsel stating that plaintiff intended
to file suit against the person who classified Abernathy. [Doc. #76-4].
5
Under Oklahoma law, a defendant is estopped from asserting a statute of limitations exists
if defendant has engaged in “false, fraudulent or misleading” conduct which has prevented
the plaintiff from bringing a timely suit. Jarvis v. City of Stillwater, 732 P.2d 470, 472-73
(Okla. 1987).
Defendant’s primary argument against the application of equitable tolling or estoppel
is that she did nothing to mislead plaintiff. The complained-of conduct is attributable to the
original defendants and the Oklahoma Attorney General’s office; the OAG did not yet
represent Lee when the communications in question occurred. However, the concealing or
misleading acts of one defendant can prevent a later-added defendant from raising the statute
of limitations defense if those actions prevented the plaintiff from suing the correct party.
See, e.g., Travelers Indem. Co. v. United States ex rel. Construction Specialties Co., 382 F.2d
103, 106 (10th Cir. 1967) (allowing the silence of an original defendant to prevent the
substituted defendant from asserting a statute of limitations defense when the original
defendant knew it was not the proper party to be sued and it waited until after the limitations
period expired to inform the plaintiff). And, the acts of an agent can prevent the agent’s
principal from asserting a statute of limitations defense. E.g. Hart v. Bridges, 591 P.2d 1172,
1173 (Okla. 1979). Consequently, any fraudulent, concealing, or misleading act by the
OAG’s office while it was representing the original defendants in this suit can prevent
Defendant Lee from asserting the statute of limitations defense.
Viewing the evidence in the light most favorable to the plaintiff, there is a genuine
dispute over whether the original defendants or the Oklahoma Attorney General’s office
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misled the plaintiff as to the identity of the person responsible for Abernathy’s cell
assignment. Plaintiff requested that Defendant Eric Franklin “[i]dentify each person at OSR
responsible for assigning Brian Abernathy to a housing unit in March 2008.” Interrogatory
No. 5, Doc. #76-1. On October 9, 2009, Franklin answered “[t]he Oklahoma State
Reformatory Records Department, per policy, is responsible for the random cell assignment.”
Id. Defendant Franklin supplemented this response on December 9, 2009 with the names of
the individuals who worked in the records department. See Doc. #76-3, p.1.6 Malenda
Brooks was among the individuals identified; Gail Lee was not.
On February 4, 2010, plaintiff’s counsel sent an email to defense counsel stating that
plaintiff intended to file an amended complaint to add “the individuals who classified
Abernathy at OSR.” [Doc. #76-4]. On March 9, 2010—two days before plaintiff filed her
Second Amended Complaint and four days before the limitations period expired—defense
counsel sent an email to plaintiff’s counsel identifying Malenda Brooks as “the individual
who assigned Abernathy to his bed.” [Doc. #76-5]. Plaintiff then filed her Second Amended
Complaint on March 11, 2010 alleging that Malenda Brooks “was the classification officer
who assigned Abernathy to a general population housing unit at OSR on March 13, 2008.”
[Doc. #37, ¶ 10].
Plaintiff’s Interrogatory No. 5 can be understood as requesting the identity of all
persons responsible for Brian Abernathy’s cell assignment at OSR. This includes not only
6
The five individuals identified in the supplemental response were Vickie Wilkins, Evonna
Young, Malenda Brooks, Nita Murley, and Shawn Hooper.
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the person who randomly assigned Abernathy to a cell in a general population unit, but also
the person who classified Abernathy to live in a general population unit in the first place, and
any other person involved in that entire process. Consequently, defendant’s supplemental
response excluding Gail Lee could have misled the plaintiff into believing Gail Lee was not
responsible for Abernathy’s cell assignment or classification at all.
Additionally, at least by the time of the February 4, 2010 email, defense counsel was
aware that plaintiff intended to sue the person or persons responsible for classifying
Abernathy. The defense should have at least suspected that plaintiff considered “assigning”
and “classifying” as part of the same process. The email identifying Brooks as the
assignment officer four days before the statute of limitations expired could have misled the
plaintiff to believe that Brooks was the person responsible for the decision to place
Abernathy in a general population unit.
3. Reasonable diligence
Defendant Lee also argues that equitable relief should be unavailable to the plaintiff
because she was not diligent in pursuing her claim. In order to assert equitable estoppel, the
plaintiff must have exercised reasonable diligence. Hillers v. Local Fed. Sav. & Loan Ass’n,
232 P.2d 626, 630 (Okla. 1951). Lee contends that the deposition of Matthew Scott McCarter
and a Cell Assignment Form gave plaintiff notice that Gail Lee was a potential defendant in
this case several months before the limitations period expired and that by failing to add Lee
until after its expiration the plaintiff has failed to exercise reasonable diligence.
McCarter was asked in his deposition on August 27, 2009 whether he knew the
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identity of the case manager in charge of assigning Abernathy to his unit and cell. He replied,
“No. Gail Lee ran D2 Pod, so if she assigned him – it would be her who assigned him his
house. Or it could have been a case manager or a unit manager. I would say it would be Gail
Lee.” [Doc. #89-1, pp. 52-53]. The Cell Assignment Form [Doc. #89-3] documents
Abernathy’s conduct and appears to be used in determining whether he should be allowed
to house with other inmates. The form is dated January 9, 2002 and contains the following
notation at the bottom of the page 2: “Gail Lee 3-12-08 NAR DUE 3-27-08.”
This evidence does not establish as a matter of undisputed fact that plaintiff had notice
that Gail Lee was a potential defendant in this case. McCarter’s testimony is equivocal, and
subsequent discovery identified Malenda Brooks (incorrectly) as the person responsible for
Abernathy cell assignment. Additionally, the cell assignment form is ambiguous and dated
over six years before the events underlying this suit. The bald reference to Lee suggests very
little, if anything, concerning Lee’s role in Abernathy’s cell assignment. It cannot be said
as a matter of law that plaintiff knew Lee was a potential defendant and failed to diligently
pursue her claim against the defendant.
Conclusion
Factual disputes exist as to whether the statute of limitations will bar plaintiff’s claim
against Lee. Whether defendant had the knowledge required to satisfy Fed. R. Civ. P. 15(c)
is unresolved. Additionally, some evidence suggests the original defendants misled the
plaintiff about the identity of the party responsible for Abernathy’s cell assignment; and,
consequently, that Lee should be prevented from asserting a limitations defense on equitable
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grounds. Because of these material factual disputes, summary judgment based on the
limitations defense is not warranted.
Defendant Lee’s motion to dismiss or, in the alternative, for summary judgment [Doc.
#89] is DENIED.
IT IS SO ORDERED.
Dated this 14th day of September, 2011.
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