Jocoy v. Grady County Board of County Commissioners et al

Filing 120

ORDER denying 98 Plaintiffs Motion for Summary Judgment as to Gillian Rainey, Elip Moore, and City of Chickasha; granting 100 Defendant Chelsey Gilbertsons Motion for Summary Judgment; stricken as moot 102 Defendant Chelsey Gilbertsons Dauber t Motion to Exclude or Limit the Testimony of Dr. Jay Kovar, M.D. ; granting 103 Defendants Gillian Rainey and Elip Moores Motion for Summary Judgment ; granting 104 Defendant City of Chickashas Motion for Summary Judgment. Signed by Honorable Robin J. Cauthron on 1/17/14. (lg)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
BETH D. JOCOY, an individual,
Plaintiff,
vs.
CITY OF CHICKASHA;
MACK DONALD ALEXANDER;
GILLIAN RAINEY, an individual;
ELIP MOORE, an individual;
JOHN DOE #2, an individual; and
CHELSEY GILBERTSON, D.O., an
individual,
Defendants.

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Case No. CIV-12-684-C

MEMORANDUM OPINION AND ORDER
I. BACKGROUND
On the evening of March 11, 2011, a Mr. Alexander was taken into custody by the
Chickasha Police Department for the crime of public intoxication. After his arrest, Mr.
Alexander informed the officers that he had ingested numerous controlled substances.
Concerned for his health and well-being, the officers transported Mr. Alexander to Grady
County Memorial Hospital. Once Mr. Alexander arrived at Grady County Memorial
Hospital, he was evaluated by Defendant, Dr. Chelsey Gilbertson, who was the attending
emergency room doctor and administratively in charge of the emergency room’s operations
on that day.
After examining Mr. Alexander, Defendant Gilbertson determined that his medical
needs exceeded those available at the hospital and that he should be transported to an

Oklahoma City hospital. Defendant Gilbertson, the Chickasha Police Department, and the
Chickasha Fire Department had discussions regarding transportation of Mr. Alexander to
Oklahoma City. The fire chief who was in charge of the transportation determined that law
enforcement officers should accompany Mr. Alexander during the transport. Ultimately, the
decision was made by law enforcement to release Mr. Alexander from custody. Thereafter,
Mr. Alexander assaulted Plaintiff, a nurse on duty in the emergency room, causing her injury.
Following that incident, Plaintiff filed the present action, raising claims of battery against
Defendant Alexander, negligence against Defendant Gilbertson and a violation of 42 U.S.C.
§ 1983 against the governmental Defendants.
II. STANDARD OF REVIEW
Summary judgment is appropriate if the pleadings and affidavits show there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(c). “[A] motion for summary judgment should be granted
only when the moving party has established the absence of any genuine issue as to a material
fact.” Mustang Fuel Corp. v. Youngstown Sheet & Tube Co., 561 F.2d 202, 204 (10th Cir.
1977). The movant bears the initial burden of demonstrating the absence of material fact
requiring judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986). A fact is material if it is essential to the proper disposition of the claim. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If the movant carries this initial burden,
the nonmovant must then set forth “specific facts” outside the pleadings and admissible into
evidence which would convince a rational trier of fact to find for the nonmovant.
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Fed. R. Civ. P. 56(e). These specific facts may be shown “by any of the kinds of evidentiary
materials listed in Rule 56(c) except the mere pleadings themselves.” Celotex, 477 U.S. at
324. Such evidentiary materials include affidavits, deposition transcripts, or specific
exhibits. Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir. 1992).
“The burden is not an onerous one for the nonmoving party in each case, but does not at any
point shift from the nonmovant to the district court.” Adler v. Wal-Mart Stores, Inc., 144
F.3d 664, 672 (10th Cir. 1998). All facts and reasonable inferences therefrom are construed
in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986).
III. DISCUSSION
A. Defendant Gilbertson
As noted above, Plaintiff’s sole claim against Defendant Gilbertson is that she was
negligent in a manner that caused Plaintiff’s injury. Arguing that the undisputed material
facts entitle her to relief, Defendant Gilbertson filed a Motion for Summary Judgment
pursuant to Fed. R. Civ. P. 56. In support of her Motion, Defendant Gilbertson argues the
undisputed facts demonstrate she owed no duty to protect Plaintiff from Mr. Alexander’s
criminal attack and alternatively that Mr. Alexander’s attack was not foreseeable and
therefore Defendant Gilbertson did not act or fail to act in a manner that permitted Plaintiff’s
injury.
“The threshold question in any suit based on negligence is whether defendant had a
duty to the particular plaintiff alleged to have been harmed.” Rose v. Sapulpa Rural Water
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Co., 1981 OK 85, ¶ 17, 631 P.2d 752, 756. Oklahoma follows “[t]he general rule . . . that,
absent special circumstances, no duty is imposed on a party to anticipate and prevent the
intentional or criminal acts of a third party.” Henry v. Merck & Co., Inc., 877 F.2d 1489,
1492 (10th Cir. 1989). Oklahoma recognizes there are exceptions to this general rule stating:
there are situations in which a reasonable man is required to anticipate and
guard against intentional, even criminal misconduct. These situations arise
where the actor is under a special responsibility toward the one who suffers the
harm or where the actor’s own affirmative act has created or exposed the other
to a recognizable high degree of risk of harm through such misconduct, which
a reasonable man would take into account.
Joyce v. M & M Gas Co., 1983 OK 110, ¶ 5, 672 P.2d 1172, 1173-74. Thus, to impose a
duty on Defendant Gilbertson to protect Plaintiff from the intentional act of Mr. Alexander,
there must be evidence from which a reasonable jury could find (1) Defendant Gilbertson had
a special responsibility to Plaintiff; or (2) Defendant Gilbertson engaged in an affirmative
act which created or exposed Plaintiff to a recognizable high degree of risk of harm.
1. Special Responsibility
In an effort to create a “special responsibility” on the part of Defendant Gilbertson,
Plaintiff argues that Oklahoma law creates a relationship of employer/employee between
herself and Defendant Gilbertson because Gilbertson was the physician in charge of the ER,
and consequently, Plaintiff, as an ER nurse, acted under Defendant Gilbertson’s orders. In
support of her arguments, Plaintiff relies on Weldon By & Through Weldon v. Seminole
Mun. Hosp., 1985 OK 94, 709 P.2d 1058, and Aderhold v. Bishop, 1923 OK 1141, 221 P.
752.

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Neither case supports Plaintiff’s position. In Weldon, the issue was whether a hospital
could be held liable for allegedly negligent care provided by a physician who had privileges
at the hospital. The plaintiff in Weldon argued for liability based on the fact that a nurse,
who was undisputedly a hospital employee, had assisted the physician. The Oklahoma
Supreme Court noted in dicta that the nurse under those circumstances was a loaned servant
to the physician. Weldon, 709 P.2d at 1061. Aderhold is similar in that the plaintiff in that
case sought to hold a hospital liable for actions of a physician not employed by the hospital.
The plaintiff argued that because the nurse, an employee of the hospital, had allegedly acted
negligently, that the hospital should be held liable. The Oklahoma Supreme Court rejected
the plaintiff’s argument, noting that the nurse acted solely at the direction of the doctor and
so was a loaned servant.
Here, Plaintiff has failed to offer any fact from which a reasonable jury could find that
Defendant Gilbertson exercised sole control over her. Indeed, Plaintiff has offered no
evidence or argument on what authority, if any, Defendant Gilbertson exercised any control
over Plaintiff. The only evidence on the issue shows that Plaintiff was not providing primary
care for Mr. Alexander until about 20 minutes before he struck her, that Plaintiff had had
only limited conversations with Defendant Gilbertson about Mr. Alexander, and those
conversations were about working out details regarding Mr. Alexander’s transport to
Oklahoma City. Plaintiff does not argue that when she went to check on Mr. Alexander and
was struck that she had done so at the request of Defendant Gilbertson. Rather, Plaintiff’s
actions in caring for Mr. Alexander arose from her duties as a nurse employed by the
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hospital. Based on the undisputed facts before the Court, no reasonable jury could find that
Defendant Gilbertson had a “special relationship” to Plaintiff to the extent that Defendant
Gilbertson owed Plaintiff a duty.
Even had the Court found the existence of a “special relationship,” Plaintiff’s
argument would still fail. Even where there exists a master/servant or employer/employee
relationship, the case must still fall within that unique set of circumstances where an
employer has a duty to protect an employee from criminal attacks. Plaintiff relies on the
Oklahoma Supreme Court’s decision in Taylor v. Hynson, 1993 OK 93, 856 P.2d 278, where
the plaintiff visited a fast food restaurant and was attacked by three patrons of the restaurant.
The plaintiff in Taylor argued the restaurant was negligent in failing to expel the three
patrons from its premises after becoming aware they posed a risk for violence. In
overturning the trial court’s grant of summary judgment in favor of the defendant, the
Oklahoma Supreme Court recognized that as a general rule an employer has no duty to
protect its employees from the criminal acts of third parties. Id. at 281. The Oklahoma Court
recognized an exception exists where the employer has knowledge that danger to an
employee is imminent. Id.
After considering the undisputed material facts, the Court finds no reasonable jury
could find that Defendant Gilbertson had knowledge that Plaintiff faced imminent danger.
The following facts are undisputed: Defendant Gilbertson evaluated Mr. Alexander upon his
arrival at the ER. During that evaluation, Mr. Alexander showed no sign of aggression or
combativeness. Defendant Gilbertson checked on Mr. Alexander several times while he was
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in the ER. At no time did Mr. Alexander exhibit any sign of aggression or combativeness.
Defendant Gilbertson testified the ER is a small area and if Mr. Alexander had been
aggressive or combative toward anyone while there, it would have been noticed. Danny
Wright was the nurse assigned to care for Mr. Alexander during his stay at the ER. Mr.
Wright has provided an affidavit noting that at no time during the stay in the ER did Mr.
Alexander exhibit any signs of aggression. Mr. Wright stated he offered no warning to
Plaintiff about Mr. Alexander because there was no need. Plaintiff testified that she was
confident that if Mr. Wright had been concerned that Mr. Alexander posed a danger, that Mr.
Wright would have warned her.
Plaintiff argues that Officer Rainey warned Defendant Gilbertson that Mr. Alexander
was dangerous prior to removing the handcuffs. However, Officer Rainey testified that,
based on her experience, she was concerned that if Mr. Alexander had taken PCP, because
of his size he could be a problem. Plaintiff notes that in the police report she prepared,
Officer Rainey stated she did not feel comfortable removing the restraints from Mr.
Alexander. However, that report explains that Officer Rainey’s concerns were based on
comments Mr. Alexander made about law enforcement, not about medical personnel. Even
viewed in the light most favorable to Plaintiff, this evidence is insufficient for a reasonable
jury to find that Defendant Gilbertson was aware that Mr. Alexander posed an imminent
threat. Plaintiff also offers a Facebook message from Officer Rainey. However, that
message is clearly hearsay and as such inadequate to create a question of fact. See Adams
v. Am. Guar. & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000) (“Hearsay testimony
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that would be inadmissible at trial cannot be used to defeat a motion for summary judgment
because ‘a third party’s description of a witness[’s] supposed testimony is “not suitable grist
for the summary judgment mill.”’”) (citations omitted)). Even were the Court to consider
it, the message offers no insight into what Defendant Gilbertson knew. Rather, the message
focuses solely on Officer Rainey’s perceptions.
Even when viewed in the light most favorable to Plaintiff, the undisputed material
facts demonstrate that Defendant Gilbertson had no reason to believe Plaintiff faced
imminent danger from Mr. Alexander. Consequently, even were the Court to find that
Defendant Gilbertson had a “special relationship” with Plaintiff, there was no duty on
Defendant Gilbertson to protect Plaintiff from Mr. Alexander.
2. Special Circumstances
Plaintiff’s alternative theory is that Defendant Gilbertson engaged in an affirmative
act which created a duty to protect Plaintiff and thereby created a special circumstance which
imposed a duty of care. In support of her argument, Plaintiff points to a number of alleged
affirmative acts by Defendant Gilbertson. According to Plaintiff, Defendant Gilbertson led
the government defendants to leave Mr. Alexander unattended in the ER and then failed to
take further precautionary measures such as: ordering medical restraints, sedating or
otherwise medicating Mr. Alexander, performing a proper mental health evaluation, properly
assessing the risks Mr. Alexander posed to himself and others, and/or adhering to reasonable
standards of care for an impaired person.

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In support of her position, Plaintiff relies on Joyce v. M & M Gas Co., 1983 OK 110,
672 P.2d 1172. In Joyce, an employee left the keys in his truck at night. The truck was
stolen and involved in an accident which injured the plaintiff. The plaintiff sued M & M,
arguing the employee was negligent in leaving the keys in the truck. The Oklahoma
Supreme Court rejected the plaintiff’s claim, noting that even if the employee were negligent,
there was no special relationship or circumstance sufficient to create a duty. Id. at 1173. As
noted above, the undisputed facts are such that no reasonable jury could find a special
relationship or circumstance existed to impose a duty on Defendant Gilbertson to protect
Plaintiff from Mr. Alexander’s criminal conduct.
Although not relied on by Plaintiff, Lowery v. Echostar Satellite Corp., 2007 OK 38,
160 P.3d 959, addresses some of the arguments raised by Plaintiff. The Lowery court noted
that even where there is no special relationship, there may be liability, but only if the harm
to plaintiff is foreseeable. Id. at ¶ 13-14, 160 P.3d at 964. Thus, Plaintiff’s claim must fail
because based on the undisputed facts noted herein, no reasonable jury could find Mr.
Alexander’s actions were foreseeable. Despite Plaintiff’s arguments to the contrary, the
evidence of record is clear that Mr. Alexander’s attack on Plaintiff was a complete surprise
to everyone. Defendant Chelsey Gilbertson’s Motion for Summary Judgment (Dkt. No. 100)
will be granted.
B. Defendants Gillian Rainey and Elip Moore
Plaintiff seeks to impose liability on Defendants Rainey and Moore under a danger
creation test. “In general, state actors may only be held liable under § 1983 for their own
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acts, not the acts of third parties.” Robbins v. Oklahoma, 519 F.3d 1242, 1251 (10th Cir.
2008) (citing DeShaney v. Winnebago Cnty. of Dep’t of Soc. Servs., 489 U.S. 189, 197
(1989)). There is an exception to this rule known as the “danger creation exception.” “The
‘danger creation’ exception to this rule applies only when ‘a state actor affirmatively acts to
create, or increases a plaintiff’s vulnerability to, or danger from private violence.’” Robbins,
519 F.3d at 1251 (citing Currier v. Doran, 242 F.3d 905, 923 (10th Cir. 2001)). To make a
case under the danger creation theory, Plaintiff must show:
(1) state actors created the danger or increased the plaintiff’s vulnerability to
the danger in some way, (2) the plaintiff was a member of a limited and
specifically definable group, (3) the defendants’ conduct put the plaintiff at
substantial risk of serious, immediate, and proximate harm, (4) the risk was
obvious or known, (5) the defendants acted recklessly in conscious disregard
of that risk, and (6) the conduct, when viewed in total, shocks the conscience.
Robbins, 519 F.3d at 1251 (citing Ruiz v. McDonnell, 299 F.3d 1173, 1182-83 (10th Cir.
2002)).
Although Plaintiff’s evidence on many of the elements is sparse, the lack of evidence
to establish the 4th or 6th element is dispositive. Any suggestion that releasing Mr.
Alexander from custody would pose a substantial risk of serious, immediate, and proximate
harm arises from the rhetoric of Plaintiff’s counsel rather than the facts of the case.
Presented with the undisputed material facts set forth above, no reasonable jury could find
that any risk to Plaintiff from releasing Mr. Alexander was obvious or known. As for the 6th
element, the Tenth Circuit has set forth the standard for finding conduct conscience shocking:
[T]o satisfy the “shock the conscience” standard, a plaintiff must do more than
show that the government actor intentionally or recklessly caused injury to the
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plaintiff by abusing or misusing government power. That is, the plaintiff must
demonstrate a degree of outrageousness and a magnitude of potential or actual
harm that is truly conscience shocking. The level of conduct required to
satisfy this additional requirement cannot precisely be defined, but must
necessarily evolve over time from judgments as to the constitutionality of
specific government conduct. We do know, however, that the “shock the
conscience” standard requires a high level of outrageousness, because the
Supreme Court has specifically admonished that a substantive due process
violation requires more than an ordinary tort and that merely allowing
unreasonable risks to persist in the workplace is not necessarily conscience
shocking.
Uhlrig v. Harder, 64 F.3d 567, 574 (10th Cir. 1995) (citing Collins v. City of Harker Heights,
Tex., 503 U.S. 115, 128 (1992)). Applying this standard, the Court finds no reasonable jury
could find the conduct of Defendants Rainey and Moore shocks the conscience.
Plaintiff argues that Defendants Rainey and Moore followed a policy or custom of
Defendant City of Chickasha and that led to her harm. However, for that argument to give
rise to liability, Plaintiff must show that the policy or custom caused a constitutional harm.
For the reasons set forth above, it is clear that no reasonable jury could find that the decision
to release Mr. Alexander constitutes a constitutional harm. Thus, regardless of whether
Defendants Rainey and Moore were implementing a policy or custom, there can be no
liability. See City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (“If a person has
suffered no constitutional injury at the hands of the individual police officer, the fact that the
departmental regulations might have authorized the use of constitutionally excessive force
is quite beside the point.”) (emphasis original).
Accordingly, Defendants, Gillian Rainey and Elip Moore’s Motion for Summary
Judgment (Dkt. No. 103) will be granted.
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C. Defendant City of Chickasha
Plaintiff argues that Defendant City of Chickasha is liable to her under the same
creation of danger theory as outlined above against Defendants Rainey and Moore and that
Defendant City of Chickasha employed a policy or custom of failing to transport prisoners
from Grady Memorial Hospital to other medical providers. Both of Plaintiff’s theories fail.
As noted above, the undisputed facts preclude a reasonable jury from finding in
Plaintiff’s favor on the danger creation theory. As for the policy or custom theory, the Tenth
Circuit has held “[a] municipality may not be held liable where there was no underlying
constitutional violation by any of its officers.” Hinton v. City of Elwood, Kan., 997 F.2d
774, 782 (10th Cir. 1993) (citing City of Los Angeles, 475 U.S. at 799; Apodaca v. Rio
Arriba Cnty. Sheriff’s Dep’t, 905 F.2d 1445, 1447-48 (10th Cir. 1990); Watson v. City of
Kan. City, Kan., 857 F.2d 690, 697 (10th Cir. 1988)). Even if Plaintiff were correct in her
assertion of the existence of a policy to not transport, her claim would fail as there is no
evidence that policy led to the harm. Consequently, Defendant City of Chickasha’s Motion
for Summary Judgment will be granted.
D. Defendant John Doe #2
Based on its resolution of Plaintiff’s claims against Defendants Rainey, Moore, and
City of Chickasha, the Court finds Plaintiff’s claims against Defendant John Doe #2 fail to
state a claim for relief. Plaintiff’s sole allegation against Defendant John Doe #2 is as
follows:

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John Doe # 2 is a police officer with the Chickasha Police Department who is
responsible for training and communicating policies and procedures to Officer
Rainey and upon reasonable belief is a resident of Grady County, Oklahoma.
Pl.’s Am. Compl., Dkt. No. 48, ¶ 14. For the reasons set forth herein, even had Plaintiff
named and served this individual, there could be no claim against her/him. Consequently,
John Doe #2 will be dismissed with prejudice.
E. Defendant Alexander
As noted above, all of Plaintiff’s claims against Defendant Alexander arise under
Oklahoma law. Although Defendant Alexander has, pro se, filed an Answer to the
Complaint and Amended Complaint, he has taken no other action in this matter. Defendant
Alexander has not filed witness or exhibit lists, filed Motions or joined in the Motions of any
Co-Defendant. In short, it appears that Plaintiff’s case against Mr. Alexander is in its
infancy. As the disposition herein has resolved all federal claims, the questions arises
whether the Court should exercise supplemental jurisdiction over Plaintiff’s claims against
Mr. Alexander. See 28 U.S.C. § 1367(c)(3). Because Plaintiff originally filed this action in
Grady County, it appears that Plaintiff, her counsel, Mr. Alexander, and any necessary
witnesses live closer to that court than this Court. Thus convenience to the parties supports
dismissal. Given the limited participation of Mr. Alexander in this Court, concerns of
judicial economy weigh against exercising supplemental jurisdiction.
Plaintiff’s claims against Mr. Alexander will be dismissed without prejudice.
IV. CONCLUSION

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Accordingly,

For the reasons set forth herein, Defendant Chelsey Gilbertson’s Motion for Summary
Judgment (Dkt. No. 100), Defendants Gillian Rainey and Elip Moore’s Motion for Summary
Judgment (Dkt. No. 103), and Defendant City of Chickasha’s Motion for Summary Judgment
(Dkt. No. 104) are GRANTED. Plaintiff’s Motion for Summary Judgment as to Gillian
Rainey, Elip Moore, and City of Chickasha (Dkt. No. 98) is DENIED. Defendant Chelsey
Gilbertson’s Daubert Motion to Exclude or Limit the Testimony of Dr. Jay Kovar, M.D.
(Dkt. No. 102) is STRICKEN as moot. Plaintiff’s claims against John Doe #2 are
DISMISSED with prejudice.

Plaintiff’s claims against Defendant Alexander are

DISMISSED without prejudice. A separate judgment shall issue.
IT IS SO ORDERED this 17th day of January, 2014.

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