Bishop v. Department of Human Services et al

Filing 95

ORDER granting 54 Motion to Dismiss Second Amended Complaint (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
TIMOTHY MARVIN BISHOP,
Plaintiff,
vs.
THE STATE OF OKLAHOMA, ex rel.,
THE OKLAHOMA DEPARTMENT OF
HUMAN SERVICES, an agency of the
State of Oklahoma et al.,
Defendants.

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Case No. CIV-13-171-D

ORDER
Before the Court is the Motion to Dismiss Second Amended Complaint of Defendant
Oklahoma Department of Human Services (DHS) [Doc. Nos. 54-55]. Plaintiff has responded to the
motion [Doc. No. 66] and DHS has replied [Doc. No. 84]. Therefore, the matter is fully briefed and
ready for decision.
I.

Procedural History
Plaintiff brings two claims against DHS in his Second Amended Complaint. In his first

claim for relief Plaintiff alleges a violation of the Oklahoma Governmental Tort Claims Act
(GTCA), Okla. Stat. tit. 51, § 151 et seq. In his third claim for relief Plaintiff alleges a claim for
“battery/excessive force” and seeks to impose respondeat superior liability on DHS relying on the
Oklahoma Supreme Court’s decision in Bosh v. Cherokee County Bldg. Authority, 305 P.3d 994
(Okla. 2013).1
DHS moves to dismiss the claims alleged against it in Plaintiff’s Second Amended

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Plantiff’s second claim for relief is brought against individual defendants. Those individual defendants have
separately moved to dismiss the Second Amended Complaint and their motion is addressed by separate order.

Complaint pursuant to Fed. R. Civ. P. 12(b)(6). DHS contends that Plaintiff has failed to state
a claim upon which relief may be granted under the GTCA because Plaintiff did not timely comply
with the notice of claim and commencement of action requirements under the GTCA. DHS further
seeks dismissal on grounds it is exempt from liability under the provisions of the GTCA. In
addition, DHS seeks dismissal of Plaintiff’s claim for “battery/excessive force” brought against it
pursuant to Bosh on grounds Plaintiff’s claim falls outside the scope of Bosh or, alternatively, that
any claim under Bosh is time-barred.
This Court previously addressed the sufficiency of the allegations of the Amended Complaint
as to these same two claims against DHS and granted Plaintiff leave to file a second amended
complaint to address the deficiencies noted. See Order [Doc. No. 39]. For the reasons set forth
below, the Court finds the allegations of the Second Amended Complaint fail to establish any
plausible claims for relief against DHS and that dismissal of Plaintiff’s claims against DHS is
warranted.
II.

Standard Governing Rule 12(b)(6) Motion
To avoid dismissal pursuant to Rule 12(b)(6), a complaint “must contain enough factual

allegations to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007); Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008). To state
a plausible claim, a plaintiff has the burden to frame a “complaint with enough factual matter (taken
as true) to suggest” that he is entitled to relief. Robbins, 519 F.3d at 1247. Although the Court must
construe well-pleaded facts as true, not all allegations are “entitled to the assumption of truth,” as
the Court must disregard assertions in a complaint which “amount to nothing more than a ‘formulaic
recitation of the elements’” of a claim, and those consisting only of conclusory statements. Ashcroft

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v. Iqbal, 556 U.S. 662, 678 (2009)(quoting Twombly, 550 U.S. at 554-555); Kansas Penn Gaming,
LLC v Collins, 656 F.3d 1210, 1214 (10th Cir. 2011).
Where, as here, the movant argues that the plaintiff cannot prevail on the asserted legal
theory, the question is “whether the complaint sufficiently alleges facts supporting all the elements
necessary to establish an entitlement to relief under the legal theory proposed.” Commonwealth
Property Advocates, LLC v. Mortgage Electronic Registration Systems, Inc., 680 F.3d 1194, 1202
(10th Cir. 2011). “Dismissal is appropriate if the law simply affords no relief.” Id.
III.

Discussion
A.

GTCA Claim – Count One of the Second Amended Complaint

Plaintiff’s GTCA claim against DHS arises from his foster care placement in the home of
Marc Lewis, a foster parent approved by DHS. Plaintiff alleges that he was placed in the Lewis
home on or about August 1999 and was removed from that home on January 7, 2000. See Second
Amended Complaint at p. 5 ¶ 25. It is between those dates that Plaintiff alleges he was repeatedly
sexually, physically and mentally abused by Lewis. Id. Plaintiff alleges DHS was negligent and
failed to exercise “ordinary care and reasonable prudence” in relation to Plaintiff’s placement in the
Lewis foster home.
Addressing the allegations of the Amended Complaint, the Court previously found:
In this case, the Amended Complaint fails to allege any facts showing that
Plaintiff complied with the GTCA notice requirements or its time limitations for
asserting claims. In his response to the motion, Plaintiff does not address this
argument. Dismissal is thus warranted on this basis.
***
[I]t is apparent that leave to amend is futile if Plaintiff did not file the
requisite notice prior to filing suit, or if he cannot allege facts to show that the action
is timely brought. Plaintiff’s failure to respond to the arguments regarding these
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omissions suggests that he may not intend to pursue this claim. However, if he
inadvertently omitted the essential allegations and is able to include them, he may
assert the claim in a second amended complaint. Subject to that condition, leave to
amend is authorized. Otherwise leave to amend must be denied as futile.
See Order [Doc. No. 39] at pp. 4, 10.
It is well-established under Oklahoma law that the GTCA is the exclusive remedy for an
injured plaintiff to recover against a state governmental entity in tort. See Tuffy’s Inc. v. City of
Oklahoma City, 212 P.3d 1158, 1163 (Okla.2009). To invoke the power of a court to consider a
GTCA claim, a plaintiff must satisfy two requirements: (1) timely presentation of notice of a claim
within one year after the loss, see Okla. Stat. tit. 51, § 156(A) and (B); and (2) timely
commencement of an action within 180 days of the denial of a claim, see Okla. Stat. tit. 51, §
157(B). Only if both of these requirements are satisfied does a court have jurisdiction to consider
a GTCA claim. See Shanbour v. Hollingsworth, 918 P.2d 73, 75 (Okla. 1996) (compliance with the
notice requirements of the GTCA “are prerequisites to the state’s consent to be sued and to the
exercise of judicial power to remedy the alleged tortious wrong by the government” and “judicial
power is invoked by the timely filing of the governmental tort claims action pursuant to § 157").
See also Hall v. GEO Group, Inc., 324 P.3d 399, 400 (Okla. 2014) (“The notice required by the
GTCA is a mandatory prerequisite jurisdictional requirement to filing a claim for tort damages.”)
(citing Harmon v. Cradduck, 286 P.3d 643, 652 (Okla. 2012)).
In the Second Amended Complaint, Plaintiff now alleges he filed his tort claim pursuant to
the GTCA on September 29, 2004 – more than four and one-half years after the alleged abuse last
occurred. See Second Amended Complaint at p. 2, ¶ 13. Thus, Plaintiff’s allegations establish that
he did not timely satisfy the notice of claim requirement of the GTCA because he did not file his
claim within one year of the date the abuse last occurred.
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Ignoring this deficiency, Plaintiff further alleges that “by operation of law” the tort claim was
deemed denied and that he timely commenced his civil action within 180 days of the denial of the
tort claim. See id. Pursuant to § 157(A), “[a] claim is deemed denied if the state or political
subdivision fails to approve the claim in its entirety within ninety (90) days [.]” Id. Therefore,
according to Plaintiff’s allegations his claim was denied on or about December 28, 2004. Plaintiff
then had 180 days from the denial to bring a claim, or until June 26, 2005. Plaintiff did not, however,
file his action within 180 days of the denial of his claim but first filed an action on September 5,
2008.
Although Plaintiff has not satisfied the “prerequisite jurisdictional requirements” under the
GTCA, Plaintiff nonetheless contends his GTCA claim can be maintained because the time period
within which he was required to file a suit was extended due to his status as a minor. Plaintiff relies
on Okla. Stat. tit. 12, § 96.2 Plaintiff alleges he filed his initial case against DHS on September 5,
2008. Plaintiff contends the case was timely filed because Plaintiff did not reach the age of majority
until September 5, 2007. See Second Amended Complaint at p. 3, ¶ 14 (Plaintiff reached eighteen
years of age on September 5, 2007).3

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Section 96 provides in pertinent part:

If a person entitled to bring an action other than for the recovery of real property, except for a penalty
or forfeiture, be, at the time the cause of action accrued, under any legal disability, every such person
shall be entitled to bring such action within one (1) year after such disability shall be removed . . . .
Okla. Stat. tit. 12, § 96. A minor qualifies as a person under a legal disability. See Garrison v. Wood, 957 P.2d 129, 130
n. 2 (Okla. Civ. App. 1997) (citing Heston v. People’s Elec. Co-op, 824 P.2d 1137 (Okla. 1992)).
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In making this argument, Plaintiff actually necessarily relies on two separate tolling provisions. First, he relies
on section 96 to extend the limitations period to September 5, 2008 – one year after he reached the age of majority.
Although he filed his first action against DHS on September 5, 2008, the first action was dismissed without prejudice
on September 4, 2009 . Plaintiff then re-filed the action on September 3, 2010, invoking the provisions of Okla. Stat.
tit. 12, § 100, which allow for commencement of a new action within one year of a dismissal “otherwise than upon the
merits” even though “the time limit for commencing the action shall have expired before the new action is filed.” Id.
The Court takes judicial notice of the state court dockets in Case Nos. CJ-2008-8112 and CJ-2010-7276, District Court

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The Oklahoma courts have made clear, however, that “only where valid notice ha[s] been
given and the claim ha[s] been timely filed,” do the provisions of section 96 apply. Hall, 324 P.3d
at 405 (citing Cruse v. Board of County Comm’rs of Atoka County, 910 P.2d 998 (Okla. 1995); see
also Tyler By and Through Tyler v. Board of County Comm’rs, County of Kay, 915 P.2d 951, 952
(Okla. Civ. App. 1996). As set forth, Plaintiff has failed to establish either valid notice of the claim
or timely filing of his action. Thus, dismissal of Plaintiff’s GTCA claim on jurisdictional grounds
is proper and it is not necessary for the Court to further address whether the GTCA exemptions cited
by DHS apply.4
B.

Bosh Claim – Count Three of the Second Amended Complaint

DHS further moves for dismissal of Plaintiff’s Bosh claim. DHS contends Plaintiff’s claim
“goes far beyond Bosh and seeks to assert a ‘battery/excessive force’ claim against [DHS] based on
the criminal conduct of a third-party (Marc Lewis) who was not an employee of [DHS] (unlike the
tortfeasors in Bosh who were government employees.)”. See Brief in Support of Motion at p. 14.
DHS contends it is exempt from imposition of liability against it for this type of conduct under the
GTCA. See id. at pp. 14-15 (citing Okla. Stat. tit. 51, § 155(18)).5 DHS further seeks dismissal of
the Bosh claim as untimely.
In response, Plaintiff claims this action, like Bosh, involves a seizure. See Plaintiff’s
Response at p. 8 (“When the State of Oklahoma removes a child from the home of his parents and

of Oklahoma County, State of Oklahoma.
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Although DHS cites Fed. R. Civ. P. 12(b)(6) as the basis for dismissal of the GTCA claim, because the notice
provision of the GTCA is a jurisdictional prerequisite, the Court finds dismissal is proper pursuant to Fed. R. Civ. P.
12(b)(1) for lack of jurisdiction.
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Section 155(18) exempts the state or a political subdivision from liability for “[a]n act or omission of an
independent contractor or consultant . . . or of a person other than an employee of the state or political subdivision at the
time the act or omission occurred[.]” Okla. Stat. tit. 51, § 155(18).

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involuntarily places him in a foster home, there is clearly a seizure.”). In support, Plaintiff cites
Yvonne L. By and Through Lewis v. New Mexico Dept. of Human Servs. 959 F.2d 883, 891-93 (10th
Cir. 1992), a case in which the court recognized a substantive due process right to protection while
in foster care. Plaintiff does not respond to DHS’s contention that his Bosh claim is untimely.
The Court previously addressed whether the allegations of the Amended Complaint were
sufficient to allege a claim pursuant to Bosh. See Order [Doc. No. 39] at pp. 6-9. The Court
concluded that the allegations were “inadequate to state a plausible claim for relief against DHS
based on Bosh” and granted dismissal of the claim. See id at p. 9. The Court, however, granted
Plaintiff leave to amend noting that it had “doubts regarding the viability of Plaintiff’s Bosh claim
in the context of this case” but that it could not “state with certainty that amending the claim would
be futile.” Id. at p. 10.6
A review of the allegations of the Second Amended Complaint as to Plaintiff’s third claim
for relief against DHS pursuant to Bosh demonstrates that those allegations are identical to the
allegations of the Amended Complaint. Thus, although Plaintiff was granted leave to allege
additional facts, he did not do so, instead choosing to stand on the same allegations as those asserted
in the Amended Complaint. Therefore, for the reasons set forth in the Court’s prior Order,

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The Court’s prior analysis referenced another action pending in this judicial district involving a claim brought
pursuant to Bosh and relating to DHS’s temporary removal of a child from his parents’ custody pending proceedings
to terminate their parental rights. See Hedger v. Kramer, No. CIV-13-0654-HE, 2013 WL 5873348 (W.D. Okla. Oct.
30, 2013) (unpublished op.). In Hedger, the court determined that the plaintiffs had not stated a plausible claim for relief
under Bosh, but, as in this case, granted the plaintiffs leave to file an amended complaint. After the plaintiffs amended
their complaint, the court determined the Bosh claim against DHS would be dismissed with prejudice. See Hedger v.
Kramer, No. CIV-13-0654-HE, 2014 WL 1645792 at **3,5 (W.D. Okla. April 24, 2014) (unpublished op.). The court
reiterated that “Bosh should be narrowly interpreted and applied only to excessive force claims, which have not been
asserted here.” In this regard, the court noted that the plaintiffs had not alleged any facts showing the force “actually
used in the removal of S.H. from his parents’ custody” and that “[t]he vague reference to ‘excessive force’ is not
sufficient to bring plaintiffs’ state constitutional claim within the scope of Bosh, as that case has been interpreted by this
court.” Id.

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Plaintiff’s Bosh claim is dismissed for failure to state a plausible claim for relief.7
IV.

Conclusion
Plaintiff’s allegations as set forth in the Second Amended Complaint demonstrate that he did

not timely comply with the notice of claim and commencement of action requirements of the GTCA.
Consequently, this Court lacks jurisdiction over Plaintiff’s GTCA claim against DHS. In addition,
Plaintiff’s claim against DHS alleging excessive force/battery pursuant to Bosh fails to state a
plausible claim upon which relief can be granted.
IT IS THEREFORE ORDERED that the Motion to Dismiss Second Amended Complaint
of Defendant Oklahoma Department of Human Services [Doc. Nos. 54-55] is GRANTED and
Plaintiff’s Second Amended Complaint is DISMISSED against Defendant DHS pursuant to Fed. R.
Civ. P. 12(b)(1) and 12(b)(6).
IT IS SO ORDERED this 13th day of November, 2014.

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Based on the stated ground for dismissal, the Court does not address whether the Bosh claim is also barred as
untimely pursuant to the applicable limitations period.

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