Hedger et al v. Kramer et al
Filing
33
ORDER granting Kevin Kramer 19 , DHA 24 , Whitaker and Washington 25 and plaintiffs 26 motions to dismiss and the claims embraced by those motions dismissed...the parties may file amended pleadings where the defects are susceptible of correction by mor specific pleading within 14 days. Signed by Honorable Joe Heaton on 10/30/2013. (lam)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
ZANE and LEAH HEDGER,
Individually, and as Parents and Next
of Kin of J.R.H., deceased and S.H.,
a minor,
Plaintiffs,
vs.
TRACI D. KRAMER, an individual,
et al.,
Defendants.
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NO. CIV-13-0654-HE
ORDER
This case arises out of the death of J.R.H., the infant son of plaintiffs Zane and Leah
Hedger. According to the petition filed in state court, J.R.H. sustained two severe skull
fractures while in the care of defendant Traci Kramer, resulting in his death on March 9,
2011. The petition generally alleges that an investigation was conducted into the death,
resulting in, among other things, legal proceedings seeking the termination of the Hedger's
parental rights as to a second child, S.H., and S.H.'s temporary placement in foster care. The
petition asserts claims against Traci Kramer for negligence/wrongful death, against the City
of Edmond and the Edmond police detective who investigated the death (Misty Leach), and
against the Oklahoma Department of Human Services ("DHS") and the DHS caseworker and
supervisor who investigated the death (Julie Whitaker and Tamara Washington).1 A claim
is also asserted against Kevin Kramer, the husband of Traci Kramer, for intentional infliction
1
Plaintiffs' claims are asserted on behalf of Mr. and Mrs. Hedger personally and as parents
and next of kin of J.R.H. and S.H.
of emotional distress.
The case was removed to this court by certain of the defendants, on the basis that
some of plaintiffs’ claims are federal claims seeking relief pursuant to 42 U.S.C. § 1983.2
Defendant Traci Kramer has since filed an answer asserting multiple counterclaims against
plaintiffs.
Motions to dismiss have been filed by defendants Kevin Kramer, DHS, Whitaker and
Washington. Plaintiffs have filed a motion to dismiss the counterclaims of defendant Traci
Kramer.
The motions to dismiss are pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a
claim. Rule 12(b)(6) permits a court to dismiss a claim when a party fails “to state a claim
upon which relief can be granted.” When considering a Rule 12(b)(6) motion, all wellpleaded factual allegations in the complaint are accepted as true and those allegations, and
any reasonable inferences that might be drawn from them, are construed in the light most
favorable to the nonmoving party. Peterson v. Grisham, 594 F.3d 723, 727 (10th Cir. 2010).
Unsupported, conclusory allegations, however, need not be accepted as true. See Kansas
Penn Gaming, LLC v. Collings, 656 F.3d 1210, 1214 (10th Cir. 2011). The question is
whether the complaint contains “enough facts to state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Applying this standard, the court concludes the various motions should be granted.
2
Plaintiffs' claims for negligence and intentional infliction of emotional distress are based
on state law. As to the § 1983 claims, plaintiffs also assert companion state claims based on Okla.
Const. Art. 2, § 30.
2
Motion of Kevin Kramer
A single claim is asserted against Mr. Kramer, for intentional infliction of emotional
distress.
Under Oklahoma law this claim requires proof that: (1) defendant acted
intentionally or recklessly, (2) his conduct was "extreme or outrageous," (3) the conduct
caused plaintiff emotional distress, and (4) the emotional distress was severe. Computer
Publications Inc. v. Welton, 49 P.3d 732, 735 (Okla. 2002). The petition does not allege
facts (as opposed to conclusory statements) tending to show what Mr. Kramer did or how
anything he did was extreme or outrageous. The facts pleaded indicate he is the spouse of
Traci Kramer, that he is employed by the Oklahoma State Bureau of Investigation, and that
he got access to the medical records of J.R.H. in some unspecified manner. Beyond that, the
allegations are conclusory — that he "embarked on a course of conduct to intimidate"
plaintiffs, that he used his position with the OSBI to "either influence, or make plaintiffs
believe he was able to influence" the criminal investigation, that he had "improper" but
unspecified contacts with the Medical Examiner's office, and the like. The allegations don't
state, with any degree of factual specificity, what he allegedly did. They are insufficient to
state a plausible claim.
Motion of Julie Whitaker and Tamara Washington
Whitaker is alleged to be the DHS caseworker assigned to investigate the
circumstances surrounding the death of J.R.H. Washington is alleged to be her supervisor.
The petition asserts two claims, or categories of claims, against Whitaker and Washington.
It asserts claims pursuant to § 1983 for violation of plaintiffs' Fourth and Fourteenth
3
Amendment rights and also asserts claims for violation of rights under Art. 2, § 30 of the
Oklahoma Constitution. The claims are based on the alleged role of these defendants in
causing the filing of the termination of parental rights proceeding. It also asserts claims for
malicious prosecution.
Defendants assert these claims are insufficiently pleaded under Twombly. They also
argue dismissal is warranted based on qualified immunity or the immunity applicable to
witnesses.3 The court concludes the motion should be sustained based on the insufficiency
of the pleading. As with the claims against Mr. Kramer, the allegations of the petition are
largely conclusory. Plaintiffs allege defendants failed to conduct an adequate investigation,
but do not allege what was wrong with it or what state standard was violated. They allege
these defendants "caused" the parental rights proceeding to be brought, but do not allege
what the particular defendants did. See Robbins v. Oklahoma, 519 F.3d 1242, 1249-50 (10th
Cir. 2008) (“In § 1983 cases ... it is particularly important ... that the complaint make clear
exactly who is alleged to have done what to whom ....”). The petition does allege that
defendants "disregarded" information from doctors at OU Medical Center who allegedly
informed them that J.R.H.'s injuries "were not caused by Plaintiffs." Petition, ¶ 9. From the
context, it is unclear how attending physicians could have reached that specific a conclusion,
but, in any event, the court concludes that factual assertion, by itself, is insufficient to support
a claim against these defendants without further factual detail.
3
These defendants mention, but do not explicitly assert, the issue of whether a private right
of action exists to enforce rights under the referenced provision of the Oklahoma Constitution. That
argument is explicitly raised by DHS in its motion.
4
Given the lack of sufficient factual allegations, and given that the petition was drafted
with state rather than federal pleadings in mind, the court concludes it is premature to resolve
the motion on the alternative grounds suggested by defendants. Plaintiffs may be able to
allege a constitutional violation such that qualified immunity does not bar it.4 Further, those
allegations may suggest some actionable conduct by defendants beyond testifying at the
parental rights hearing, with the result that defendants’ reliance on witness immunity may
not shield the entire range of their conduct.
In any event, the motion of these defendants will be granted.5
Motion of DHS
The only claim asserted against DHS (i.e. the State of Oklahoma) is based on Art. 2,
§ 30.6 Plaintiffs seek to rely on the Oklahoma Supreme Court's recent decision in Bosh v.
Cherokee Co. Bldg. Auth., 305 P.3d 994 (2013). That case recognized a private right of
action for excessive force, based on Art. 2, § 30 of the Oklahoma Constitution,
notwithstanding the limitations of the Oklahoma Governmental Tort Claims Act, 51 Okla.
4
The qualified immunity defense may be reurged if appropriate, after any amended pleadings
are filed.
5
To the extent plaintiffs assert a claim against these defendants based on Okla. Const. Art.
2, § 30, the court's conclusions as to the DHS motion also appear applicable to them. In light of
that, it is unclear whether a basis for a state law claim exists against these defendants given the
provisions of the Oklahoma Governmental Tort Claims Act. However, that question is not squarely
raised by the present motion of these defendants.
6
As plaintiffs' omission of any § 1983 claim against DHS appears to recognize, a suit for
damages is ordinarily not available against a state. States are not “persons” within the meaning
of § 1983 and generally have the benefit of Eleventh Amendment immunity. Will v. Mich. Dept. of
State Police, 491 U.S. 58 (1989).
5
Stat. §§ 151 et seq. It further recognized the doctrine of respondeat superior as an available
theory of recovery for claims under that provision.
As the only claim against DHS is based on the theory of respondeat superior, the
conclusion that a claim is not sufficiently pled against Whitaker and Washington would
necessarily lead to the conclusion that no claim is stated against DHS either. However, as
the parties have also addressed, albeit in a somewhat perfunctory fashion, the further question
of whether the Bosh holding extends to the circumstances pleaded here, the court also
addresses that additional ground.
DHS argues that Bosh involved a claim for excessive force by a corrections officer
and that this case does not involve such a claim. Plaintiffs seem to argue, without exactly
saying it, that Bosh recognizes a private right of action for all state constitutional violations
or at least all claimed violations of Art. 2, § 30.7 It is apparently plaintiffs’ view that the
state's interim placement of S.H. in foster care pending resolution of the parental rights
termination proceeding was, as to at least S.H. and maybe as to Mr. and Mrs. Ledger, a
"seizure" within the meaning of that provision.
It is unclear how expansively the Oklahoma Supreme Court will apply the rule and
rationale it adopted in Bosh. Both Bosh and the prior decision it viewed as foreshadowing
Bosh, Washington v. Barry, 55 P.3d 1036 (Okla. 2002), involved the alleged use of excess
7
The language of Art. 2, § 30 largely parallels the Fourth Amendment to the U. S.
Constitution: "The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches or seizures shall not be violated; and no warrant shall issue but upon
probable cause supported by oath or affirmation, describing as particularly as may be the place to
be searched and the person or thing to be seized."
6
force in a detention or correctional setting. The Bosh court explicitly described its decision
as concluding that Art. 2, § 30 "provides a private right of action for excess force" rather than
some broader formulation. Bosh, 305 P.3d at 1001. This case obviously does not involve
claims of excess force. The language of the Bosh opinion does not imply that the Oklahoma
Supreme Court would necessarily imply private rights of actions in other contexts or that it
would be more open to creating new private rights of action than other courts have been. In
a somewhat parallel context, the federal courts have been reluctant to expand the availability
of a Bivens8 remedy beyond the circumstances originally embraced by it. See generally
Schweiker v. Chilicky, 487 U.S. 412, 421 (1988) (refusing to recognize private right of
action against government employees handling social security applications; noting caution
in expanding Bivens remedies into new contexts); Bush v. Lucas, 462 U.S. 367, 368 (1983)
(refusing to extend Bivens remedy in First Amendment context involving "employment
relationship that is governed by comprehensive procedural and substantive provisions giving
meaningful remedies") While the relatively cautious approach of the federal courts to
recognizing private rights of action in this context is not binding on the Oklahoma courts,
there is no apparent reason why the same concerns and cautions would not impact any
consideration of expanding the Bosh rationale beyond its particular circumstances. In any
event, given the express language of Bosh and the differing circumstances present here,9 the
8
Bivens v. Six Unknown Named Agents of Fed. Bur. of Narcotics, 403 U.S. 388 (1971).
9
So far as appears from the pleadings, no plaintiff was in a coercive setting involving
circumstances of physical force. Further, Oklahoma's statutory scheme involving child welfare, and
the roles of those participating in the system, will necessarily involve different concerns and
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court concludes the Bosh rule and rationale do not extend to the claims alleged here and that
no private right of action exists here for claims based on the Oklahoma Constitution.
Motion of plaintiffs
Plaintiffs seek dismissal of defendant Traci Kramer's counterclaims. Ms. Kramer
purports to state counterclaims for libel, slander, civil conspiracy, and intentional infliction
of emotional distress. Like the allegations of the petition discussed above, the allegations
underlying the counterclaims are largely, if not entirely, conclusory. They allege unspecified
"false statements surrounding the death", without identifying what was said, who said it, or
to whom. The conspiracy is said to have existed with unknown persons and to extend to
"acquiescing" in websites or new stories about the circumstances. Such allegations fall short
of what is required to show a civil conspiracy. See Tonkovich v. Kan. Bd. of Regents, 159
F.3d 504, 533 (10th Cir. 1998) (“Conclusory allegations of conspiracy are insufficient to
state a valid § 1983 claim.”) Similarly, the allegations as to intentional infliction of
emotional distress are purely conclusory — "embarked on a course to intimidate" and the like
— without alleging any specific action taken by a defendant or otherwise showing "extreme
or outrageous" conduct.
Conclusion
For the reasons stated, the motions to dismiss of Kevin Kramer [Doc. #19], DHS
[Doc. #24], Whitaker and Washington [Doc. #25], and plaintiffs [Doc. #26] are GRANTED
considerations from those in Bosh as to whether a private right of action is warranted.
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and the claims embraced by those motions DISMISSED. The parties may file amended
pleadings, where the defects are susceptible of correction by more specific pleading, within
fourteen (14) days.
IT IS SO ORDERED.
Dated this 30th day of October, 2013.
9
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