Snow et al v. McClain County Board of County Commissioners et al

Filing 50

ORDER granting in part and denying in part 17 Board's motion to dismiss; granting in part and denying in part 18 the individual Board members' motion to dismiss; granting 19 defendants Hewett, Shobe, Thomas and Wite's partial motion to dismiss; granted in part and dismissed in part 14 defendant Barnes partial motion to dismiss; see order for specifics as to remaining claims. Signed by Honorable Joe Heaton on 12/19/2014. (lam)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
GARY SNOW, Special Administrator,
of the Estate of Kory Wilson, Deceased;
KRISTLE JIMENEZ, mother and Next
Friend of BDJ-W, a minor,
Plaintiffs,
vs.
BOARD OF COUNTY
COMMISSIONERS OF THE COUNTY
OF MCCLAIN, et al.,
Defendants.

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NO. CIV-14-911-HE

ORDER
This case arises out of the death of Kory Wilson while he was in defendants’ custody
at the McClain County, Oklahoma, jail. According to the complaint, Mr. Wilson was facing
criminal charges and was taken into custody on June 16, 2013. He was allegedly a Type I
insulin dependent diabetic. The complaint alleges generally that Mr. Wilson did not receive
insulin or other treatment for his diabetes for a period of several days, resulting in his death
on June 21, 2013.
Plaintiffs are Gary Snow, as the Special Administrator of Mr. Wilson's estate, and
Kristle Jimenez, as mother and next friend of BDJ-W, the minor son of Mr. Wilson.
Plaintiffs assert claims against McClain County and its Board of County Commissioners, the
Sheriff and Undersheriff of McClain County, various detention officers having jail
responsibilities, and John/Jane Doe defendants responsible for providing medical care to
Wilson. Plaintiffs assert federal claims under 42 U.S.C. § 1983 based on Wilson's Fourteenth

Amendment due process rights (as a pretrial detainee) to appropriate medical care. They also
assert state law claims for wrongful death, negligence and intentional infliction of emotional
distress, as well as claims based on provisions of the Oklahoma Constitution.
Four motions to dismiss are pending, one filed by the McClain County Board of
County Commissioners, another by the individual commissioners, another by the sheriff and
most of the detention officers, and a fourth by detention officer Wayne Barnes. All seek the
dismissal of plaintiffs' claims on the basis of Fed.R.Civ.P. 12(b)(6).
When considering whether a plaintiff’s claims should be dismissed under
Fed.R.Civ.P. 12(b)(6), the court accepts all well-pleaded factual allegations as true and views
them in the light most favorable to the plaintiff as the nonmoving party. S.E.C. v.
Shields,744 F.3d 633, 640 (10th Cir. 2014). All that is required is “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2).
The complaint must, though, contain “enough facts to state a claim to relief that is plausible
on its face” and “raise a right to relief above the speculative level. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570, 555 (2007). “‘A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.’” Shields, 744 F.3d at 640 (quoting Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009)). As explained by the Tenth Circuit, the Twombly/Iqbal
pleading standard “is a middle ground between heightened fact pleading, which is expressly
rejected, and allowing complaints that are no more than labels and conclusions or a formulaic
recitation of the elements of a cause of action, which the Court stated will not do.” Id. at
2

640-41 (quoting Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir.2012)).
Considering defendants’ motions under that standard, the court concludes the motions should
be granted in substantial part.
Motion of the Board of County Commissioners
At the outset, it is useful to address the exact status of the Board of County
Commissioners of McClain County, and of McClain County itself, relative to the claims
asserted here.1 The complaint alleges that McClain County is a political subdivision of the
State of Oklahoma, an assertion which is plainly true. 19 Okla. Stat. § 1 (county is a "body
corporate and politic"). It also alleges, see Doc. #1, ¶4, that the Board of County
Commissioners of McClain County is a political subdivision of the State of Oklahoma, which
is not accurate. Under Oklahoma law, a county's board of county commissioners is not a
separate legal entity from the county. Rather, in general, it exercises the powers of the
county. 19 Okla. Stat. § 3. A suit brought against a county's board of county commissioners
is the way Oklahoma law contemplates suing the county. 19 Okla. Stat. § 4. Moreover, in
the § 1983 context, a suit against the board of county commissioners or some other county
official in their official capacity is, in substance, a suit against the county. Porro v. Barnes,
624 F.3d 1322, 1328 (10th Cir. 2008); Lopez v. LeMaster, 172 F.3d 756, 762 (10th Cir.
1999). So the question raised by the Board and commissioners' motions is whether plaintiffs

1

Confusion over the status of the Board of County Commissioners seems to be a staple of
recent § 1983 litigation involving Oklahoma counties. For a useful and, in this court's view,
accurate description of the legal landscape on the issue, see DuBois v. Bd. of Cnty. Comm’rs of
Mayes Cnty. Okla., 2014 WL 4810332 (N.D.Okla. Sept. 29, 2014).

3

have stated a claim against McClain County (i.e. any claims asserted against the county
directly or by suing the board or other county officers in their official capacities) or against
the members of the board of commissioners in their individual capacities.
The motion filed by the Board of County Commissioners confuses the issue by
arguing that it (the Board) is not a "proper party," essentially because it didn’t do anything
wrong, or fail to do anything it had a duty to do. But, as noted above, the Board, as such, is
not even a legal entity and obviously cannot be a "party" regardless of what it did or didn't
do. Rather, the question is whether a basis for claim against the county is stated. In order
to hold a county liable on a § 1983 claim, a plaintiff must show (1) the existence of a county
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. that there
"is a direct causal link between the policy or custom and the injury alleged." See Canton v.
Harris, 489 U.S. 378, 385 (1989); Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978).2
A board of county commissioners might well be the source of a pertinent policy in
some circumstances,3 but the question in this case has to do with responsibility for the
provision of medical care in the county jail. Under Oklahoma law, the county sheriff is the

2

The indicated standard applies to municipalities and other political subdivisions, including
counties.
3

Plaintiffs suggest certain Oklahoma statutes impose duties on boards of county
commissioners as to jail operation and/or medical services. It is doubtful that the statutes impose
a duty on the Board such as might be an independent basis for county liability in the particular
circumstances of this case. However, as a basis for county liability is otherwise pled, as discussed
below, it is unnecessary to belabor the question here.

4

final policymaker as to the county jail. 19 Okla. Stat. § 513; Lopez, 172 F.3d at 763 ("the
county may be liable on the basis that [the sheriff] is a final policymaker with regard to its
jail . . . ."). So if the sheriff has adopted a policy or knowingly acquiesced in a custom which
becomes the moving force behind a constitutional violation, that is enough to establish
county liability. Here, while the complaint's allegations are somewhat conclusory as to the
policy/custom issue, the court concludes they are sufficient to allege a policy or custom
sufficient to support county liability.
The constitutional right alleged to have been violated is an inmate's right to adequate
medical care. As Mr. Wilson was a pretrial detainee, the basis for his claim is the Fourteenth
Amendment’s due process clause. Based on that amendment, he is entitled to the same level
of protection against the denial of medical attention as a convicted inmate would be under
the Eighth Amendment. Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009). The
Eighth Amendment "imposes a duty on prison officials to provide humane conditions of
confinement, including adequate ... medical care . . . ." Tafoya v. Salazar, 516 F.3d 912, 916
(10th Cir. 2008). Deliberate indifference to serious medical needs violates the constitutional
requirement. See Estelle v. Gamble, 429 U.S. 97, 103-105 (1976). Here, the allegations of
the complaint are sufficient to state a claim under the "deliberate indifference" standard.
As a result, the motion of the Board will be denied insofar as it proceeds on the theory
that it (and hence the County) is not a "proper party." The County is a proper party and a
Fourteenth Amendment claim has been stated against it.
The Board (i.e. McClain County) argues it is not liable as to plaintiff's state law claims
5

grounded in negligence (claims V, VI, and VIII) based on the Oklahoma Governmental Tort
Claims Act, 51 Okla. Stat.151, et seq., and principles of sovereign immunity.4 That Act
generally adopts the doctrine of sovereign immunity from tort liability for the State, its
political subdivisions, and their employees acting within the scope of their employment. 51
Okla. Stat. § 152.1. The immunity is waived in various circumstances, but not for liability
stemming from the "equipping, operation or maintenance of any prison, jail or correctional
facility ...." 51 Okla. Stat. § 155(25). That exemption from liability includes liability arising
from the provision of medical and health services. Medina v. State, 871 P.2d 1379, 1384
(Okla. 1993). Plaintiffs' response concedes that their claims sounding in negligence are
precluded by this provision of the Act and the sovereign immunity doctrine,5 hence the
County's motion will be granted as to claims V, VI, and VIII.6 Count IV also will be

4

The County’s argument appears to embrace the wrongful death claim as well, since
Oklahoma's wrongful death statute, 12 Okla. Stat. § 1053, does not expand the nature of a plaintiff's
claim but only clarifies who may bring a claim that the decedent could otherwise have brought
himself. See Berry v. City of Muskogee, 900 F.2d 1489, 1505 n.22 (10th Cir.1990) (“But, as is true
in most states, Oklahoma views wrongful death actions as derivative claims that depend upon the
existence of a right of action in the decedent before death.”); Economy Fire & Cas. Co. v. Faulkner,
790 F.Supp. 1082, 1084 (W.D.Okla.1991) (“The Wrongful Death Act does not expand the scope of
claims or the number of persons entitled to bring an action, but merely entitles someone to bring
what the decedent could have brought himself. “), aff’d, 951 F.2d 1258 (10th Cir. 1991); White v.
Equity Fire & Cas. Co., 823 P.2d 953 (Okla.Civ.App. 1991). Plaintiffs do not seriously challenge
that conclusion.
5

As all of plaintiffs' state law claims are within the scope of the correctional facility
exemption, it is unnecessary to determine whether the discretionary function exemption of 51 Okla.
Stat. § 155(5) would also apply or whether, as to the claim for intentional infliction of emotional
distress, the good faith/bad faith distinction of § 153(A) is applicable.
6

As plaintiffs correctly note, the Oklahoma Governmental Tort Claims Act does not bar or
limit plaintiffs' § 1983 claims.

6

dismissed. See supra note 4 and infra note 13.
The County also seeks dismissal of plaintiffs' claims under Art. II, § 9 and Art. II, §30
of the Oklahoma Constitution, arguing that Oklahoma does not recognize a private right of
action for violations of either clause. Section 9 prohibits cruel and unusual punishment,
paralleling the Eighth Amendment of the U. S. Constitution. Section 30 involves
unreasonable searches or seizures. The Oklahoma Supreme Court recognized a private right
of action against a governmental entity for excessive force based on Art. 2, § 30 of the
Oklahoma Constitution, notwithstanding the limitations of the Oklahoma Governmental Tort
Claims Act, in Bosh v. Cherokee Cnty. Bldg. Auth., 305 P.3d 994 (Okla. 2013). Plaintiffs
provide no authority supporting the idea that Oklahoma would recognize a private right of
action under Section 9, other than suggesting the Bosh rationale should be extended to it. In
effect, plaintiffs argue that Bosh should be generally extended to other circumstances and
constitutional provisions. The court recognizes that some courts have suggested Oklahoma
may not limit the Bosh rationale to excessive force claims. However, consistent with the
reluctance of federal courts to expand state law without clear guidance and for the reasons
previously stated by this court, the court declines to assume such an expansion of state law.
See Schrock v. Wyeth, Inc., 727 F.3d 1273, 1284 (10th Cir. 2013); Hedger v. Kramer, No.
CIV-13-654-HE (W.D.Okla. April 24, 2014) (interim Order); Koch v. Juber, No. CIV-130750-HE (W.D.Okla. May 23, 2014 (interim Order). The purported claims based on alleged
violations of the Oklahoma Constitution will be dismissed.
The Board's motion also seeks the dismissal of any claims asserted by Kristle Jimenez,
7

arguing that she lacks standing to assert a § 1983 claim based on injuries to Mr. Wilson and
that she is not the surviving spouse or next of kin as to any state claim. Plaintiffs concede
the point, indicating that Ms. Jimenez appears here only as mother and next friend of Mr.
Wilson's minor son. The Board does not appear to challenge Ms. Jimenez's status insofar as
she seeks to act only on behalf of the minor. However, the only remaining claim against the
Board is that asserted against it under § 1983. Because a § 1983 civil rights action is
personal, Archuleta v. McShan, 897 F.2d 495, 497 (10th Cir. 1990) (“We must also keep
firmly in mind the well-settled principle that a section 1983 claim must be based upon the
violation of plaintiff's personal rights, and not the rights of someone else.”), the proper
remedy is “a survival action, brought by the estate of the deceased victim, in accord with
§1983's express statement that the liability is ‘to the party injured.’” Berry v. City of
Muskogee, 900 F.2d 1489, 1506-07 (10th Cir.1990) (quoting 42 U.S.C. § 1983)).7
Therefore, all claims asserted by Ms. Jimenez against the Board will be dismissed.
For the reasons indicated, the Board's (i.e. the County's) motion to dismiss will be
granted as to all claims other than Mr. Snow’s' § 1983 claim in Count III, based on deliberate
indifference to serious medical needs.
Motion of the Individual Commissioners
Defendants Benny McGowen, Wilson Lyles and Charles Foster are the members of
the Board of County Commissioners of McClain County. Plaintiffs have sued these

7

Plaintiffs admit that defendants are correct that Ms. Jimenez should be dismissed “from the
Section 1983 claims and the state wrongful death claims.” Doc. #31, p. 3.

8

defendants in their individual, as well as their official, capacities.
There is substantial overlap in the arguments of the individual commissioners and
those of the Board discussed above. Insofar as these defendants are sued in their official
capacities, the above discussion of the Board's motion is equally applicable. These
defendants raise substantially the same issues with respect to the claims of Kristle Jimenez,
the application of sovereign immunity to plaintiffs' state law negligence and wrongful death
claims, and the availability of a private right of action for alleged violations of the Oklahoma
Constitution. The court applies the same treatment of those issues to these defendants and
the referenced claims asserted against the Board members will be dismissed for the same
reasons.8
The Board’s motion did not present the issue of the Board members’ potential liability
on the § 1983 claims in their individual capacities. To be individually liable under § 1983 a
defendant must have “‘subject[ed], or cause[d] to be subjected’ a plaintiff to a deprivation
of his legal rights.” Porro, 624 F.3d at 1327 (quoting 42 U.S.C. § 1983). “[P]ersonal
participation in the specific constitutional violation complained of is essential.” Henry v.
Storey, 658 F.3d 1235, 1241 (10th Cir. 2011).9 A supervisor may be held liable under § 1983

8

The application of the Oklahoma Governmental Tort Claims Act is not identical for the
individual defendants as for the county itself, but the complaint alleges nothing to suggest that the
commissioners were acting outside the scope of their "employment" in whatever decisions they
made. Plaintiffs explicitly concede that as to the intentional infliction of emotional distress claim.
Absent a basis for concluding action outside the scope of employment, the subdivision employee or
representative is generally immune from liability for state law tort claims. 51 Okla. Stat. § 152.1(A).
9

“Deliberate indifference has objective and subjective components. Callahan v. Poppell,
471 F.3d 1155, 1159 (10th Cir. 2006). “The objective component of the test is met if the harm

9

if he or she “established or utilized an unconstitutional policy or custom” or “breached a duty
imposed by state or local law which caused the constitutional violation.” Meade v. Grubbs,
841 F.2d 1512, 1528 (10th Cir.1988).
Plaintiffs do not claim the Board members were directly involved in the asserted
failure to provide Mr. Wilson with medical care. As defendants note, plaintiffs do not allege
that the defendants “ever interacted with the Decedent, that they were aware of the
Decedent’s medical condition, or that they were even aware of the Decedent’s existence or
his incarceration in the Jail.” Doc. #18, p. 16. What they do allege is that
The Defendant BOARD and the individual County Commissioners, FOSTER,
LYLES and McGOWEN, have control and charge of county property,
including the McClain County Detention Center, and have certain statutory
obligations and managerial and fiscal responsibilities with regard to the care
and treatment of pretrial detainees and prisoners located in the McClain
County Detention Center, which included responsibility for Kory Wilson. . .
. These responsibilities include procuring and/or arranging medical treatment
and diagnostic services for pretrial detainees and prisoners who reside in the
McClain County Detention Center while in custody of Sheriff HEWETT.
On multiple occasions on or before June 19, 2013, Commissioners FOSTER,
LYLES and McGOWEN met with Defendant HEWETT and others to discuss
dangerous conditions and overcrowding in the Detention Center.
Defendants HEWETT, FOSTER, LYLES and McGOWEN failed to take
appropriate actions to employ competent medical personnel at the Detention
Center to evaluate incoming detainees and to tend to the medical needs of
those that were in the custody of the McClain County Detention Center.
Defendants . . . FOSTER, LYLES, McGOWEN, and all others named herein,

suffered is sufficiently serious to implicate the Cruel and Unusual Punishment Clause,” and the
subjective component is met if the defendant knew the prisoner “faced a substantial risk of harm and
disregarded that risk.” Id. (internal quotations omitted)

10

knew or should have known that the failure to act was likely to cause those
under the custody and control of the Detention Center to become injured, ill
or to be killed by the dangerous conditions and/or lack of appropriate medical
personnel.
Doc. #1, ¶¶ 23, 26, 27, 29.
The problem with plaintiff’s claims against the county commissioners, in a nutshell,
is that under Oklahoma law “[t]he sheriff, and not the board, is responsible for medical care
in Oklahoma [county jails].” Estate of Crowell ex rel. Boen v. Bd. of Cnty. Comm'rs of
Cnty. of Cleveland, 237 P.3d 134, 142 (Okla. 2010).10 County commissioners are required
by state statute to inspect the jails in their respective counties yearly and to “fully examine
the health, cleanliness and discipline conditions of the jail.” 57 Okla. Stat. § 1.11 That is not
the same thing, though, as undertaking responsibility for ensuring that the medical needs of
the prisoners and pretrial detainees are met. See generally Meade, 841 F.2d at 1531.
Oklahoma law imposes that duty on the sheriff of each county. Section 52 of Title 57, Okla.
Stat. provides that “[i]t shall be the duty of the sheriff of each county to provide bed clothing,
washing, board and medical care when required, and all necessities for the comfort and
welfare of prisoners as specified by the standards promulgated pursuant to Section 192 of

10

To the extent Estate of Crowell suggests that a board of county commissioners is not a
proper defendant with respect to allegations against a county sheriff on civil rights claims arising
out of incidents at a county jail, the court respectfully disagrees with the decision. See DuBois, 2014
WL 4810332, at *7.
11

If it appears during the inspection “that any provisions of law have been violated or
neglected they shall give notice to the district attorney of the county.” 57 Okla. Stat. § 1. There is
no allegation that defendants McGowen, Foster, and Lyles inspected the McClain County Detention
Center while Mr. Wilson was in custody there.

11

Title 74 of the Oklahoma Statutes . . . .” See 57 Okla. Stat. § 47 (“The sheriff, or such person
designated by law in his place, shall have charge of the county jail of his county and of all
persons by law confined therein . . . .”); 19 Okla. Stat. § 513 (“The sheriff shall have the
charge and custody of the jail of his county, and all the prisoners in the same . . . .”).
County commissioners do “have power to appoint a medical officer to the jail and pay
him such salary as they may think reasonable and proper, which shall be drawn out of the
county treasury.” 57 Okla. Stat. § 51. However, they are not required to make the
appointment. Whether the county commissioners may take on the responsibility of providing
medical care for prisoners or pretrial detainees at the county jail by appointing a medical
officer is not an issue here, as no appointment was made. Further, to the extent plaintiffs
attempt to base their claim on the commissioner’s failure to make an appointment due to
budgetary concerns, the claim fails for lack of sufficient factual allegations. Merely stating
that defendants “[e]ngaged in a long-term and ongoing custom and practice of disregarding
the medical needs of detainees, including Kory Wilson, in whole or in part because of the
adverse effect on the Detention Center’s budget,” Doc. #1,¶ 69(t), is not enough to “nudge[]
[plaintiffs’] claim[] across the line from conceivable to plausible.” Twombly, 550 U.S. at
570. Conclusory allegations of wrongdoing without some factual support are not sufficient.
In addition, such a claim, if adequately pleaded, may be subject, as defendants argue, to
legislative immunity.
Plaintiffs have failed to allege a duty either imposed by law or undertaken by the
Board members, pursuant to 57 Okla. Stat. § 51, for the medical care of those imprisoned or
12

detained at the McClain County Detention Center. They also have not alleged that the Board
members were personally involved in the medical care of the decedent. Plaintiffs therefore
have not stated a § 1983 claim against the Board members in their individual capacities for
deliberate indifference to the serious medical needs of the decedent. That claim, too, will be
dismissed.12
Motion of defendants Hewett, Shobe, Thomas, and White
Defendants Don Hewett, Sheriff of McClain County, Bill Shobe, Undersheriff of
McClain County, Sgt. Chia Thomas and Sgt. Jerry White have filed a partial motion to
dismiss. These defendants all seek the dismissal of Counts V through IX. Defendants
Shobe, Thomas and White also seek the dismissal of Count III. All four defendants raise
substantially the same issues with respect to the claims of Kristle Jimenez, the application
of sovereign immunity to plaintiffs' state law negligence and wrongful death claims, and the
availability of a private right of action for alleged violations of the Oklahoma Constitution
as did the Board and individual Board members. Applying the same analysis to plaintiffs’
claims against defendants Hewett, Shobe, Thomas and White, the claims asserted in Counts
IV,13 V, VI,14 VII, VIII, IX will be dismissed, as will the claims of Kristle Jimenez for the
12

Having reached this conclusion, it is unnecessary to address the Board members’ qualified
immunity argument.
13

These defendants did not move for the dismissal of Count IV, but refer to it in their answers
as both a State Law Wrongful Death Claim and “Estate and Survival Actions.” E.g., Doc. Nos.21,
p. 9; 22, p. 9. However, as discussed earlier, supra note 4, Oklahoma’s wrongful death statute does
not create a new cause of action. Plaintiffs’ wrongful death claim cannot remain viable once their
underlying negligence claims are gone. Their remedy under § 1983, if they prevail, will be in the
form of “a survival action, brought by the estate of the deceased victim, in accord with § 1983's

13

reasons stated earlier.
Defendants Shobe, Thomas and White, but not Hewett, seek the dismissal of
plaintiffs’ § 1983 claims asserted against them in their official capacity for failure to train and
supervise and provide adequate medical care in Count III.15 They contend that it is the sheriff
who has final policy-making authority regarding the provision of medical care to county
inmates under Oklahoma law. They claim plaintiffs did not allege that the Sheriff delegated
policy-making authority to them or that they “practiced any such de facto final policy-making
authority relative to Plaintiffs’ claims herein.” Doc. #19, p. 13. While they acknowledge
that plaintiffs assert that defendant Shobe “did perform . . . policy making function in the
McClain County Detention Center,” Doc. #1, p. 5, ¶9, they maintain that such a conclusory
allegation without factual support is insufficient. The court agrees.
By suing these individuals in their official capacities, plaintiffs essentially are
attempting to base County liability on their actions. That is permissible only if they are
authorized policy makers for the County. See Beedle v. Wilson, 422 F.3d 1059, 1068 (10th
Cir. 2005) (“[m]unicipal liability attaches only where the decision maker possesses final
authority to establish municipal policy with respect to the action ordered.”) (internal

express statement that the liability is to the party injured.” Berry, 900 F.2d at 1506-07 (internal
quotations omitted). The court will therefore sua sponte dismiss Count IV also against defendants
Shobe, Thomas and White and Hewett.
14

Count VI is only asserted against defendant Hewett and the Board.

15

The claim alleged in Count III is asserted against defendants McGowen, Lyles, Foster,
Hewett, Shobe, Barnes, Thomas, White and Does 1-99 in their official capacities only.

14

quotations omitted).
Both parties acknowledge that defendant Hewett is a final policy maker for McClain
County. Plaintiffs assert that “if he delegated the authority to Defendant Shobe or Barnes,16
to make a policy that was unconstitutional, the official capacity claims against Shobe and
Barnes and, thus the municipality, survive.” Doc. #31, p. 6. While they admit that
“Defendant Thomas and White’s policymaking status is suspect,” id., they ask that their
official capacity claims against Thomas and White, plus Shobe, not be dismissed “until
discovery definitively reveals who the acting policy makers were in this case.” Id. at 7. This
the court cannot do in the absence of any allegations of a delegation of authority by Hewett
to Shobe, Thomas, White or Barnes in the complaint. Allegations in their brief that
“Defendant Shobe and/or Barnes were vested with or had been delegated sole and final
policy making authority with respect to the policy at issue in this case; namely, the policy
that no employee was allowed to call for emergency medical assistance without the prior
approval of Defendant Barnes or Shobe,”” id. at 6, are not enough. Statements in a brief
cannot fill in gaps in a complaint. The court can only consider what has been actually
pleaded, not what a party later argues in a brief or hopes to uncover in discovery. As
plaintiffs have not alleged a sufficient factual basis for defendants Shobe, Thomas and White
to be considered policy makers for McClain County, the claims asserted against these three
defendants in their official capacities in Count III will be dismissed. The motion to dismiss

16

Defendant Barnes filed a separate motion to dismiss, which is addressed subsequently.

15

of defendants Hewett, Shobe, Thomas and White will be granted.
Motion of defendant Barnes
Defendant Barnes filed a partial motion to dismiss seeking the dismissal of plaintiff’s
state law claims on the grounds asserted by the other defendants, plus because he contends
those claims are untimely. Applying the same analysis as before,17 the court concludes his
motion should be granted and Counts IV,V,VII-IX, as well as the claims of Kristle Jimenez
should be dismissed. The court sua sponte dismisses the claims asserted against defendant
Barnes in Count III of the complaint, as plaintiffs failed to sufficiently allege that he either
was an official policy maker for the county or that such authority was delegated to him.
Conclusion
The Board’s motion to dismiss [Doc. #17] is granted in part and denied in part. It
is granted as to all claims asserted against it other than plaintiffs’ § 1983 claim based on
deliberate indifference to serious medical needs (Count III). The individual Board members’
motion to dismiss [Doc. #18] is granted in part and denied in part. It is granted as to all
claims but Count III, which is asserted against them in their official capacities. The partial
motion to dismiss filed by defendants Hewett, Shobe, Thomas and White [Doc. #19] is
granted. As to all four defendants Counts IV,V,VII, VIII and IX will be dismissed. As to
defendant Hewett, Count VI will be dismissed. Count III will be dismissed as to defendants
Shobe, Thomas and White. The partial motion to dismiss filed by defendant Barnes [Doc.

17

The court finds it unnecessary to consider defendant’s alternative limitations defense.

16

#14] is granted and Counts IV,V,VII, VIII and IX will be dismissed as to him. The court
sua sponte dismisses the claims asserted against defendant Barnes in Count III. All
defendants’ motions are granted as to the claims of Kristle Jimenez. Her claims, asserted
both personally and as mother and next friend of BDJ-W, are dismissed.
The remaining claims consist of the claims asserted by Gary Snow as administrator
of Mr. Wilson’s estate and they are: (1) the claim asserted in Count I against defendants
Hewett, Shobe, Barnes, Thomas, White and Does 1-99, (2) the claim asserted in Count II,
and (3) the claim asserted in Count III against Hewett, Does 1-99 and against the Board and
the individual Board members in their official capacities, i.e. the claim against McClain
County.
IT IS SO ORDERED.
Dated this 19th day of December, 2014.

17