Dorrough v. Corey et al

Filing 34

ORDER granting in part and denying in part 23 Motion to Dismiss. Plaintiff shall show cause within 14 days why the unidentified defendants John Does 1-99 should not be dismissed for failure to effect timely service. Signed by Honorable Timothy D. DeGiusti on 7/12/2016. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
VICKI DORROUGH, as special
administrator of the ESTATE OF
MATTHEW DORROUGH, deceased,
Plaintiff,
vs.
DANIEL COREY, RAVEN MOORE,
ROBERT BENOIT, TRACY
HARSHMAN, JULIE IZZOLENA,
DORIS HARRIS-NETTLES, and
JOHN DOES 1-99,
Defendants.

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Case No. CIV-15-143-D

ORDER
Before the Court is Defendants Corey, Moore, Benoit, Harshman, Izzolena, and
Harris-Nettles’ Motion to Dismiss [Doc. No. 23]. All named defendants move for dismissal
of the action pursuant to Fed. R. Civ. P. 12(b)(6). Plaintiff Vickie Dorrough, as special
administrator of the Estate of Matthew Dorrough, deceased, has filed a response brief [Doc.
No. 24] in opposition to the Motion, and Defendants have replied [Doc. No. 25].
This civil rights action under 42 U.S.C. § 1983 concerns the death of Matthew
Dorrough on February 21, 2012, at the hands of his cell mate at the Lawton Correctional
Facility (“LCF”), which is a private prison housing inmates in custody of the Oklahoma
Department of Corrections (“DOC”). The defendants are individuals who worked at LCF
and allegedly played some part in causing Mr. Dorrough’s injuries and death. This is

Plaintiff’s second suit concerning the events of February 21, 2012. Plaintiff filed a wrongful
death action in the District Court of Comanche County, Oklahoma, on February 8, 2013,
against the perpetrator, Joseph Palone. Plaintiff added the operator of LCF, The GEO Group,
Inc. (“GEO”), as a defendant in June 2013, and added a § 1983 claim against GEO in
November 2014, which led GEO to remove the case to federal court. See Dorrough v. GEO
Group, Inc., Case No. 14-1389-D, Notice of Removal (W.D. Okla. Dec. 16, 2014).1
Plaintiff commenced this action on February 6, 2015, asserting civil rights claims
under 42 U.S.C. § 1983 and state constitutional claims under Bosh v. Cherokee County
Building Authority, 305 P.3d 994 (Okla. 2013).2 Defendants contend Plaintiff’s claims are
time barred by the applicable statutes of limitations and, as to certain claims, that the
allegations of the Complaint fail to state a plausible claim on which relief can be granted.
Standard of Decision
“To survive a motion to dismiss [under Rule 12(b)(6)], a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007)); see Robbins v. Oklahoma, 519 F. 3d 1242, 1247 (10th Cir. 2008).

1

GEO also moved to dismiss the action, and raised some of the same grounds for dismissal asserted
in this case. Contemporaneously with this Order, the Court has issued a ruling on GEO’s motion.
2

In Bosh, the Oklahoma Supreme Court recognized a private right of action for excessive force
derived from Article II, Section 30 of the Oklahoma Constitution, notwithstanding the requirements of the
Governmental Tort Claims Act, Okla. Stat. tit. 51, §§ 151-172. See Bosh, 305 P.3d at 1001. The court also
held that its decision would apply retroactively and the common law doctrine of respondeat superior could
be used to establish municipal liability for excessive force by a municipal employee. See id. at 1003, 1004.

2

“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.”
Iqbal, 556 U.S. at 678. “[W]here the well-pleaded facts do not permit the court to infer more
than the possibility of misconduct, the complaint has alleged – but it has not ‘show[n]’ – ‘that
the pleader is entitled to relief.’” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)). Thus, in
assessing plausibility, a court should first disregard conclusory allegations and “next consider
the factual allegations in [the] complaint to determine if they plausibly suggest an entitlement
to relief.” Id. at 681.
Determining whether a complaint states a plausible claim is a “context-specific task
that requires the reviewing court to draw on its judicial experience and common sense.” See
id. at 679; see also Robbins, 519 F.3d at 1248. “In § 1983 cases, defendants often include
the government agency and a number of government actors sued in their individual
capacities. Therefore it is particularly important in such circumstances that the complaint
make clear exactly who is alleged to have done what to whom, to provide each individual
with fair notice as to the basis of the claims against him or her . . . .” See Robbins, 519 F.3d
at 1249-50 (emphasis in original); see also Smith v. United States, 561 F.3d 1090, 1104 (10th
Cir. 2009).
“‘[I]f the allegations [of a complaint] show that relief is barred by the applicable
statutes of limitations, the complaint is subject to dismissal for failure to state a claim.’”
Vasquez Arroyo v. Starks, 589 F.3d 1091, 1096-97 (10th Cir. 2009) (quoting Jones v. Bock,

3

549 U.S. 199, 215 (2007)). Further, “any party claiming the benefit of equitable tolling of
a limitations period . . . [bears] the burden of [pleading and] proving justifiable
circumstances.” Olson v. Fed. Mine Safety & Health Review Comm’n, 381 F.3d 1007, 1014
(10th Cir. 2004)); see Aldrich v. McCulloch Prop., Inc., 627 F.2d 1036, 1044 n.4 (10th Cir.
1980).3
I. Plaintiff’s Civil Rights Action
Although numerous issues are raised by the Motion, the Court first addresses the
alleged grounds for dismissal of Plaintiff’s § 1983 claims, which are the only claims within
this Court’s original jurisdiction.4
A.

Statute of Limitations
The parties agree that the statute of limitations for a § 1983 claim, which is borrowed

from state law, is the two-year period of Okla. Stat. tit. 12, § 95(A)(3). See Meade v. Grubbs,
841 F.2d 1512, 1522-24 (10th Cir. 1988); see also Wilson v. Garcia, 471 U.S. 261, 280
(1985). They also agree that federal law governs issues related to the accrual of a § 1983
claim. See Wallace v. Kato, 549 U.S. 384, 388 (2007) (“the accrual date of a § 1983 cause
of action is a question of federal law that is not resolved by reference to state law”)
3

Plaintiff asserts that the § 1983 claims were timely filed either due to a delayed accrual date under
a federal discovery doctrine or tolling of the limitations period under a state law discovery doctrine. See
Alexander v. Oklahoma, 382 F.3d 1206, 1217 (10th Cir. 2004) (“state law governs the application of tolling
in a civil rights action,” and Oklahoma law recognizes the discovery rule as a tolling doctrine).
4

“If federal claims are dismissed before trial, leaving only issues of state law, ‘the federal court
should decline the exercise of [supplemental] jurisdiction.’” See Bauchman v. W. High Sch., 132 F.3d 542,
549 (10th Cir. 1997) (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988), and United Mine
Workers v. Gibbs, 383 U.S. 715, 726 (1966)); see also Brooks v. Gaenzle, 614 F.3d 1213, 1229-30 (10th Cir.
2010); 28 U.S.C. § 1367(c)(3).

4

(emphasis omitted). The parties disagree on when Plaintiff’s claims accrued. Plaintiff
proposes a date in February 2013 when she first obtained a copy of a confidential
investigative report prepared by DOC’s Office of Internal Affairs (the “IA Report”)
regarding Mr. Dorrough’s death. Plaintiff received the IA Report from the Comanche
County District Attorney’s Office in response to a subpoena issued when filing suit against
Mr. Palone. Accepting this date, Plaintiff’s § 1983 action was timely filed in February 2015.
To establish the proposed date for accrual of the § 1983 claims, Plaintiff invokes the
federal discovery rule. The Tenth Circuit has summarized the applicable legal principles as
follows:
In general, under the federal discovery rule, claims accrue and “[t]he statute
of limitations begins to run when the plaintiff knows or has reason to know of
the existence and cause of the injury which is the basis of his action.” Indus.
Constructors Corp. v. United States Bureau of Reclamation, 15 F.3d 963, 969
(10th Cir. 1994). In particular, “[a] civil rights action accrues when facts that
would support a cause of action are or should be apparent.” Fratus v. Deland,
49 F.3d 673, 675 (10th Cir. 1995) (internal quotations omitted).
Alexander v. Oklahoma, 382 F.3d 1206, 1215 (10th Cir. 2004). The court of appeals has also
observed: “Since the injury in a § 1983 case is the violation of a constitutional right, such
claims accrue when the plaintiff knows or should know that his or her constitutional rights
have been violated. This requires the court to identify the constitutional violation and locate
it in time.” Smith v. City of Enid, 149 F.3d 1151, 1154 (10th Cir. 1998) (internal quotations
and citations omitted). Plaintiff’s § 1983 claims in this case are based on alleged violations
of Mr. Dorrough’s Eighth Amendment rights: 1) to “reasonable safety” from inmate

5

violence, Farmer v. Brennan, 511 U.S. 825, 844 (1994); 2) to treatment of serious medical
need (by Defendants Corey and Moore only), see Estelle v. Gamble, 429 U.S. 97, 104
(1976); and 3) to be free from a use of excessive force “applied maliciously and sadistically
to cause harm” (by Defendants Corey and Moore only), see Hudson v. McMillian, 503
U.S. 1, 7 (1992).5
It would appear that any of the alleged constitutional violations occurred, and thus a
§ 1983 claim accrued, on the date Mr. Dorrough was attacked and died. Plaintiff asserts,
however, and alleges facts in her Complaint to show, that “she remained completely unaware
and without knowledge of the actions/inactions of LCF and its employees relative to the
Incident” and first learned “the identity of any of the individual Defendants and the role they
played in the death” when she received the IA Report. See Pl.’s Resp. Br. [Doc. No. 24], p.5;
Compl. [Doc. No. 1], ¶ 8. Challenging the position taken by Defendants in support of their
Motion, Plaintiff argues that the “proper focus for determining the accrual of the § 1983
claims” is her personal knowledge of the factual circumstances of Mr. Dorrough’s death,
rather than Mr. Dorrough’s knowledge of Defendants’ conduct and identities. See Pl.’s Resp.
Br. [Doc. No. 24], p.8. Plaintiff admits she retained counsel “to evaluate her potential claims
concerning the death” of Mr. Dorrough, and on March 30, 2012, the attorneys “sent LCF a
letter putting it on notice of Plaintiff’s intent to sue for the wrongful death.” See Compl.

5

The substantive right enforceable under § 1983 is an individual right of the decedent, which may
be prosecuted in “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.’” See Berry v. City of Muskogee, 900 F.2d 1489,
1504-05, 1506-07 (10th Cir. 1990) (quoting 42 U.S.C. § 1983).

6

[Doc. No. 1], ¶¶ 6-7. But Plaintiff maintains that the facts known to her at that time were
insufficient “to assert any claims against any unknown employees of LCF under the current
federal pleading standards” and, therefore, were not “sufficient to trigger the running of the
statute of limitations” for § 1983 claims regarding Mr. Dorrough’s death. See Pl.’s Resp. Br.
[Doc. No. 24], pp.10-11 (quoting Compl., ¶ 8).
The Court is not persuaded by these arguments. Although the parties have not cited
binding precedent for their respective positions regarding the accrual of the § 1983 claims
asserted, and the Court is aware of none, independent legal research has uncovered helpful
case law. In Robert L. Kroenlein Trust ex rel. Alden v. Kirchhefer, 764 F.3d 1268, 1276
(10th Cir. 2014), the Tenth Circuit considered whether to apply “the injury-occurrence rule”
or “the injury-discovery rule” to a claim under the federal Racketeer Influenced and Corrupt
Organizations (RICO) statute. Because RICO “does not provide an accrual rule” (id.), the
court considered case law from other circuits and its own precedents regarding claims under
the Federal Tort Claims Act, which also does not mandate a particular rule. In the end, the
court did not decide the question because it concluded the plaintiff’s RICO claims were timebarred under either rule. Id. at 1277. The rationale for that conclusion is instructive in
assessing Plaintiff’s argument that the § 1983 claims in this case did not accrue until “a
reasonable period of time after she received the DOC IA Report.” See Pl.’s Resp. Br. [Doc.
No. 24], pp.10-11.

7

In Kirchhefer, a business owner that operated a beer distributorship sued to recover
damages for monetary losses caused by a salesman’s theft of beer and resale of the stolen
beer to competitors. The thefts began in 2005 and were finally uncovered in 2007; the action
was filed in 2011. The defendants asserted that the claims were barred by RICO’s four-year
statute of limitations. The district court and the Tenth Circuit agreed. The court of appeals
reasoned that the plaintiff’s RICO injury was harm from predicate acts of wire fraud – that
is, accounting losses resulting from the beer thefts – and the injury was discovered when the
business owner learned of the losses, not when a manager later determined “who ha[d]
committed the harm” or discovered “the other elements of the RICO claim.” Id. at 1278
(emphasis in original). The plaintiff argued that its injury could not have been discovered
until the losses were traced to the salesman because “a plaintiff cannot be expected to file a
lawsuit if he is unaware who actually injured him.” Id. at 1279. The court of appeals
rejected this argument:
The point of the injury-discovery rule is to start the clock ticking on the period
in which a reasonably diligent person would determine the essential elements
of a claim; the rule does not obligate the victim to file suit at that moment. . . .
Here, once [the managers] were aware that one of several individuals
– one of several beer distributors or an employee – could be the cause of their
injury, they had four years to determine the proper person against whom to file
suit. Contrary to [the plaintiff’s] claims, [the managers] need not have
definitely determined which individual of the many possible candidates was
in fact responsible for their injury before their claims could accrue. Rather,
their RICO claim accrued once they became aware of the injury to their
business – theft of [the distributorship’s] beer.
Id.

8

The court of appeals further found that under a proper application of the injurydiscovery rule, the plaintiff had “inquiry notice” sufficient to trigger the statute of limitations
in 2005. “[A] plaintiff is on inquiry notice whenever circumstances exist that would lead a
reasonable [plaintiff] of ordinary intelligence, through the exercise of reasonable due
diligence, to discover his or her injury.” Id. at 1280 (internal quotation omitted). The
plaintiff in Kirchhefer failed to show reasonable diligence because a manager was aware of
the accounting losses due to significant discrepancies in beer purchases and sales in 2005 and
“the losses were not due to seasonal variations and there was a possibility of distributor
theft,” but the manager failed to undertake any investigation to determine the cause of the
loss at that time. Id. at 1280-81.
Similarly here, the fact that Plaintiff did not know in 2012 the identities of the
individuals who allegedly violated Mr. Dorrough’s constitutional rights or the role they
allegedly played in causing his death, does not necessarily mean the injury-discovery rule was
not triggered. Her knowledge that Mr. Dorrough died as a result of an attack by his cell mate
at LCF put her on notice of the harm – that prison officials had failed to protect
Mr. Dorrough’s safety and had failed to treat a serious medical need. The known facts about
Mr. Dorrough’s injuries and death were sufficient to lead a reasonable person to investigate
whether wrongful conduct by LCF or its employees had violated his constitutional rights.6

6

The Court is not convinced by Defendants’ argument that the discovery rule can have no
application because the accrual of Mr. Dorrough’s § 1983 claims must be judged from his perspective and
he necessarily knew the underlying facts because he was present. The factual allegations of the Complaint
largely concern Defendants’ interactions with Mr. Dorrough’s attacker and the failure of the guards on duty
(continued...)

9

Unlike the plaintiff in Kirchhefer, however, Plaintiff claims she took prompt action
to investigate the cause of Mr. Dorrough’s death – by hiring a law firm to perform an
investigation and by meeting with a legislator to seek assistance in obtaining information
when the law firm was unsuccessful. Defendants contend Plaintiff’s factual allegations are
insufficient to show she exercised reasonable diligence to discover the alleged constitutional
violations and there were avenues for obtaining information she apparently failed to use, such
as an open records request to DOC for copies of incident reports or other documents
concerning Mr. Dorrough’s death. Plaintiff apparently learned sometime before February 8,
2013, of the existence of the IA Report because her attorneys issued a subpoena to the
Comanche County District Attorney’s Office on that date to produce a copy of it.
The Court finds, however, that the issue of whether Plaintiff had “inquiry notice” of
the § 1983 claims sufficient for accrual of the claims before February 2013 (so they were
time barred when this suit was filed in February 2015) is inappropriate for resolution under
Rule 12(b)(6). It is well settled “that the issue of when a plaintiff knew or with reasonable
diligence should have known of a cause of action is a question of fact.” Maughan v. SW
Servicing, Inc., 758 F.2d 1381, 1387 (10th Cir. 1985). Plaintiff has alleged in the Complaint
a minimally sufficient factual basis from which to conclude that she was prevented from
learning in the months immediately following Mr. Dorrough’s death the necessary facts to

6

(...continued)
(Defendants Corey and Moore) to respond to calls for help during the attack. Although Mr. Dorrough may
have been aware of many of the alleged events, it is equally possible some of the prison employees’ actions
or inactions that allegedly violated Mr. Dorrough’s constitutional rights were not known to him either.

10

determine whether his Eighth Amendment rights were violated. The confidential treatment
given to the facts surrounding Mr. Dorrough’s death are shown by the IA Report itself.7 The
Court cannot say that Plaintiff’s 1983 claims are time barred as a matter of law.
For these reasons, the Court finds that Plaintiff’s § 1983 claims should not be
dismissed for failure to state a claim upon which relief can be granted within the applicable
statute of limitations.
B.

Sufficiency of the Alleged Facts to State a Plausible § 1983 Claim8
Defendants assert that the factual allegations of the Complaint are insufficient to

support an Eighth Amendment claim of excessive force or a claim of deliberate indifference
to serious medical needs. They contend the excessive force claim fails because a use of force
by a governmental actor is required and Plaintiff has not alleged that any defendant used
force against Mr. Dorrough; the only force was applied by another inmate. Defendants claim
Plaintiff is attempting recast a failure-to-protect claim as an excessive force claim, and argue
they are “unaware of any [legal] authority whatsoever which would support the proposition
that a governmental officer may by held liable for the use of ‘excessive force’ by a nongovernmental actor.” See Defs.’ Mot. Dismiss [Doc. No. 23], p.15. Similarly, Defendants
7

The cover page of the IA Report describes the highly confidential nature of the document, and this
description can properly be considered under Rule 12(b)(6) because the document was attached to the Second
Amended Petition. See Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009) (“In evaluating a
Rule 12(b)(6) motion to dismiss, courts may consider not only the complaint itself, but also attached exhibits,
and documents incorporated into the complaint by reference.”) (citations omitted).
8

The Complaint does not identify § 1983 as the basis of a claim for damages for the alleged Eighth
Amendment violations asserted in the Third and Fourth Claims for Relief against Defendants Corey and
Moore. Plaintiff argues in her brief, however, that the Complaint states a § 1983 claim for each of these
federal constitutional violations. See Pl.’s Resp. Br. [Doc. No. 24], p.15 n.1 & p.17.

11

argue that Plaintiff’s factual allegations show the only medical need of Mr. Dorrough arose
after he was attacked in his cell and that Defendants Corey and Moore did not become aware
of the need until they later found him unresponsive.
Plaintiff makes no persuasive response to these arguments. Regarding excessive
force, Plaintiff argues only that an individual may be held liable for another’s constitutional
violation if the individual’s conduct is the “moving force” behind the violation, citing Berry
v. City of Muskogee, 900 F.2d 1489,1499 (10th Cir. 1990). See Pl.’s Resp. Br. [Doc. No. 24],
p.12. Berry did not involve an excessive force claim, and has no bearing on the question of
whether a state actor may be held liable for a private individual’s use of force. It is not
inconceivable that a prison guard might deliberately incite inmate violence in a manner
designed to cause harm and so be found to have violated the Eighth Amendment standard
applicable to an excessive force claim. See, e.g., Hudson v. McMillian, 503 U.S. 1, 7 (1992);
Smith v. Cochran, 339 F.3d 1205, 1212 (10th Cir. 2003); see also Porro v. Barnes, 624 F.3d
1322, 1325-36 (10th Cir. 2010) (discussing different legal tests applied to excessive force
claims “depending on where the [injured person] finds himself in the criminal justice
system”). In this case, however, Plaintiff does not acknowledge the Eighth Amendment
standard for determining a use of excessive force – that is, force applied maliciously and
sadistically to cause harm – nor point to any allegations of the Complaint that might satisfy
the standard with regard to the conduct of Defendants Corey and Moore. Therefore, the
Court finds that Plaintiff has failed to state a plausible § 1983 claim of excessive force.

12

Regarding deliberate indifference to a serious medical need, Plaintiff relies on
allegations of the Complaint that Defendants Corey and Moore were aware Mr. Palone’s
attack on Mr. Dorrough but failed to respond. See Pl.’s Resp. Br. [Doc. No. 24], pp.13-14.
In so doing, Plaintiff equates knowledge of the attack with knowledge of a serious medical
need. See id. p.14 (quoting Compl. ¶ 135). The law is clear, however, that the subjective
component of the deliberate indifference standard “requires the prison official to disregard
the risk of harm claimed by the prisoner.” See Martinez v. Beggs, 563 F.3d 1082, 1089 (10th
Cir. 2009). As to Mr. Dorrough’s medical need, the claimed harm is his death from the
physical injuries inflicted by Mr. Palone. To establish deliberate indifference, Plaintiff must
show that Defendants Corey and Moore knew of and disregarded an excessive risk to
Mr. Dorrough, which required that they “‘must both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm exist[ed], and [they] must
also draw the inference.’” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). In
satisfying the subjective component, “the symptoms displayed by the prisoner are relevant,”
and “[t]he question is: ‘were the symptoms such that a prison employee knew the risk to the
prisoner and chose (recklessly) to disregard it?’” Id. (quoting Mata v. Saiz, 427 F.3d 745, 753
(10th Cir. 2005)).
Plaintiff does not allege any facts from which to conclude that Defendants Corey and
Moore knew the extent of Mr. Dorrough’s physical injuries or symptoms requiring medical

13

treatment until they first observed his unresponsive condition after the attack.9 This allegedly
occurred when Defendants Corey and Moore were making a routine check of inmates’ cells
at approximately 7:46 p.m.; Mr. Dorrough was pronounced dead at 8:06 p.m.

See

Compl. [Doc. No. 1], ¶¶ 2, 87-88. Plaintiff does not explain how a failure to obtain medical
care during this 20-minute interval constituted deliberate indifference to a serious medical
need. Accepting the factual allegations of the Complaint, the Court finds that Plaintiff has
failed to state a plausible claim that Defendants Corey and Moore may be held liable under
§ 1983 based on their deliberate indifference to a serious medical need.
C.

Conclusion Regarding Plaintiff’s § 1983 Claims
For these reasons, the Court finds that Plaintiff has stated a plausible § 1983 claim

based solely on Defendants’ alleged failure to protect Mr. Dorrough from a substantial risk
of attack by Mr. Palone.
II. Plaintiff’s State Constitutional Claims
Defendants assert that the Complaint fails to state a Bosh claim for a violation of the
Oklahoma Constitution because the underlying facts of Bosh are distinguishable from the
alleged facts of this case. Further, Defendants assert that any Bosh claim is time barred by
the one-year statute of limitations of Okla. Stat. tit. 12, § 95(A)(11). They argue that even
if Plaintiff’s claims against them accrued in February 2013, the claims were time barred

9

Plaintiff specifically alleges that during the attack, Defendants Corey and Moore did not perceive
that a serious altercation was occurring; instead, they allegedly “laughed about the fight and Defendant Corey
even called it ‘the fakest fight ever.’” See Compl. [Doc. No. 1], ¶ 79; see also id., ¶ 135.

14

before this case was filed in February 2015. Plaintiff contends § 95(A)(11) is inapplicable
to her claims.10
Oklahoma’s general statute of limitations provides, in pertinent part, as follows:
A.
Civil actions other than recovery of real property can only be brought
within the following period, after the cause of action shall have accrued, and
not afterwards:
*

*

*

11. All actions filed by an inmate or by a person based upon facts that
occurred while the person was an inmate in the custody of one of the
following:
a. the State of Oklahoma,
b. a contractor of the State of Oklahoma, or
c. a political subdivision of the State of Oklahoma,
to include, but not be limited to, the revocation of earned credits and claims for
injury to the rights of another, shall be commenced within one (1) year after
the cause of action shall have accrued . . . .
Okla. Stat. tit. 12, § 95(A) (emphasis added). Under Plaintiff’s reading of the statute,
§ 95(A)(11) does not apply because this action was not filed by an inmate or by “a person
based on facts that occurred while the person was an inmate.” She argues that the suit
concerns an occurrence while Mr. Dorrough was an inmate but he is not the person filing
suit. She points to a paucity of reported cases that have applied the statute to claims brought
by the estate of a deceased inmate or a personal representative of the estate.
10

Plaintiff concedes that, otherwise, her state constitutional claims under Bosh are time barred. See
Pl.’s Resp. Br. [Doc. No. 24], p.17 (stating that if § 95(11) applies, it would not affect the federal law claims
under § 1983).

15

The Court’s legal research reveals that § 95(A)(11) has largely been applied in cases
where the plaintiff was an inmate or a former inmate. In one unpublished decision, a federal
district court applied the statute to Bosh claims brought by a guardian of a former inmate who
suffered serious injuries due to a lack of medical treatment in a county jail. See Dubois v.
Bd. of Cty. Comm’rs, Case No. 12-CV-677-JED-PJC, 2016 WL 1091099, *12 (N.D. Okla.
March 21, 2016). There were relatively few occasions to utilize § 95(A)(11) at all, however,
before the Oklahoma Supreme Court in Bosh recognized a private right of action that was
not subject to the requirements and limitations of the GTCA.11 The Court finds that a
common sense reading of the statute encompasses actions filed “by a person [a decedent’s
estate] based upon facts that occurred while the person [the decedent] was an inmate in the
custody” of the State of Oklahoma.12
Further, the Court is persuaded by Defendants’ argument that a Bosh claim brought
by a decedent’s estate is a survival action “subject the statute of limitations that would have
been binding on the decedent had he lived.” See Defs.’ Reply Br. [Doc. No. 25], p.10 (citing
Kimberly v. DeWitt, 606 P.2d 612, 615-16 (Okla. Civ. App. 1980)). Under Oklahoma law,
like federal law, a party generally cannot assert the constitutional rights of others; where the
law authorizes one person to sue for a violation of another person’s right, such as a parent
11

The Oklahoma Supreme Court has held that “where the GTCA includes specific provisions, the
general statute of limitations does not apply.” Hall v. GEO Group, Inc., 324 P.3d 399, 405 (Okla. 2014).
12

Under Oklahoma law, “the primary goal of statutory interpretation is to ascertain and follow the
Legislature’s intention. ‘[T]he plain meaning of a statute’s language is conclusive except in the rare case
when literal construction produces a result demonstrably at odds with legislative intent.’” Duncan v. Okla.
Dep’t of Corr., 95 P.3d 1076, 1079 (Okla. 2004) (citations omitted; quoting Samman v. Multiple Injury Trust
Fund, 33 P.3d 302, 307 (Okla. 2001)); see also Ledbetter v. Howard, 276 P.3d 1031, 1035 (Okla. 2012).

16

suing on behalf of a minor child, “the [parent] steps into [the child’s] shoes for all purposes.”
See Gens v. Casady Sch., 177 P.3d 565, 571 & n.28 (Okla. 2008). Plaintiff, acting as the
personal representative of Mr. Dorrough’s estate to bring constitutional claims on his behalf,
cannot escape the statute of limitations that would otherwise apply to his claims.
Therefore, the Court finds that the state constitutional claims that Plaintiff seeks to
assert under Bosh are time barred by operation of § 95(A)(11).
Conclusion
For these reasons, the Court finds that the Complaint fails to state a plausible claim
on which relief can be granted, except Plaintiff’s § 1983 claims against Defendants alleging
a violation of Mr. Dorrough’s Eighth Amendment right to protection from inmate violence.
IT IS THEREFORE ORDERED that Defendants’ Motion to Dismiss [Doc. No. 23]
is GRANTED in part and DENIED in part, as set forth herein.
IT IS FURTHER ORDERED that Plaintiff shall show cause within 14 days from the
date of this Order why the unidentified defendants, named as “John Does 1-99,” should not
be dismissed pursuant to Fed. R. Civ. P. 4(m) for failure to effect timely service of process.
IT IS SO ORDERED this 12th day of July, 2016.

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